Same-sex marriage on
court docket
California justices
to hear case Tuesday
By Greg Moran, from
the Web, March 2, 2008
The California Supreme Court convenes
Tuesday for an extraordinary, three-hour session on the most contentious issue
the high court has confronted in years: whether same-sex couples should be
allowed to legally marry.
It is an issue charged with emotion and strong feelings on all sides, stirring
up the kind of passion courts see in cases involving abortion or the death
penalty.
The court's final ruling, expected in June, will not only affect the state's
90,000 same-sex couples but also possibly reverberate across the nation.
Massachusetts is the only state that has legalized same-sex marriage, but a
state as large and powerful as California could set the tone for efforts to
change marriage laws in other states and reverse a losing trend for
same-sex-marriage advocates, legal experts said.
The Maryland Supreme Court in September joined high courts in New York and
Washington state in ruling that same-sex couples do not have a constitutional
right to marry. In 26 other states, constitutional amendments ban such
marriages.
“With a win at the California Supreme Court, the landscape will shift in a way
that is lasting and enduring,” said Kate Kendell, executive director of the
National Center for Lesbian Rights. “California holds a unique place in
the larger culture. We are often in the vanguard on issues like this.”
The California law that limits marriage to heterosexual couples is being
challenged by 15 same-sex couples as well as the city of San Francisco and a
gay-rights group, who argue that the ban is unconstitutional discrimination.
The seven justices will have to base their ruling on their analysis of legal
arguments contained in the thousands of pages of briefs submitted by an
astonishing range of interest groups.
Whatever the ruling by the court, it probably will not still the supercharged
debate over same-sex marriage.
“The court is not going to rule on the public-policy issue of whether same-sex
marriage is a good or bad thing for society,” said Supervising Deputy Attorney
General Christopher Krueger, one of several state lawyers who will be defending
the state law.
“The court is only going to rule on whether the state is compelled by the
constitution to legalize same-sex marriage.”
Law and society
As justices anchor their decision in the law, they will have to ignore the
strong social and emotional currents about the nature of marriage and what a
family is or is not.
However, as justices work through the arguments, it will be difficult for them
to remain insulated, said Vikram Amar, a law professor at the University of
California Davis.
“To answer the legal question, you almost have to look at the social reality,”
he said. “Is this a situation where the government is promoting X, but not
disrespecting Y? Or is it a zero-sum game, where recognizing one injures
the other?”
Lawrence Levine, a law professor at the University of the Pacific McGeorge
School of Law in Sacramento, said any legal analysis will reflect society's
wider debate.
“Deciding whether there is something sacrosanct about heterosexual marriage
takes you right into the morality of same-sex marriage,” he said. Even so,
he said the court won't “be citing Scripture or making big moral judgments
here.”
One of the plaintiffs in the case, 61-year-old Jeanne Rizzo, said not being able
to marry is a profound burden to gay and lesbian couples and their families.
She and her partner of 19 years, Pali Cooper, raised a son together in Marin
County.
“It affects you when your government, your state, says 'not quite' -– you're not
quite a family, you're not quite a couple, you're not really married,” Rizzo
said. “These are very real things to deal with.”
But opponents said a ruling allowing same-sex marriage would be destabilizing.
“To deconstruct marriage by redefining it is, over time, going to tell people
that marriage isn't important,” said Jordan Lorence, a lawyer with the Alliance
Defense Fund, a conservative Christian legal group that is involved in the case.
“There will be social consequences we can't comprehend.”
A mayor's decision
The road to the hearing Tuesday began nearly four years ago at San Francisco
City Hall, just across the street from the Supreme Court building, where the
hearing will take place.
In February 2004, Mayor Gavin Newsom ordered the clerk for the city and county
to issue marriage-license certificates to gay and lesbian couples. Nearly
4,000 licenses were issued in a month before courts ordered a halt.
Eventually, the Supreme Court ruled that local authorities had no power to issue
state-regulated licenses on their own and invalidated the licenses. But in
that decision, the justices invited a full challenge to the marriage law.
By that time, several same-sex couples and the city of San Francisco filed their
lawsuits. In March 2005, a San Francisco Superior Court judge sided with
the couples and said the law discriminated on the basis of gender and deprived
same-sex couples of the right to marry the person of their choice.
In November 2006, a state appeals court overturned that decision. It ruled
that the state had an interest in preserving the traditional definition of
marriage, and provided virtually all the rights and benefits married couples get
to same-sex couples through the establishment of registered domestic
partnerships.
Moreover, the majority opinion said the courts could not create a new definition
of marriage that would include same-sex couples. Doing so would “overstep
our bounds as a coequal branch of government,” the opinion said.
Instead, the panel said it was more appropriate to leave the issue in the hands
of the Legislature and the voters to ultimately decide.
All those arguments will be in play Tuesday. The hearing will be three
times longer than the court's normal allotted time for arguments.
Advocates for same-sex marriage contend that the prohibition denies gays and
lesbians equal protection under the state constitution.
In the advocates' opinion, the domestic-partnership laws are constitutionally
inadequate because they create a second-class citizenship status for gays and
lesbians. This “separate but equal” approach is illegal, they argue in
court papers.
“That is going to be an important aspect of the case,” said Barbara Cox, a law
professor at California Western School of Law in San Diego and an expert on
same-sex civil rights issues.
“If the court believes the domestic-partnership law does enough to equalize
benefits, they are probably not going to say marriage is required for
equal-protection purposes,” said Cox, who joined in two separate briefs from
outside groups urging the court to strike down the law.
Advocates also will argue that the law is wrong because it violates liberty and
privacy protections in the state constitution by denying same-sex residents the
“fundamental right” to marry the person of their choice.
State lawyers counter that the court should respect the history and tradition of
defining marriage as a union between a man and woman. If that definition
is to change, state lawyers wrote, “it should appropriately come from the people
rather than the judiciary.”
The court is getting plenty of help in answering the questions raised in the
case. It has received more than 40 “friend of the court” briefs from an
array of individuals and organizations.
In addition, there will be arguments from groups urging the court to support
Proposition 22. The initiative, which voters passed in 2000, changed the
state's family law to say explicitly that marriage is between a man and a woman.
Supporters of the measure will argue that a ruling changing the definition of
marriage would amount to overturning the will of the voters and threaten the
integrity of the initiative process, said Andrew Pugno, general counsel for the
Proposition 22 Defense Fund.
Pugno also represents
ProtectMarriage.com, one of two groups circulating ballot initiatives to
amend the constitution to limit marriage to a union between a man and a woman.
If such a constitutional amendment makes it on a ballot and is approved by
voters, it would trump a Supreme Court decision in the case to be heard Tuesday.
Greg Moran: (619) 542-4586;
greg.moran@uniontrib.com
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