Calif. Supreme Court debates validity of same-sex marriages
March 6, 2008 3:18 PM
The Supreme Court of California heard final oral arguments of the constitutionality of San Francisco’s same-sex marriages on March 4, culminating four years of divisive legal battles in the trial and appellate courts.
The city of San Francisco, along with 23 couples and the National Center for Lesbian Rights, are challenging California law in four lawsuits after 4,000 same-sex marriages granted at San Francisco City Hall were nullified. The plaintiffs collectively asked the court to decide: “Does California’s ban on same-sex marriage violate the state constitution by denying equal protection of the laws on the basis of sexual orientation?”
“Yes,” said San Francisco Chief Deputy City Attorney Therese Stewart. She headlined the four plaintiffs in the opening argument, which included attorneys Shannon Minter of the National Center for Lesbian Rights, Michael Maroko, and Waukeen McCoy. Stewart compared the terminology of domestic partnerships as opposed to marriage to the Brown v. Board of Education era—public schools as opposed to colored person schools.
“Words matter, names matter,” Stewart said. “Changing the word ‘marriage’ [for same-sex couples] is like that. Using the term ‘domestic partnership’ is not equal to marriage.”
Stewart used the precedent of Perez v. Sharp, a 1948 case brought to the California Supreme Court to decide upon the constitutionality of banning interracial marriages. The court ruled in favor of interracial marriage claiming that a ban would violate the Fourteenth Amendment.
The defendants, who included the state of California, disagreed with using Perez v. Sharp as precedent, claiming it was a case based on eradicating racial discrimination and white supremacy. Plus, the institution of marriage as being between a man and a woman remained the same, the defense argued.
“The definition of marriage has proved itself through time,” said Deputy Attorney General Christopher Krueger, representing the state. “This decision should be made through the legislative process so the people can decide.”
Justice Joyce Kennard told Krueger that parts of the definition of marriage—which used to include incest, polygamy and the ownership of women—had significantly changed over time. She also told Krueger the question of same-sex marriage had been proposed on the ballot in California twice, in 2005 and 2007. In both instances, Gov. Arnold Schwarzenegger vetoed bills in favor of same-sex marriage, arguing that the courts should decide the issue and citing Proposition 22, the 2000 measure that defined marriage as being between a man and a woman.
“What is your argument?” she asked. “To put it through again?”
The justices levied a slew of difficult questions at Kruger, with Justice Marvin Baxter asking him if he believed in the statute of “separate but equal.” Justice Carlos Moreno weighed in, asking if he was suggesting California’s Constitution had less power than federal law. And Justice Kathyrn Werdagar wondered to Kruger if there was a “constitutional recognition” where marriage was explicitly defined as between a man and a woman. Kruger replied “no” to each question.
The defense also included attorneys Kenneth C. Mennemeier, who represented Gov. Schwarzenegger, Glen Lavy of the Proposition 22 Legal Defense and Education Fund, and Mathew D. Staver of the Campaign for California Families. They argued that domestic partnerships offered the necessary legal rights for same-sex couples and that Proposition 22 speaks for itself.
The court has 90 days to deliberate and issue a verdict. Both parties said they’re optimistic about the outcome.
The auditorium downstairs from the courtroom contained a packed audience of same-sex couples, journalists, interested parties and those who filed amicus briefs in support of same-sex marriage. A circus of protestors, supporters, plaintiffs and defendants commingled at the courtroom’s entrance at McAllister and Hyde streets. Some supporters brought wedding bouquets and heart-shaped stickers, a sharp contrast to their opposition who bore bold face signs that read “Homosexuality is Sin,” “Re-criminalize Sodomy” and “Gay = Pervert.” A red van decorated with cardboard cutouts of the cross, the American flag and anti-same-sex sentiments drove in circles around the courthouse block. By mid-day, proponents of same-sex marriage elbowed their way into the crowd with signs that read “Stop Using Jesus to Promote Hatred.”
“Remember what Jesus said about homosexuality?” asked Rev. Lindi Ramsden, executive director of the Unitarian Universalist Legislative Ministry from Sacramento.
“Oh yea, nothing!” replied Attorney Eric Alan Isaacson. “The symbolism of the statute denying two same-sex people the ability to marry is like saying some people’s love is less than others, that some people’s love is unsanctified.”
Ramsden and Isaacson represented two of the 400 amicus briefs that were filed by legal groups and religious and civil rights organizations. They discussed the underlying issue of the defense’s religious convictions that same-sex marriage is unholy.
“We are quite frankly saddened to see the Catholic Church here saying ‘no, no, no,” Ramsden said. “If you look at Spain, a nation that’s almost completely Catholic, [same-sex marriage] is allowed. Other countries have realized it’ll do no good to deny citizens of their rights.”
Ramsden, a lesbian, has performed marriage ceremonies in her church since becoming a reverend.
SF State student and Queer Alliance member Ayana Walker, 19, said another issue facing the gay community is the portrayal of homosexuality in the media.
“It’s like homophobia is the new racism,” Walker said. “Like we’re subhuman.”
Walker, along with two other Queer Alliance members, Amber Rivard, 20, and Vanessa Gioso, 19, agreed that with young people, it’s also an issue of education.
“Some people feel like they’re not ready for it yet,” Gioso said. “And education is part of it. Homophobia is based on an irrational fear, and irrational fear comes from a lack of knowledge and understanding. If people were educated about it, it wouldn’t be as common.”
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