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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