Bob Egelko, Chronicle Staff Writer, 03/03/2008

As gay-rights groups call for marital equality and opponents warn of a public backlash, societal decay and religious conflict, the California Supreme Court is prepared for an epic three-hour hearing Tuesday on the constitutionality of the state law defining marriage as the union of a man and a woman.

It shapes up as the most momentous case the court has heard in decades – comparable to the 1981 ruling that guaranteed Medi-Cal abortions for poor women, the 1972 ruling that briefly overturned the state’s death penalty law, and the 1948 decision, cited repeatedly in the voluminous filings before the court, that struck down California’s ban on interracial marriage.

The arguments on both sides are weighty.

Supporters of same-sex marriage invoke the state’s commitment to equality regardless of gender or sexual orientation, the needs of the children of gay and lesbian couples, the persistence of societal discrimination, and legal rights such as freedom of expression, association and privacy.

In defense of its law, the state cites a cultural tradition far older than statehood, the will of the people as expressed in a 2000 initiative, the steps California has already taken toward equal rights for gays and lesbians, and the power of lawmakers and voters to determine state policy.

Beyond those arguments, groups opposing same-sex marriage want the court to justify the state law on moral or scientific grounds, as an affirmation that limiting matrimony to a man and a woman is best for children and society.

A ruling is due within 90 days.

The case combines four lawsuits – three by nearly two dozen couples who want to marry and the fourth by the city of San Francisco, which entered the dispute after the court overturned Mayor Gavin Newsom’s order that cleared the way for nearly 4,000 same-sex weddings in February and March 2004.

The suits rely on the California Constitution, which state courts have long interpreted as more protective of individual rights than the U.S. Constitution. The plaintiffs invoke a passage in the 1948 ruling on interracial marriage – the first of its kind by any state’s high court – in which the justices recognized a “right to join in marriage with the person of one’s choice.”

Judge Richard Kramer of San Francisco Superior Court echoed that language in March 2005, when he ruled that the state’s ban on same-sex marriage violated “the basic human right to marry a person of one’s choice.” He also said the marriage law constitutes sex discrimination – prohibited by another groundbreaking California Supreme Court ruling in 1971 – because it is based on the gender of one’s partner.

But a state appeals court upheld the law in October 2006. In a 2-1 decision, the court rejected Kramer’s findings of discrimination and said California was entitled to preserve the historic definition of marriage while taking steps to protect the rights of same-sex couples who register as domestic partners.

Advocates crowd in

As the case reached the state’s high court, the participants and the arguments multiplied.

Conservative religious organizations, including sponsors of the 2000 ballot measure that reinforced the opposite-sex-only marriage law, accused the state of making a half-hearted defense of its law and sought to justify it as a pro-family measure. Marriage is for procreation, and children fare best with married fathers and mothers, they argued. They also said the definition of marriage is so deeply engrained in the law that judges have no power to change it.

The coalition of conservative religious groups warned that a ruling against the state law would “fracture the centuries-old consensus about the meaning of marriage.”

An opposing assortment of liberal denominations counseled the court against a state endorsement of “the religious orthodoxy of some sects concerning who may marry.”

The court also heard from hundreds of organizations representing psychologists, anthropologists and other professions, city and county governments, law professors, businesses, civil rights advocates and social institutions.

Judges and limits

Underlying all the arguments is a debate about the proper role of courts in a democracy, particularly on contentious social and political issues. It’s the same question – how far, and how fast, judges should move to correct injustices they perceive in the actions of elected officials – that has confronted jurists pondering such issues as segregation, school prayer and abortion.

The subject was raised with unusual frankness in written arguments by Attorney General Jerry Brown’s office, which is leading the defense of the marriage law that Brown signed as governor in 1977.

“One unintended and unfortunate consequence of too radical a change is the possibility of backlash,” said Deputy Attorney General Christopher Krueger. Same-sex marriage may someday be legalized in California, he said, “but such a change should appropriately come from the people rather than the judiciary as long as constitutional rights are protected.”

Brown said last week he wasn’t asking the court to sacrifice principles to politics, only observing that rulings that “ride roughshod over the deeply held judgments of society” can have unintended consequences.

He noted that the court majority swung from liberal to conservative after three of his appointees, including Chief Justice Rose Bird, were unseated in a 1986 election that centered on their votes to overturn death sentences.

Legitimate concern?

Lawyers for San Francisco in the same-sex marriage case nonetheless accused Brown of using scare tactics and of encouraging the justices to abandon their duty to protect the constitutional rights of all Californians, regardless of public opinion.

“Far worse than any short-term controversy a principled but unpopular decision might engender, an unprincipled, politically based decision of the sort the attorney general seeks will invite and sanction the continued stigmatization and marginalization of lesbians, gay men and their families,” said Chief Deputy City Attorney Therese Stewart.

But Cass Sunstein, a University of Chicago law professor who is not involved in the case, said concern about public reaction is a legitimate basis for judicial restraint.

Sunstein said he favors allowing gays and lesbians to marry, but fears that such a ruling in California “would have undue influence over the upcoming presidential election, would polarize the country in ways that are not desirable and would short-circuit a continuing process of democratic debate over this issue.”

That debate has reached the state Capitol, where Gov. Arnold Schwarzenegger has vetoed two bills in the past two years that would have legalized same-sex marriage, and it may intensify statewide regardless of the court ruling. Two organizations are circulating initiatives that would write the current marriage law into the state Constitution; one of the measures would also repeal recently enacted laws protecting same-sex domestic partners.

