California high court appears divided on marriage equality

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Published on March 04, 2008 with No Comments

Marriage equality activists and religious groups convened on the California Supreme Court in San Francisco today ahead of an historic hearing on the constitutionality of same-sex marriage as it relates to a constitutional guarantee of equal treatment under the law.
Photo by Luke Thomas

By Julia Cheever

March 4, 2008

The California Supreme Court appeared divided on the issue of same-sex marriage today as all seven justices peppered attorneys with questions about evolving public opinion, tradition and the role of the courts during a historic three-hour hearing in San Francisco.

The panel took the case under submission after hearing arguments in six consolidated lawsuits. It now has three months to issue a written ruling on whether the state constitution provides a right to same-sex marriage.

The case came to the high court, which has the last word on interpreting the state constitution, after four years of lower court proceedings.

Attorneys for the city of San Francisco and three sets of lesbian and gay couples argued in favor of same-sex marriage, while lawyers for state Attorney General Jerry Brown, Gov. Arnold Schwarzenegger and two private groups appeared in opposition.

Supporters say that a right to same-sex marriage is provided by the state constitutional guarantees of equal protection, privacy and a fundamental right to marriage.

Chief Deputy City Attorney Therese Stewart told the court, “Once the state has entered into the business of regulating marriage, it has to do so on an equal basis.”

State attorneys defending California laws requiring marriage to be between a man and a woman say that opposite-sex marriage is deeply rooted in tradition and the state’s domestic partnership system provides nearly equal rights.

Deputy California Attorney General Christopher Krueger argued, “We submit that when the state is acting so aggressively to protect the lives of domestic partners and protect their families, it is not irrational to retain a definition of marriage that goes back in tradition.”

Several members of the court, including Justices Carol Corrigan, Marvin Baxter and Ming Chin, asked questions about evolving public opinion and domestic partnerships that seemed to support a position of upholding the state laws.

But others, particularly Justice Joyce Kennard and Chief Justice Ronald George, strongly questioned justifications for the state laws in the second half of the hearing.

At the start of the hearing, Corrigan asked lawyers for same-sex marriage supporters, “Who decides? Is it for this court to decide or the people of California to decide?”

Corrigan said, “To me the essential question is, ‘How can we say the majority of California has turned the corner, that we’re ready to make this change?'”

Justice Ming Chin repeatedly asked attorneys on both sides, “Aren’t the rights and responsibilities of marriage partners and domestic partners substantially the same?”

Justice Kathryn Werdegar asked whether the equal protection issue could be resolved in 10 years instead of now and queried, “Is there also a principle that the Legislature is entitled to solve the problem incrementally?”

Stewart and National Center for Lesbian Rights attorney Shannon Minter argued that the court is obligated to address the constitutional questions now.

“We’re here today, we’ve raised the issue today,” Stewart said. When it came time for lawyers for the state and traditional-values groups to defend the state laws in the second half of the hearing, they ran into forceful questioning from Kennard and George.

George interrogated Glen Lavy, representing the Campaign for California Families, and Mathew Staver, speaking for the Proposition 22 Legal Defense and Education Fund, about their arguments that opposite-sex marriage is better for children.

George asked Lavy, “Why is it that the state allows same-sex couples to adopt and raise children?”

Citing a study that 32 percent of lesbian couples have children, the chief justice asked Staver, “You’re not suggesting that lesbian couples are unfit parents?”

Staver answered, “Not at all,” but said the state has legitimate reasons for supporting procreation and “genetic affiliation” for children within opposite-sex marriage.

When Lavy argued that a 2000 ballot measure limiting marriage to male-female unions “contains public policy on marriage in California,” George asked, “Isn’t the ultimate expression of the people’s will the constitution, both federal and state?”

Kennard asked Staver what adverse social effects would result from allowing same-sex marriage.

The attorney answered that marriage “would lose its meaning” and fewer people might enter into it.

Justice Carlos Moreno questioned Krueger whether the state laws reflect an intent to discriminate against gay men and lesbians.

“Are you saying separate is equal?” Moreno asked, in a reference to the 1954 landmark U.S. Supreme Court decision striking down segregation in public schools.

The state laws requiring marriage to be between a man and a woman include Proposition 22, the ballot measure passed by voters in 2000, and a law passed by the Legislature in 1977.

The case began four years ago when the city of San Francisco began issuing same-sex marriage licenses in February 2004 on the instructions of Mayor Gavin Newsom.

After about four weeks and 4,000 licenses, the state Supreme Court halted the practice, ruling in a lawsuit filed by the state. The court later ruled that the city had no authority to issue the licenses, but said separate lawsuits could be filed to test the constitutionality of state marriage laws.

Eventually, six lawsuits were filed, four by the city of San Francisco and same-sex couples and two by the Proposition 22 fund and the Campaign for California Families. Brown and Schwarzenegger joined the cases to defend the state laws.

A San Francisco Superior Court judge ruled in 2005 that same-sex couples are entitled to marry, but a state appeals court reversed that ruling the following year. The consolidated cases were then appealed to the state Supreme Court.

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