Gay-marriage foes face tough questions from California high court - San Jose Mercury News

Gay-marriage foes face tough questions from California high court - San Jose Mercury News

California high court
By Mike Swift and Howard Mintz
Mercury News
Article Launched: 03/04/2008 09:15:51 AM PST




12:45 p.m.: Justices probe opponents' tradition, purpose-of-marriage arguments

A group of lawyers arguing to continue the current system received some tough questioning from the justices, particularly Moreno, George and Kennard.

Christopher E. Krueger, of the state attorney general's office, argued that the state has a rational basis to reserve marriage for heterosexual couples, in part because it has an interest in preserving that traditional definition.

"This is a definition of marriage that has proven durable for the state," Krueger told the justices. "It's not just any line that was drawn here."

Krueger's argument, however, immediately ran into pointed questioning from Justice Joyce Kennard, who wanted to know why earlier "traditional definitions of marriage that prohibited people of different races from marrying, or defined a wife as the property of her husband" shouldn't similarly be allowed to stand, simply because they were traditional.

Krueger countered that California's law prohibiting interracial marriage, struck down by the California Supreme Court in 1946, "was specifically only for the invidious purpose of racial discrimination. Here, yes it is a distinction that same-sex couples aren't allowed to marry under our laws, but that is not the same kind of exclusional statute."
In making that statement, Krueger sparked questions from the justices about whether California's prohibition of gay marriage was a version of the "separate but equal" segregated public schools struck down by U.S. Supreme Court's Brown vs. Board of Education decision.

Referring to the difference between domestic partnership and marriage, Justice Moreno asked Krueger, if he was "saying that separate is equal here?"

"There are parallel institutions," Krueger began.

"But that separate is equal?" Moreno persisted.

"Here there is equality."

"And what distinguishes this," from laws that prohibited interracial marriage "is that there's no animus against gays and lesbians?"

"There's no animus."

"That that didn't motivate the creation of the law?" Moreno asked, doubt in his voice.

"It's not just that there's a lack of animus," Krueger said, arguing that the original conception of marriage couldn't have included hatred of homosexuals because no one could foresee such a thing as gay marriage so far in the past.

"Intimate relations between same-sex couples have been around for centuries, if not for thousands of years, is that correct? Does anybody dispute that?" Moreno said.

"It's pretty plain that when the marriage laws were created, when they were taken into our culture . . . they knew what marriage was," Krueger said.

Glen Lavy, a lawyer representing the Proposition 22 Legal Defense Fund, told the justices that they did not have the authority to define marriage outside of the legislative process.

"At most this Court could say the marriage laws are unconstitutional," Lavy told the justices. "I don't think this court has the constitutional authority to rewrite the laws."

Another lawyer arguing against same-sex marriage, Mathew D. Staver of the Campaign for California Families said the state has a compelling interest in protecting heterosexual marriage - the procreation of children.

Same-sex marriage "would undermine opposite-sex marriage . . . it would lose its meaning. . . . it would create a new system that is no longer recognizable as marriage," Staver said.

But when Staver said that children do best when raised by their biological parents, he drew an immediate rejoinder from Chief Justice George.

"Do you mean adoptive parents are not as adept at raising their children?" a visibly dubious George asked.


10:20 a.m.: Justices begin questioning attorneys right from the start:

Therese Stewart, San Francisco's chief deputy city attorney, was the first lawyer to present her arguments in the case, but the justices jumped in with questions less than a minute after she began speaking.

Stewart argued that domestic partnership and marriage are not exact legal equivalents, and that there is no constitutional justification to exclude lesbians and gay men from exactly sharing those rights.

But almost immediately, Stewart faced pointed questioning from Chief Justice Ronald M. George and all six other justices. The justices conceded the point that society's view of marriage is evolving. But Justice Carol Corrigan, referring to the state's vote in Proposition 22 in 2000, that limited marriage to a man and a woman, questioned why the Supreme Court should overrule the people's decision.

