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No shortage of advice on same sex marriage case

By Diane Curtis
Staff Writer

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The California Supreme Court is not lacking for advice as it considers the issue of gay marriage. Forty-five amicus briefs were filed in response to the challenge by gay couples and the City and County of San Francisco to the state prohibition on same-sex marriages, arguing everything from the necessity to take into account a transformed culture to California’s role as a bellwether state to the absence of standing by San Francisco to file suit at all.

The briefs came from prominent legal scholars, legislators, civil rights and gay rights organizations, city and county governments, churches, bar associations and a former state Supreme Court justice. Of the 45 briefs, 29 supported gay marriage, 14 opposed it and one took no position but admonished the court not to base its decision on popular sentiment.

On March 4, in an unprecedented 3 1/2-hour hearing, eight attorneys — including representatives of San Francisco favoring gay marriage and representatives of the attorney general and governor opposing it — appeared before Chief Justice Ronald George and the six associate justices who are deciding four lawsuits brought on behalf of nearly two dozen gay and lesbian couples. A trial court ruled in favor of same-sex marriage, but a Court of Appeal overturned the decision.

Some friend-of-the-court briefs moved away from subjects that drew particular interest from the justices at the hearing. One group of law professors wrote of the interstate confusion and problems created when a marriage recognized in one state is not recognized in another. Jews Offering New Alternatives to Homosexuality wrote that there is no scientific evidence that homosexuality is an innate trait. Out and Equal Workplace Advocates declared that same-sex marriage “makes good business sense” because talented people will be drawn to a state that bestows such a right on gays and lesbians.

But most of the other briefs touched on the larger issues highlighted by the justices: whether same-sex marriage amounts to a fundamental right and whether the state has to meet a higher standard to deny that right; whether marriage and domestic partnerships are comparable; whether the courts or legislative process should decide gay marriage; whether tradition is a good enough reason to maintain the current definition of marriage; whether a court decision 60 years ago to lift the ban on interracial marriage corresponds to the marriage right being sought by gays and lesbians and whether the ban on same-sex marriage amounts to gender discrimination.

Chief Justice Ronald George zeroed in on the 1948 landmark Perez v. Sharp California Supreme Court decision, which marked the first striking down of the ban on interracial marriage. Justice Ming Chin repeatedly asked whether marriage and the rights and privileges given domestic partners were equivalent. Justice Carol Corrigan focused on voter readiness for a change in the marriage law.

Former Stanford Law School Dean Kathleen Sullivan, arguing for 17 constitutional law professors, countered the state’s prime argument that tradition demands the continued definition of marriage as that between a man and a woman. Using that argument, Sullivan wrote, courts would not have desegregated schools or opened doors to women. “Across a wide range of issues . . . constitutional interpretation has taken into account changed social circumstances and cultural understandings,” she wrote.

Others spoke to the issue of the justification — or not — for gay marriage when domestic partnerships are a fact of life in California, partly addressing Justice Carlos Moreno’s question about whether a name is that important, “Doesn’t this just boil down to the m-word?”

“Words matter. Names matter,” said Therese Stewart, chief deputy city attorney for San Francisco.

Numerous organizations disputed the idea that the issue was about semantics. Instead, they said, it’s about removing the stigma of separateness and second-class citizenship for both adults in same-sex relationships and their children. The Anti-Defamation League and 11 gay and lesbian organizations from throughout the state said same-sex couples, particularly those in domestic partner relationships, also are forced to “out” themselves unnecessarily. “The dual system unconstitutionally requires members of same-sex couples to publicly disclose their sexual orientation in innumerable situations in which sexual orientation and the sex of one’s partner are irrelevant,” the brief stated. The restrictive code is based on nothing more than “bare prejudice.”

In a different brief, Pepperdine University School of Law’s Douglas Kmiec and five other law professors supporting marriage as it currently stands denied that refusing to allow gays and lesbians to marry amounts to sex discrimination. “As the overwhelming majority of courts have held over the past decade . . . marriage laws do not distinguish on the basis of sex, but rather treat men and women equally.”

Some organizations, such as the Howard University School of Law Civil Rights Clinic, likened the fears about same-sex marriage to similar fears of the past that interracial marriage would be a threat to marriage and family and the established social order. In opposition, however, African American Pastors in California said it was an insult to compare the discrimination and the historical mistreatment of blacks to discrimination against gays and lesbians. “Like the institution of chattel slavery from which they arose, anti-miscegenation laws were a symptom of an institutionalized social and legal culture that systematically denied the humanity of African-Americans,” the brief said.

Chief Justice George questioned several of the attorneys about the Perez case, which states that people have the right to marry a “person of one’s choice.” Is Perez analogous? he asked. Stewart said it is and asserted that no one would have been satisfied with “transracial unions” in place of interracial marriage. Some gay marriage proponents likened such treatment to the separate but equal doctrine.

Supervising Deputy Attorney General Christopher Krueger and Kenneth Mennemeier, representing the governor, however, said the cases were not analogous because of the “racial animus” represented in Perez. Kmiec and his fellow law professors agreed. “Racial discrimination has a unique and ugly place in our nation’s history . . . Unlike interracial marriage laws, designed to segregate the races and perpetuate inequality, marriage represents an integration of the sexes, reinforcing the equal contribution of husbands and wives, mothers and fathers, in the marriage relationship.”

If sexual orientation is found to be a “suspect classification,” like race in the Perez decision, for example, opponents of gay marriage would be held to a higher than normal standard to prove their case, which can be very difficult. Former Supreme Court Justice Joseph Grodin argued that the California constitution does allow for such strict scrutiny.  

“Where the state acts in such a way as to deprive a class of persons the opportunity to obtain the kind of personal fulfillment that other citizens enjoy, and where there is reason to believe that the interests asserted by the deprived class may not be adequately protected by the majoritarian process, courts have an obligation to engage in a meaningful inquiry into the justifications asserted in support of the state’s action,” he wrote.

As for the judiciary’s role in deciding gay marriage, which was a topic of concern for several justices, friends-of-the-court briefs divided on the lines of those who favor gay marriage and those who don’t. “The judiciary should not innovate social policy,” wrote Washington-based Judicial Watch Inc. “Statutes are presumed constitutional and must not be annulled unless the constitutional conflict is clear, positive and unquestionable.”

In contrast, former Boalt Hall School of Law Dean Jesse Choper wrote that while courts should show restraint in inserting themselves into controversial issues when it is not necessary, “the resolution of alleged violations of individual constitutional rights is the central function of judicial review . . . The custodianship of these individual rights should be assigned to the governing bodies most insulated from political responsibility and least beholden to self-absorbed and existed majoritarianism.”

Choper also urged the court to ignore concerns about controversy and possible adverse public reaction to any decision they made and instead focus on “an objective application of constitutional doctrine.”

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