Calif. Supreme Court
debates validity
of same-sex marriages
by Britte Marsh,
express.sfsu.ed from the Web, March 6, 2008
The Supreme Court of California heard
final oral arguments of the constitutionality of San Francisco’s same-sex
marriages on March 4, culminating four years of divisive legal battles in the
trial and appellate courts.
The city of San Francisco, along with 23 couples and the National Center for
Lesbian Rights, are challenging California law in four lawsuits after 4,000
same-sex marriages granted at San Francisco City Hall were nullified. The
plaintiffs collectively asked the court to decide: “Does California’s ban
on same-sex marriage violate the state constitution by denying equal protection
of the laws on the basis of sexual orientation?”
“Yes,” said San Francisco Chief Deputy City Attorney Therese Stewart. She
headlined the four plaintiffs in the opening argument, which included attorneys
Shannon Minter of the National Center for Lesbian Rights, Michael Maroko, and
Waukeen McCoy. Stewart compared the terminology of domestic partnerships as
opposed to marriage to the Brown v. Board of Education era—public schools
as opposed to colored person schools.
“Words matter, names matter,” Stewart said. “Changing the word ‘marriage’
[for same-sex couples] is like that. Using the term ‘domestic partnership’
is not equal to marriage.”
Stewart used the precedent of Perez v. Sharp, a 1948 case brought to the
California Supreme Court to decide upon the constitutionality of banning
interracial marriages. The court ruled in favor of interracial marriage
claiming that a ban would violate the Fourteenth Amendment.
The defendants, who included the state of California, disagreed with using
Perez v. Sharp as precedent, claiming it was a case based on eradicating
racial discrimination and white supremacy. Plus, the institution of
marriage as being between a man and a woman remained the same, the defense
argued.
“The definition of marriage has proved itself through time,” said Deputy
Attorney General Christopher Krueger, representing the state. “This
decision should be made through the legislative process so the people can
decide.”
Justice Joyce Kennard told Krueger that parts of the definition of
marriage—which used to include incest, polygamy and the ownership of women—had
significantly changed over time. She also told Krueger the question of
same-sex marriage had been proposed on the ballot in California twice, in 2005
and 2007. In both instances, Gov. Arnold Schwarzenegger vetoed bills in
favor of same-sex marriage, arguing that the courts should decide the issue and
citing Proposition 22, the 2000 measure that defined marriage as being between a
man and a woman.
“What is your argument?” she asked. “To put it through again?”
The justices levied a slew of difficult questions at Kruger, with Justice Marvin
Baxter asking him if he believed in the statute of “separate but equal.”
Justice Carlos Moreno weighed in, asking if he was suggesting California’s
Constitution had less power than federal law. And Justice Kathyrn Werdagar
wondered to Kruger if there was a “constitutional recognition” where marriage
was explicitly defined as between a man and a woman. Kruger replied “no” to each
question.
The defense also included attorneys Kenneth C. Mennemeier, who represented Gov.
Schwarzenegger, Glen Levy of the Proposition 22 Legal Defense and Education
Fund, and Mathew D. Staver of the Campaign for California Families. They
argued that domestic partnerships offered the necessary legal rights for
same-sex couples and that Proposition 22 speaks for itself.
The court has 90 days to deliberate and issue a verdict. Both parties said
they’re optimistic about the outcome.
The auditorium downstairs from the courtroom contained a packed audience of
same-sex couples, journalists, interested parties and those who filed amicus
briefs in support of same-sex marriage. A circus of protestors,
supporters, plaintiffs and defendants commingled at the courtroom’s entrance at
McAllister and Hyde streets. Some supporters brought wedding bouquets and
heart-shaped stickers, a sharp contrast to their opposition who bore bold face
signs that read “Homosexuality is Sin,” “Re-criminalize Sodomy” and “Gay =
Pervert.” A red van decorated with cardboard cutouts of the cross, the
American flag and anti-same-sex sentiments drove in circles around the
courthouse block. By mid-day, proponents of same-sex marriage elbowed
their way into the crowd with signs that read “Stop Using Jesus to Promote
Hatred.”
“Remember what Jesus said about homosexuality?” asked Rev. Lindi Ramsden,
executive director of the Unitarian Universalist Legislative Ministry from
Sacramento.
“Oh yea, nothing!” replied Attorney Eric Alan Isaacson. “The symbolism of
the statute denying two same-sex people the ability to marry is like saying some
people’s love is less than others, that some people’s love is unsanctified.”
Ramsden and Isaacson represented two of the 400 amicus briefs that were
filed by legal groups and religious and civil rights organizations. They
discussed the underlying issue of the defense’s religious convictions that
same-sex marriage is unholy.
“We are quite frankly saddened to see the Catholic Church here saying ‘no, no,
no,” Ramsden said. “If you look at Spain, a nation that’s almost
completely Catholic, [same-sex marriage] is allowed. Other countries have
realized it’ll do no good to deny citizens of their rights.”
Ramsden, a lesbian, has performed marriage ceremonies in her church since
becoming a reverend. “I’ve been signing marriage licenses for 20 years,
yet I can’t sign my own,” she said. “What’s the point of having the right
to marriage if you can’t marry the person you love?”
SF State student and Queer Alliance member Ayana Walker, 19, said another issue
facing the gay community is the portrayal of homosexuality in the media.
“It’s like homophobia is the new racism,” Walker said. “Like we’re
subhuman.”
Walker, along with two other Queer Alliance members, Amber Rivard, 20, and
Vanessa Gioso, 19, agreed that with young people, it’s also an issue of
education.
“Some people feel like they’re not ready for it yet,” Gioso said. “And
education is part of it. Homophobia is based on an irrational fear, and
irrational fear comes from a lack of knowledge and understanding. If
people were educated about it, it wouldn’t be as common.”
E-mail Britte Marsh @
britte@sfsu.edu
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