Attorney Gloria Allred, center, counsel in the gay marriage cases, walks past supporters and opponents with her client Robin Tyler, left, outside the California Supreme Court Tuesday. (Photo by Marcio Jose Sanchez/AP)
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JOSHUA LYNSEN
Friday, March 07, 2008
Questioning whether separate is equal, the California Supreme Court this week considered granting marriage rights to same-sex couples.
But the court’s seven justices did not say Tuesday they were ready to overturn state laws banning such unions. They instead asked whether gay couples need marriage since they have domestic partnerships.
“Doesn’t this really just boil down to the use of the ‘M’ word? Marriage?” said Associate Justice Carlos Moreno.
Therese Stewart, San Francisco’s chief deputy city attorney, responded that gay couples are right to demand equal access to a symbolic institution.
“If the symbol didn’t have deep meaning, we wouldn’t have eight parties here arguing the issue today,” she said. “And we wouldn’t have had 44 people join the case by way of amicus brief.”
Filed by 20 same-sex couples, two pro-gay groups, two anti-gay groups, plus San Francisco city and county, the consolidated case generated a protracted and multifarious hearing Tuesday.
Justices frequently interrupted attorneys on both sides, posing pointed questions and insisting on direct answers.
During one such moment, Moreno challenged California Deputy Attorney General Christopher Krueger’s argument that domestic partnerships and marriages are all but equal.
“Counsel, you’re saying that separate is equal here?” the justice asked. “Is separate equal?”
“Here there is equality,” Krueger said. “I think it would be a very different case if the attributes incorporated with marriage were not being provided here — but they are.”
Stewart countered that such arguments, though, were not relevant to the case at hand.
“This case is not about whether the domestic partnerships law is fair or equal,” she said. “This case is about whether denying marriage to lesbians and gay men is equal.”
Conflicting record
The case, which reaches California’s high court after Gov. Arnold Schwarzenegger twice vetoed bills that would have granted same-sex couples the right to marry, has generated a conflicting record.
San Francisco Superior Court Judge Richard Kramer ruled in April 2005 that the ban violates the state constitution’s guarantee of equal protection. He also said it violates a person’s fundamental right to marry.
Eighteen months later, the California Court of Appeal ruled 2-1 that the state may continue to bar same-sex couples from marrying. That ruling was appealed to the California Supreme Court, which agreed in December 2006 to review it.
Tuesday’s hearing was the culmination of that review and the final opportunity for both sides to make arguments in the case. A ruling is expected by June 2.
Kruger and others who sought to maintain the laws banning same-sex marriages repeatedly told the justices that they would do well to leave tradition unchanged.
“We submit that when state is acting so aggressively to protect the rights — to protect the lives — of domestic partners and enhance their families,” he said, “it is not irrational to maintain a definition of marriage that has endured the test of time.”
Stewart, however, said such arguments ignore the legal reality of the situation.
“Marriage isn’t just a tradition,” she said. “The state has made marriage into a legal institution. And like all legal institutions, marriage has to be held to constitutional standards.”
Stewart said California’s prohibition on same-sex marriage does not meet that standard.
“First, domestic partnership and marriage are not equal,” she said. “Second, there is no rational justification — or indeed any justification — for continuing to exclude lesbians and gay men from marriage.”
Shannon Minter, legal director for the National Center for Lesbian Rights, agreed.
“Marriage is protected as a fundamental right because marriage itself as a status, as an experience apart from the material benefits that are provided through marriage at any given time, means something,” he said. “And that meaning is part of what is constitutionally protected.”
Stewart said the justices should order the state to stop discriminating and permit same-sex marriages.
“Once the state has entered into the business, which it long ago did, of regulating marriage and of denying and granting access to marriage,” she said, “it has to do that on an equal basis.”
Michael Maroko, an attorney representing four gay plaintiffs, noted that the justices needed only look to Massachusetts, where same-sex marriage is legal, to know such a ruling would not wreak havoc.
“Last I looked, Massachusetts is still a state in good standing,” he said. “It’s functioning. It’s not fallen into the Atlantic.”
Premature request?
In contast, each opposing attorney asked the court to show restraint.
“It’s premature,” Kruger said, “to sort of rush ahead of the legislative process when that process is so thoroughly engaged.”
But Evan Wolfson, executive director of Freedom to Marry, said the request was not premature.
“It’s not premature to the couples and their kids who every day are being denied the dignity and protections of marriage for no good reason,” he said. “In some ways, it’s the lamest of all responses because he’s not even arguing the couples shouldn’t have it. He’s simply saying, ‘Let it happen on somebody else’s watch.’”
Wolfson told the Blade that Kruger gave no good reason to keep denying same-sex couples the ability to wed.
“As several questions and answers underscored, California has already conceded these families exist, that they should have protections and responsibilities akin to married people,” he said. “The state is trying to claim that they’re already being treated, quote unquote, equally. If all that is true, what is the reason to deny them the freedom to marry, especially in light of testimony and evidence that the denial makes their life harder?”
Kruger, however, insisted in court that the case was prematurely before the court when he discussed a recent New Jersey report that concluded civil unions do not fully protect gay couples.
“Some might look at that report and say that it is was sort of a rush to judgment because they adopted civil unions and on the one-year anniversary of civil unions, they already released this report saying they didn’t work,” he said. “I think, realistically, one must give society time to adjust.”
But Jenny Pizer, senior counsel for Lambda Legal, said the report should not be so quickly discounted.
“If the inadequacies of the system are obvious and measurable within the first year,” she said, “that seems like a good reason to recognize the law is flawed.”
Pizer told the Blade that “marriage, as an institution, has been in a constant state of revision from the earliest days of human history,” and that it would be proper for the institution to be “adjusted and improved” to meet current needs.
“The domestic partnership laws in California and elsewhere have been developed to address the terrible harms and inequalities that gay and lesbian couples experience due to our exclusion from marriage,” she said. “It’s peculiar at best to say that an obvious constitutional violation is somehow cured by providing the injured group a partial, different package that reduces some harm but leaves the most obvious violation in place.”
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