Lawyers spar on same-sex marriage

Posted on 13 Jul 2006 at 8:26pm
By Anne Rostow – Contributing Writer

California appeals court hears oral arguments on 6 cases this week

SAN FRANCISCO In nearly two years since John Lewis and Stuart Gaffney took part in this city’s same-sex marriage rebellion, the couple has filed three rounds of tax returns, buried a mother, vacationed in Europe and attended five weddings four involving a bride and a groom.

These are the typical joys, sorrows and rituals of couples who have been together for nearly two decades. Yet for Lewis and Gaffney, one of 4,037 pairs whose San Francisco-issued marriage licenses were invalidated by the California Supreme Court, daily domesticity also brings reminders of the legal rights they do not have and are suing to secure.

“We took a vow at San Francisco City Hall to be together for better or worse,” said Gaffney, 43. “It’s hard because while we wait, we wait in a separate and unequal status.”

Procreation not an issue

The multi-pronged effort to make gay marriage legal in California inched another step toward resolution Monday, when a state appeals court in San Francisco heard oral arguments on whether a trial judge erred in declaring the state’s existing marriage laws unconstitutional.

While the highest court in New York ruled last week that marriage is inherently tied to the ability to procreate, the state of California makes no such claim. The California Legislature has established a domestic partner registry extending to gays and lesbians almost all the rights of marriage under state law, and the California Supreme Court has issued several rulings upholding the equal status of domestic partners. Attorney General Bill Lockyer cannot suggest that same-sex relationships are sub par without contradicting state law and policy he is obliged to defend.

Instead, the state has insisted that the domestic partner registry itself illustrates that same-sex couples are treated equally in California. The state claims that California has the right to maintain a separate institution in deference to history and tradition, as long as no serious rights or benefits are being denied gay families.

High courts in New Jersey and Washington state already are deliberating cases brought by same-sex couples. But it is in California, home to more same-sex couples than any other state and where the courts and the Legislature have created one of America’s most gay-friendly environments, where a ruling could have the most impact.

6 cases appealed

The appeals court on Monday heard arguments in six related cases four of them filed by the city of San Francisco and lawyers for 20 couples seeking the right to wed, and two brought by groups who want to maintain the status quo barring same-sex unions.

“California is the most diverse state in the country, and the gay community has achieved a kind of visibility and integration here that is unlike any state,” said Jennifer Pizer, a lawyer with the Lambda Legal Defense and Education Fund who is representing gay couples in both California and Washington. “People in California, including judges and legislators, have had the opportunity to see our essential sameness.”

They key case for gay marriage supporters is Woo v. California. Hearing the case in March 2005, Judge Richard Kramer of San Francisco Superior Court ruled that the state’s existing marriage laws violate the civil rights of gays and lesbians by denying them “the basic human right the marry a person of one’s choice” and discriminating on the basis of gender and sexual orientation.

The attorney general’s office said that until lawmakers rewrite the marriage statutes, California should adhere to a traditional definition of matrimony while offerng a separate domestic partnership option to gays.

It’s a tough tightrope for the state’s attorneys, and at least one of the three appeals justices Monday was not convinced.

Justice J. Anthony Kline, the sole Democratic appointee on the panel, grilled Deputy Attorney General Christopher Krueger aggressively, calling the domestic partner registry “half a loaf” and repeatedly asking for a rationale for denying marriage rights to gays beyond an appeal to history and tradition.

Krueger responded: “It’s not a mindless adherence to tradition. It’s a meaningful adherence to a definition of marriage the way it has always been.”
Center’s attorney hopeful

Shannon Minter, legal director of the National Center for Lesbian Rights, argued the case for marriage in Woo. Brought by the lesbian center, the case was joined by Lambda Legal Defense and Education Fund, the American Civil Liberties Union, and Equality California. Another lawsuit was filed against the state by the City and County of San Francisco in the aftermath of the San Francisco weddings of 2004.

Minter, who argued for roughly 90 minutes during his time at the podium, came away from the marathon hearings cautiously optimistic.

“I hope very much that we will win in the California Supreme Court, and I think we have a very good chance of winning at this level as well,” Minter said on Wednesday.

His hopes ride on the nearly impossible likelihood that the appellate panel will embrace the conservative arguments that swayed the New York Court of Appeals majority.

“California law and public policy indicate that same-sex couples and their children must be treated equally,” Minter explained. “Both our Legislature and the California Supreme Court have established now that heterosexual parents are not entitled to any special treatment or privileges under the law and that children have to be given the same protection whether their parents are same sex or different sex. And so any procreation or child related arguments in California would somehow have to be reconciled with those existing public polices. There’s no way to do it logically.”

While the attorney general has rejected arguments based on procreation, the lawyers for the two conservative groups are trying to make the case for marriage as a vehicle for procreation. Minter said the appellate court seemed troubled by the appearance of the conservative lawyers and seemed to question whether the groups had standing to take part in the appeal.

Not the final word

The California Supreme Court put a quick end to same-sex marriages conducted in January and February 2004. but ruled that the underlying issue of marriage equality could proceed through the state courts as a separate issue.

Following Kramer’s ruling in 2005, the Legislature last year became the first lawmaking body in the nation to legalize gay marriage. Gov. Arnold Schwarzenegger vetoed the legislation, saying it was up to voters or the courts, not lawmakers, to settle the contentious issue.

The appellate panel has 90 days to decide the cases, a timetable that calls for an opinion in October. Regardless of the outcome, the ruling most likely will be appealed to the California Supreme Court, and final word on marriage rights in the most populous state in the country may be heard next year.

After seeing gay friends legally marry in Massachusetts last year, Gaffney said the passage of time makes him eager to see the issue move forward in his own state.

“It reminded us of what the lawsuit is all about here, what our friends in Massachusetts already have, which is the ability to get married and then get on with their happily married lives,” he said.

This article appeared in the Dallas Voice print edition, July 14, 2006.

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