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The New York Times
U.S.
Definition of
Marriage Is at Heart
of California Case
By ADAM LIPTAK,
nytimes.com on the Web, March 6, 2008
SAN FRANCISCO, Mar.5 -- For
almost four hours on Tuesday, the California Supreme Court heard arguments in
the most important same-sex marriage case since Massachusetts’s highest court
allowed gay and lesbian couples to marry there more than four years ago.
But it took only 15 minutes for Justice Carlos R. Moreno to identify the central
question. “Doesn’t this just boil down to the use of the m-word —
marriage?” he asked.
California has a domestic partnership law that gives gay and lesbian couples
nearly all of the legal rights and responsibilities that come with heterosexual
marriage. That leaves open the question posed by Justice Moreno, one
freighted with history, symbolism and emotion: What is so special about
marriage?
Lawyers for the same-sex couples seeking the right to marry said that marriage
was a unique expression of love and commitment and that calling their unions
anything else was a form of second-class citizenship.
Lawyers for groups opposed to same-sex marriage agreed that marriage was a
fundamental bond with ancient roots, but they drew the opposite conclusion,
saying that allowing same-sex couples to marry would undermine the institution
of marriage itself.
Lawyers for the state also opposed a constitutional right to same-sex marriage,
but they took a markedly more modest and even tentative approach. The
Legislature, they said, may parcel out nomenclature in this area largely as it
wishes, and the matter is for the political process rather than the courts.
“Realistically, you have to give society time to adjust,” said Christopher E.
Krueger, a lawyer with the state attorney general’s office.
The state ban on same-sex marriage is based on a law enacted by the Legislature
in 1977 and a statewide initiative approved by the voters in 2000 that defined
marriage as being only between a man and a woman. The question before the
court is whether those laws violate provisions of the state Constitution
protecting equality and fundamental rights.
Massachusetts is the only state that allows same-sex marriage, based on a ruling
of its highest court interpreting the state’s Constitution. The high
courts of other states, including New York, New Jersey and Washington, have said
there is no right to same-sex marriage under their Constitutions. The
Connecticut Supreme Court is expected to rule on the question shortly.
The California court heard from eight lawyers in six consolidated cases.
Therese M. Stewart, representing the city and county of San Francisco, argued
alongside three lawyers representing homosexual couples in favor of same-sex
marriage. In 2004, San Francisco issued marriage licenses to thousands of
same-sex couples until the courts put a halt to it.
“Domestic partnership and marriage are not equal,” Ms. Stewart said.
“Words matter. Names matter.”
The Supreme Court here was the first state high court to strike down a law
barring interracial marriage, in a 1948 decision called Perez v. Sharp.
The United States Supreme Court did not follow suit until 1967.
Ms. Stewart asked whether giving interracial couples the same rights under a
different name — “say we called it transracial unions instead of marriage,” she
said — would have satisfied the state Constitution in 1948.
Several of the justices seemed receptive to the analogy. Chief Justice
Ronald M. George, seen by many here as the swing vote on a closely divided
court, paused three times during the argument to quote from the Perez decision.
“The essence of the right to marry is freedom to join in marriage with the
person of one’s choice,” Chief Justice George said at one point, quoting a
passage from the Perez decision by Justice Roger J. Traynor, who would go on to
become chief justice of the court.
Lawyers for the state argued that the domestic partnership law was sufficient to
satisfy any constitutional concerns, but Chief Justice George said that by
leaving open the question of nomenclature, the state might actually have
weakened its hand. “Does this ironically put the state in a worse
position?” he asked.
Justice Joyce L. Kennard, picking up on the point, elaborated on that
possibility. “The state has effectively conceded that there is no valid
ground for distinction,” she said.
Justice Carol A. Corrigan, on the other hand, wondered about moving too fast.
“Why is this the moment,” she asked, “as opposed to 10 years from now?”
The four lawyers arguing against a constitutional right to same-sex marriage
offered varying rationales. In an unusual move, Gov. Arnold Schwarzenegger
sent his own lawyer, apparently because of a difference of opinion with the
attorney general, Jerry Brown, about the level of scrutiny the court should use
if it decides to conduct a more searching review than simply asking the state
for a rational reason for forbidding the marriages.
But the lawyers for the governor and the attorney general agreed on the
government interests that they said justified reserving the term marriage for
heterosexual unions: tradition and the will of the majority.
Two private groups went further, arguing that allowing same-sex couples to marry
would damage the families of heterosexual couples. Kenneth C. Mennemeier,
the lawyer for Mr. Schwarzenegger, disclaimed that rationale. “State law
recognizes that families take many forms,” he said, “and the state does not give
preference to one form over another.”
Mathew D. Staver, a lawyer for the Campaign for California Families, which
opposes same-sex marriage, gave a vigorous presentation on the importance of
marriage to society in general and to children in particular.
When Ms. Stewart, the lawyer for San Francisco, rose to respond, Justice Ming W.
Chin asked, “Did he just make your argument for you?”
Ms. Stewart responded, “He helped.”
Under its rules, the court here must issue its decision in 90 days. Should
it decide that the state constitution allows same-sex marriage, its ruling would
almost certainly become an issue in the presidential election. Many
political analysts believe that the Massachusetts decision, in late 2003, hurt
Senator John Kerry, the Democratic nominee in 2004, in that year’s presidential
election.
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