California Marriage
Law Goes to High Court
State Supreme Court
sets aside appellate ruling
on same-sex issue,
agrees to hear arguments
Bob Egelko,
SFGate.com from the Web, December 21, 2006
The fate of same-sex marriage in
California is in the hands of the state Supreme Court.
More than two years after it nullified nearly 4,000 weddings of gay and lesbian
couples performed at San Francisco City Hall, the court voted unanimously
Wednesday to decide whether state law, which defines marriage as the union of a
man and a woman, violates a constitutional right to marry the partner of one's
choice.
The justices granted a hearing on appeals by same-sex couples and the city of
San Francisco after a state appellate court voted 2-1 on Oct. 5 to uphold the
state law, which the Legislature passed in 1977 and voters reaffirmed in 2000.
The appellate panel said the state can stick to the traditional definition of
marriage as long as it continues to grant substantially equal rights to same-sex
couples who register as domestic partners.
The state's high court, which had until February to decide whether to take the
case, moved Wednesday to grant review and set the lower court ruling aside.
The quick action is "a further sign that the court really appreciates the
importance of this issue,'' said Shannon Minter, legal director of the National
Center for Lesbian Rights, which represents 11 same-sex couples in the case.
"The court in the past has shown a tremendous understanding of lesbian and gay
couples and their families,'' Minter said. He said he was hopeful about
the outcome in light of recent rulings that upheld equal parental rights for
lesbian partners and adoption rights for same-sex couples, and required
businesses to treat domestic partners the same as spouses.
An opponent of same-sex marriage also expressed confidence.
"History, common sense and legal precedent are on our side,'' said Mathew Staver,
founder of Liberty Counsel, a religious legal organization, and an attorney for
the Campaign for California Families. "Marriage as the union of one man
and one woman transcends political ideology and is grounded in millennia of
human history.''
In seeking review of the appellate decision, supporters of same-sex marriage
were joined by Attorney General Bill Lockyer, whose office is defending the
marriage law. He argued that thousands of couples, and the general public,
deserve answers from the state's highest court on the extent of marriage rights
under the California Constitution.
Lockyer's office said in written arguments that the case gives the court a
chance to show the rest of the nation a middle path in the "all-or-nothing
battle between advocates of same-sex marriage and many of their opponents, who
would deny same-sex couples not only the legal status of marriage but also the
rights, benefits and responsibilities that are typically associated with
marriage.''
But San Francisco City Attorney Dennis Herrera said the midpoint defined by
Lockyer falls short of equality for same-sex couples.
"Without full recognition of gay and lesbian families through marriage, San
Francisco is limited in its ability to protect the equal rights of its
citizens,'' Herrera said.
The court did not say when it would hear the case. With written arguments
scheduled through at least early March, a hearing is unlikely to be held before
next fall. A ruling would follow within 90 days of oral arguments.
Wednesday's announcement came nearly two months after the New Jersey Supreme
Court ruled that same-sex couples were entitled to be treated equally with
heterosexual couples but did not have a fundamental right to marry under the
state's Constitution. The 4-3 ruling led to passage last week of a bill
establishing civil unions, which Gov. Jon Corzine is scheduled to sign today.
A similar ruling by Vermont's Supreme Court in 1999 prompted passage of a
civil-union law in that state a year later. Such a ruling is unlikely in
California, however, because the state already has a law giving domestic
partners, most of them gay or lesbian couples, virtually all the rights enjoyed
by married couples -- a law described by advocates of same-sex marriage as
separate and unequal.
Only Massachusetts' highest court, in 2003, has ruled that marriage must be
available to all couples regardless of gender. Opponents, including
outgoing Republican Gov. Mitt Romney, are trying to put a state constitutional
amendment before the voters to overturn that ruling.
The California Legislature passed a bill to legalize same-sex marriage last
year, but Gov. Arnold Schwarzenegger vetoed it, saying it conflicted with
Proposition 22, the voter-approved ballot measure, and that the issue should be
resolved in court.
A lawyer for sponsors of Prop. 22 said Wednesday that the court should follow
the voters' wishes.
"The people of California spoke in 2000, and the people's voice should be
heard,'' said attorney Glen Lavy of the Alliance Defense Fund.
The case started in February 2004, when San Francisco Mayor Gavin Newsom ordered
marriage licenses granted to same-sex couples. The state Supreme Court
called a halt a month later, then voided the City Hall weddings in an August
2004 ruling that found Newsom had exceeded his authority.
The court sidestepped the validity of the marriage law and returned the issue to
lower courts in San Francisco, where groups of couples and the city filed
separate lawsuits. Superior Court Judge Richard Kramer ruled the law
unconstitutional in March 2005, saying it violated the fundamental right to
marry the partner of one's choice -- first declared by the state Supreme Court
in a 1948 ruling on interracial marriage -- and also discriminated on the basis
of gender.
The appeals court overturned Kramer's ruling in October, saying the fundamental
right to marry applied only to opposite-sex couples and noting the steps
California has taken toward equal rights for gays and lesbians.
The Supreme Court proceeding is In re Marriage Cases, S147999
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