Mar 07, 2008  |  By: JOSHUA LYNSEN  | COMMENTS     

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 ...