Same-Sex Marriage Goes to California Supreme Court

(Wed., 3/5/08) - Yesterday, more than three hours of oral arguments took place at the California State Supreme Court that could have an important impact on the definition of marriage for the State of California and set a precedent for the nation.

Petitioners want the California law and Constitution to recognize and legalize same-sex marriage. Respondents want the traditional definition of marriage preserved.

The case trails back to 2004, when San Francisco Mayor Gavin Newsom overstepped the laws of California with a gathering to issue marriage licenses to same-sex couples. The California Supreme Court issued an order blocking this procedure and cases were filed on both sides of the issue.

The Attorney for the petition for the City and County of San Francisco, Therese M. Stewart, was up first. She gave three initial points:

1. Domestic partnership is not equal to marriage.

2. No rational justification exists to keep restricting gays and lesbians from marriage.

3. By conditioning a marriage license on lesbians and gay men's waiver of their privacy autonomy right to intimate association, the state violates the Unconstitutional Conditions doctrine.

She proposed that for gays and lesbians to be excluded from marriage should be likened to the historical exclusion of women and blacks from institutions of higher learning.

Answering a question from the bench about how the city and county of San Francisco would feel about changing the name "marriage", she stated that the name "marriage" should not be changed by the state to give a different qualification to gays and lesbians. This would still be a form of discrimination. She later put forth that:

(a) the petitioners were also confirming homosexuality as an immutable trait which cannot be changed, and

(b) The California State Constitution is not static and we must look to contemporary notions. To uphold a law just because it's been on the books historically has not stopped the Supreme Court from changing a law before.

Several justices at times stated that Domestic Partnership laws allowed by the state already give same sex couples basically all the rights of married couples. Stewart's retort was that the Domestic Partnership laws themselves magnify why there should be no difference between allowing homosexual and heterosexual marriage. She stated that just because society doesn't see a practice as unequal doesn't make it unequal, and cited the U.S. Supreme Court decision on Lawrence v Texas sodomy case.

She says the Court must look at how the majority of the people now view marriage, and that marriage in the 19^th century looked different than it does today as far as women's identity and men's control.

For Petitioners:

Attorney Shannon Minter (National Center for Lesbian Rights), representing Rymer et al, put forth that since California's state legislature has been willing to extend tangible marital benefits while insisting on retaining the name "marriage" for heterosexual marriage, this suggests the withholding of equal rights.

One justice stated that customarily our Constitution works on the basis of the democratic process; who gets to decide when we get there? Minter answered that this is not a policy or legislative issue, but a Constitutional one. That the state shouldn't hold itself bound to the original content of the State Constitution, which was drawn up at a time when the issue of same-sex marriage would not have presented itself.

Minter was asked that, if the Constitution should be a reflection of the people's will, did the petitioners feel that the electorate was wrong in Proposition 22, which gave domestic partnership but not marriage? Yes, she responded, the petitioners felt it was wrong.

Lawyers for the other private petitioners (Tyler et al and Clinton et al), plus the ACLU, LAMBDA, and Equality California also filed briefs for the hearing.

As respondents:

Representing the State of California and its Attorney General, Supervising Deputy Attorney General Christopher E. Krueger was asked why there is a need for the Governor's interest to be represented by a separate attorney. He responded that the Governor's office does not address intermediate scrutiny (examining evolving facts), as the state is suggesting be considered, as an alternative to strictly using the most obvious rationale basis (tradition, history, etc). But the state has [the same] interest in preserving marriage as traditionally known, with its proven strength for the building blocks of family.

Several times, the justices intimated that the majority will of the people would have to be put aside to allow for same-sex marriage to be allowed by California's Constitution.

Attorney Kenneth C. Mennemeier represented Governor Schwarzenegger of California and the State Registrar of Vital Statistics. The Governor's office perceives that the State has an interest in the balance that has been struck by the Legislature, in granting domestic partnerships while upholding the common understanding of marriage. And that with changing societal ideas on what marriage should be, the Governor's office feels it should be left for the Legislative process, listening to all the voices and concerns in a democratic environment.

Mennemeier was asked to address the sexual orientation discrimination claim. He feels the statute does not differentiate based on sexual orientation, but the Governor's office does share the observation that there is little precedent to make sexual orientation as a suspect classification, except in lower courts, and this would be the first state court to do so.

Mennemeier agrees with this being a legislative issue for the democratic process. He also addressed the earlier reference to Lawrence v Texas, and that at the time of that ruling, U.S. Supreme Court Justices Kennedy and O'Connor stated that the decsion should not be used as a precedent for same-sex marriage.

Glenn Lavy (Alliance Defense Fund), representing Prop 22 Legal Defense & Education Fund, put forth that Prop 22 controls the public policy on marriage in California as a voter initiative. This is based upon the idea of all government residing in the people. He acknowledged that propositions are subject to judicial review, but the people [by majority] decided with their vote in 2000 that the current marriage law should be preserved. He argued that simply because other people are petitioning otherwise, this should not overturn the public vote.

The justices asked if he felt the court had a role, if the public policy was already expressed by 4 million people, in deciding otherwise. He stated there was no precedent for a court at this level having or taking that right. When asked whether he felt the 1946 Perez case (striking down interracial marriage) wasn't an overturning of public will, he argued it was a completely different situation, in that interracial discrimination was not recognized historically worldwide like traditional marriage has been.

Matthew Staver of Liberty Counsel represented the Campaign for California Families, asking the Court to uphold a lower court decision regarding marriage as between one man and one woman. Reasoning: Marriage transcends governments and regimes. He intended to show there was no compelling reason for this court to interfere in the democratic process.

He was swiftly asked, what is the compelling reason to agree with him? Doesn't the authority of Lawrence v Texas support the right to same-sex marriage? Staver said no, the sodomy case applies across the board to both heterosexuals and homosexuals engaging in the intimacy of sodomy, without regard to marital status.

His brief argues that (paraphrased) defining marriage as the union between a man and a woman promotes the optimal environment for the rearing of children. He was asked by Justice Joyce Kennard if same-sex couples are not as good at parenting.

Staver replied there is much discussion about that, but the state has a legitimate basis for traditional marriage. A compelling reason for traditional marriage is the integration of the sexes, not the separation of them, and in giving children the right to have biological parents.

He was asked about a 2005 decision of this court which said that, for example, nothing proves two women can't properly raise children. He stated there are a number of studies which prove that children are better adjusted when raised by both a mother and a father.

A Court decision is expected within 90 days. The entire 3/4/08 Supreme Court session can currently be heard at:

http://www.courtinfo.ca.gov/courts/supreme/audio-arch.htm , with supporting documents from all petitioners and respondents at http://www.courtinfo.ca.gov/courts/supreme/highprofile/.