Those laws, which grant domestic partners the same rights to property, finances, child custody and other benefits that spouses receive in California, are also at the heart of the state’s case for upholding its marriage law. Brown’s office argues that the partnership laws satisfy the state’s obligation to treat same-sex couples equally and eliminate any need for judicial intervention.

“Maintaining the long-standing and traditional definition of marriage, while providing same-sex couples with legal recognition comparable to marriage, is a measured approach to a complex and divisive social issue,” Krueger wrote in his argument to the court.

Benefits for married couples

Opponents of the marriage law counter that domestic partnership is a second-class status that leaves partners without the numerous federal benefits afforded to married couples, such as Social Security payments to survivors, joint tax filing, immigration assistance, the right to help a spouse immigrate, and recognition in other states. Within California, they argue, a household becomes a family in the eyes of the public only when its partners are legally married.

“The right to marry compels the state to sanction and support a unique expression of personal commitment, and that personal commitment is not the exclusive province of those who love someone of a different sex,” said the National Center for Lesbian Rights, representing 15 same-sex couples who sued to overturn the state’s law.

Other issues abound:

— Whether the marriage law discriminates on the basis of sexual orientation, and if so, whether bias against gays belongs in the same category as laws that discriminate on the basis of race or sex, which courts rarely uphold.

— Whether the 2000 ballot measure, Proposition 22, prohibited state legislators from legalizing same-sex marriage without voter approval.

— Whether Prop. 22’s sponsors and other organizations opposing same-sex marriage have the right to participate in the case on an equal basis with the state, based on their claim that broadening the marriage law would harm husbands and wives.

Cautious court

This case may not resolve all those questions. Under Chief Justice Ronald George’s leadership since 1996, the court – with a 6-1 majority of Republican appointees – has been generally sympathetic to gay rights and civil rights, but has seldom overturned laws or thwarted popular majorities.

Over the last five years, with little dissent, the justices have established parental rights for same-sex couples, upheld an adoption procedure widely used by gays and lesbians and outlawed business discrimination against domestic partners.

But in more incendiary cases, the court has upheld the Boy Scouts’ right to exclude gays and has broadly interpreted a voter-approved ban on preferences for women or minorities in public contracting.

Few court-watchers expect California to follow the lead of Massachusetts, whose top court – relying on the state’s constitution – became the first and only tribunal to legalize same-sex weddings in 2003.

“This is a close case,” said Clark Kelso, a professor at McGeorge School of Law in Sacramento and a longtime observer of the California court. “I don’t think they will say anything like, ‘Heterosexual couples are better at raising children.’ But it’s likely that the court will not blaze a trail.

“In cases of doubt,” Kelso said, “the court is likely to tilt toward the expressed will of the people.”

The proceedings are titled In re Marriage Cases, S147999. Briefs can be viewed at www.

California Supreme Court justices

Ronald George Chief justice, 66. A former deputy attorney general and longtime state judge who was appointed to the court by Gov. Pete Wilson in 1991 and promoted to chief justice by Wilson in 1996.

Joyce Kennard Age 66. Former deputy attorney general appointed by Gov. George Deukmejian in 1989.

Marvin Baxter Age 68. Former Fresno attorney and appointments secretary to Deukmejian, who appointed him to the court in 1990.

Katherine Mickle Werdegar Age 71. Former court research attorney appointed by Wilson in 1994.

Ming Chin Age 65. Former Oakland attorney and Alameda County prosecutor appointed by Wilson in 1996.

Carlos Moreno Age 59. Former federal judge appointed by Gov. Gray Davis in 2001. The court’s only Democratic appointee.

Carol Corrigan Age 59. Former Alameda County prosecutor appointed by Gov. Arnold Schwarzenegger in 2006.

Hearing lineup

FOR SAME-SEX MARRIAGE Arguing for legalization of same-sex marriage in the hearing before the state Supreme Court:

— City of San Francisco

— Three separate groups of plaintiffs representing 23 same-sex couples from Los Angeles and San Francisco

AGAINST SAME-SEX MARRIAGE Arguing in defense of the state law that prohibits same-sex marriage:

— State attorney general

— A lawyer representing Gov. Arnold Schwarzenegger

— Proposition 22 Legal Defense and Education Fund

— Campaign for California Families

How to watch the hearing

In the courtroom: The hearing is scheduled from 9 a.m. to noon Tuesday at the courthouse at 350 McAllister St. in San Francisco. Limited courtroom seating is available.

Remote viewing: The hearing will be telecast live in the Milton Marks Conference Center in the basement of the court building, and also at Hastings College of the Law, 198 McAllister St., first-floor auditorium. Limited seating is also available in the Koret Auditorium of the San Francisco Public Library, 100 Larkin St.

On cable: The hearing can be seen on the California Channel, a cable channel whose number varies from city to city. The channel is also online at In San Francisco, the hearing will also be shown on SFGTV, Channel 26.

The law in other states

How other states treat same-sex couples.

Same-sex marriage legal: Massachusetts.

Civil unions, with most of the rights of spouses under state law: Vermont, Connecticut, New Jersey, New Hampshire.

Domestic partnerships recognized, with most of the rights of spouses under state law: California, Oregon.

Constitutional amendments outlawing same-sex marriage: Alabama, Alaska, Arkansas, Colorado, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin.

Statutes outlawing same-sex marriage: Arizona, California, Hawaii, Illinois, Indiana, Iowa, Maine, Minnesota, North Carolina, New Hampshire, Pennsylvania, West Virginia.