New York Times: Court in California Hears Gay Marriage Arguments

Dean E. Murphy, 12/23/2004

Still reeling from the passage last month of constitutional bans on same-sex marriage in 11 states, gay rights advocates moved on Wednesday to undo California’s prohibition, arguing in a court here that gays and lesbians have a ”fundamental right” to marry.

Lawyers for the City and County of San Francisco and more than a dozen same-sex couples presented their cases in San Francisco Superior Court, the first step in a lengthy legal process that will determine the constitutionality of state laws that define marriage as being only between a man and a woman. The hearing continues on Thursday.

”The state should not be able to reach into our homes and choose our life partners,” said one of the lawyers, Waukeen McCoy, who represents six same-sex couples who want to be married. ”It is bad enough when our parents do that.”

Defenders of the state ban, which is based on a law enacted by the Legislature in 1977 and a statewide initiative approved by the voters in 2000, argued against expanding marriage to include same-sex couples. Attorney General Bill Lockyer’s office was joined by lawyers for several Christian and conservative organizations that have been active in battles against same-sex marriage.

Though they differed in their reasons, the state and other lawyers argued there was nothing unconstitutional or discriminatory about a law that defines marriage in a manner consistent with tradition and the desire of most Californians.

”The word ‘marriage’ has a particular meaning to them, and they don’t want that meaning to change,” said Louis R. Mauro, a senior assistant attorney general.

Mr. Mauro added, ”Complex social policies should not be determined in this courtroom” and ”the public needs to be a part of the process.”

In addressing the 30 or so lawyers from several consolidated cases, the judge, Richard A. Kramer, said the dispute was ”not so much what marriage is about, but who gets to be married and participate in those benefits.”

Judge Kramer could issue a ruling as early as next month, and he predicted it would be appealed, ultimately to the State Supreme Court. Some groups opposed to same-sex marriages have said they would seek a constitutional amendment banning such marriages should they lose in the courts.

The constitutional challenge here is starting much the same way as the one in Massachusetts that led to the legalization of same-sex marriages there. In Massachusetts, seven couples challenged the constitutionality of that state’s ban in 2001. The Massachusetts Supreme Judicial Court ruled in favor of the couples last year, and in May the state became the only one in the country to grant marriage licenses to same-sex couples.

The rulings in the Massachusetts case were cited by several lawyers in court here and in the multitude of briefs submitted to the judge over the last few months.

The dispute in California stems from a series of lawsuits filed after Mayor Gavin Newsom of San Francisco ordered city officials last February to grant marriage licenses to same-sex couples. More than 4,000 weddings were invalidated in August by the State Supreme Court, which determined that Mr. Newsom had exceeded his authority, but the court did not address the constitutionality of the state laws restricting marriage to a man and a woman.

The court hearing on Wednesday came 10 days before a new state law on domestic partnerships takes effect. Under the law, one of the most far-reaching in the country, couples who register with the state as domestic partners will be granted most of the rights and responsibilities of married couples. On Tuesday, a state appeals court denied a request by opponents of the law to block it.

R. Bradley Sears, executive director of the Charles R. Williams Project on Sexual Orientation Law at the University of California, Los Angeles, said the close timing of the court hearing in San Francisco and the new domestic partnership law illustrated ”where the state is at” in the debate over rights for same-sex couples.

”There is majority support for recognition of same-sex couples through something that isn’t called marriage, and majority opposition to something called marriage,” Mr. Sears said.

Mr. Mauro, of the attorney general’s office, argued to Judge Kramer that the new law was evidence that California had no intention of discriminating against same-sex couples, a main contention of the lawyers for the city and the same-sex couples. ”California is a leader in affording rights,” he said.

Shannon Minter, a lawyer for the National Center for Lesbian Rights, which represents 12 same-sex couples who have sued the state, said the domestic partnership law was no substitute for marriage. He asked how many heterosexual couples would be willing to trade their marital status for a domestic partnership.

”It is one of the most basic civil rights,” Mr. Minter said of marriage.

The conservative and Christian groups, some of which also oppose domestic partnerships, took a different approach than the state in arguing against same-sex marriages. Lawyers for two groups suggested that they had no place in California law because marriage was an institution based on procreation.

”This case is not about existing rights,” said Glen Lavy, a lawyer for the Alliance Defense Fund, a Christian advocacy group in Arizona. ”It is about creating new rights.”

”The fundamental right to marriage has always been about procreation,” Mr. Lavy said.

Judge Kramer did not allow television cameras in the courtroom, but that did not damper interest. Cameras were set up in another courtroom, where lawyers made statements and many of the same-sex couples answered questions. At one point, the opposing sides got into a tiff, when a lawyer for the Alliance Defense Fund asked the couples to move away from the cameras.

”This is a prop,” the lawyer, Benjamin W. Bull said, pointing at the rows of couples.

”Excuse me,” countered one of their lawyers, Gloria Allred. ”They are human beings, not props.”

After the Alliance Defense Fund lawyers left, Ms. Allred led the same-sex couples in singing ”We Shall Overcome.”