"Who decides where we are as California in this evolution of our understanding - of marriage? Is it for this Court to decide, or is it for the people of California to decide?"

Stewart answered that is the Supreme Court's responsibility to critically judge the Constitutionality of laws - whether they are passed by the Legislature or by initiative.

"The Court doesn't leave decisions like that to the political process," Stewart answered.

"We have raised the issue today," Stewart told the justices, responding to questions from Justices Marvin Baxter and Kathryn Werdegar about why the Court should be compelled to consider the moving forward that evolution of the legal definition of marriage now. "The state has to look at the standards of equality that exist in contemporary society."

One line of questioning the justices followed was to ask if by enacting domestic partnership, and bestowing virtually all the rights and responsibilities of marriage on same-sex partnerships, had the state opened itself to the possibility that there is no legal reason not to bestow the exact same rights on gay couples.

Stewart argued, and the justices appeared inclined to agree, that marriage was more than "a bundle of rights," but a status and identity bestowed by society.

"Hasn't this boiled down to the use of the 'M word' - marriage?" asked Justice Carlos Moreno.

"Words matter; names matter," Stewart said.

As the Justices continued their questioning of the next lawyer arguing for the plaintiffs, Shannon Minter of the National Center for Lesbian Rights, they grappled with some of the most basic questions about sexuality and marriage:

Is sexual orientation an immutable characteristic, like race or gender? Is sexual orientation a form of gender discrimination, or are these two concepts different? Have gay people always had the abstract right to marry, but were those rights simply not recognized by the institutions of government? And what is marriage, anyway?


8:55 a.m.: Crowd of supporters and opponents gathers


Vocal advocates on both sides of the gay marriage issue had already claimed the curb outside the California Supreme Court building more than an hour before arguments began, with signs like "Re-Criminalize Sodomy" dueling with "Stop Using Jesus to Promote Hatred."

Media attention was strong, with the Supreme Court getting credential requests from more than 30 media outlets, including CNN and U.S. News and World Report.

Victor Choban, who drove from Sacramento to protest against the possibility of legalizing marriage for same-sex couples, noted that Hurricane Katrina struck New Orleans just two days before the city was to hold a gay pride parade.

"I believe the Bible, that God condemns homosexuality," Choban said. "This nation is going down morally and God's judgment is very close."

In New Orleans, "God swept the streets clean," Choban said. "We're here to warn the people of San Francisco."

At the entrance to the Supreme Court building, gay marriage protester Luke Otterstad of Placerville debated what Thomas Jefferson's position on same-sex couples with Kerry Coles of San Franciso, who held up a sign saying, "Your religion is not my government."

"I'm out here so there isn't just a one-sided argument," Coles said. "It's not just about being a gay man, it's about equality, and having the same rights as any other citizen in the United States."


6 a.m.: Lawyers, advocates, opponents ready for gay marriage hearing


In a long-awaited showdown, the seven justices of the state's high court will review a divided 2006 state appeals court ruling that upheld California laws restricting marriage to a union between a man and a woman.

During today's hearing in San Francisco, the Supreme Court will hear from civil rights lawyers for gay couples who argue that the same-sex marriage ban violates their equal protection rights because they do not get the same treatment as heterosexual couples. The San Francisco city attorney's office, led by chief deputy city attorney Therese Stewart, will also argue in favor of gay marriage.

Deputy Attorney General Christopher Krueger will lead the state's defense of the current law, arguing that gay couples already essentially enjoy equal treatment because of California's strong domestic partners law.

In addition, conservative organizations opposed to same-sex marriage will argue that traditional marriage would be undermined if California permits gay couples to wed. Lawyers for those groups, led by the Arizona-based Alliance Defense Fund, insist that marriage is meant to foster procreation and therefore must be limited to heterosexual couples.

The justices have 90 days from today's arguments to rule in the case, and they typically take most or all of that time when addressing hot-button issues.




--------------------------------------------------------------------------------
Contact Howard Mintz at hmintz@mercurynews.com or (408) 286-0236.