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The New York Times
California's Top
Court Seems Split
on Gay Marriage
By REUTERS, from
nytimes.com on the Web, March 4, 2008
SAN FRANCISCO -- The
California Supreme Court appeared divided on Tuesday over whether to allow gay
marriage during nearly four hours of oral arguments on the contentious issue
that could impact gay rights nationwide.
Several of the seven judges asked whether the state legislature might better
decide whether matrimony should be limited to a man and a woman, while others
pointed to how the same court ended the state ban on marriages between blacks
and whites after World War Two.
"I think it's going to be a divided opinion but I wouldn't want to predict who
will win," Christopher Krueger, a lawyer representing the state attorney general
who presented arguments before the judges, told Reuters.
The hearing brought into focus the highest-profile U.S. fight over gay rights in
recent years and the outcome could influence legislation and lawsuits in other
states on what has been a hot-button issue in recent election campaigns.
"California's a bellwether state. What happens here, blows east," Larry
Bowler, a retired deputy sheriff from Sacramento who opposes gay marriage, said
outside the courthouse.
Expecting heated disagreement over a case in which constitutional questions are
at stake, the state's top court scheduled a three-hour session, making a rare
exception to its one-hour limit on oral arguments. But the marathon
hearing lasted three hours and 40 minutes, and several court officials said it
was the longest such session they could remember.
"Same-sex couples come here today to praise marriage, not to bury it," said
Shannon Minter, a lawyer for clients who favor gay marriage.
NINETY DAYS TO DECIDE
The top court now has 90 days to issue an opinion, with a decision before May
unlikely. Six of the judges were appointed by Republican governors and one
by a Democrat and the panel is considered politically moderate.
Judge Joyce Kennard summed up the uncertainly about the outcome when she told a
lawyer: "You don't know where we are going."
Several judges pointed out that California already extends registered same-sex
partners essentially the same benefits as married couples. "Doesn't this
really boil down to the use of the M word, marriage?" asked Justice Carlos
Moreno.
"That symbol has deep meaning for both sides of the case," said Therese Stewart,
a lawyer representing San Francisco.
San Francisco Mayor Gavin Newsom forced the gay marriage issue by suddenly
issuing gay marriage licenses in February 2004 and allowing the nuptials in City
Hall -- across the street from the California Supreme Court's chambers.
More than 4,000 homosexual couples took Newsom up on the offer, before a court
halted the process.
Some judges asked on Tuesday how the state could bar polygamy or underage or
immediate family member marriages, but not same-sex marriages.
Gay marriage supporters won an initial battle in the case when a Superior Court
judge ruled in their favor in 2005. The following year a state appeals
court judge overruled that decision and backed existing state law.
Californians in 2000 approved a ballot measure defining marriage as the union of
man and woman. But domestic partnership legislation as of 2005 gave
registered gay couples many of the same privileges enjoyed by married couples.
California's legislature has voted twice since 2005 to allow gay marriages, but
Gov. Arnold Schwarzenegger, a Republican, vetoed the bills, saying voters or the
courts should decide the issue.
More than half of U.S. states have passed amendments barring same-sex marriage,
and President George W. Bush has proposed a U.S constitutional amendment to do
so.
State supreme courts in Massachusetts, New Jersey and Vermont have ruled against
limiting the benefits of marriage to a man and a woman. Massachusetts has
since became the only U.S. state to allow gay marriage, and New Jersey and
Vermont passed civil union laws similar to those in California.
(Editing by Phil Barbara)
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