By Anne Rostow – Contributing Writer

Appellate level defeat disappointing, but not surprising, plaintiffs say

California’s long-running marriage equality cases entered a final phase on Oct. 5, when a 2-1 majority on the First District Court of Appeals ruled against the same-sex couples in several coordinated lawsuits. The decision was handed down right on schedule, three months after oral arguments last July.

Jennifer C. Pizer, senior counsel in the Western Regional Office of Lambda Legal Defense and Education Fund, called the ruling “a pit-stop on the long road to justice, not a detour.”

“We believe the Supreme Court will find, as the trial court did, that there is no room in California for a “‘separate but equal’ status that serves only to stigmatize same-sex couples and their children,” Pizer said.

Lambda Legal, the ACLU, Heller Ehrman LLP and the Law Office of David C. Codell are co-counsel with the National Center for Lesbian Rights in the case.

Shannon Minter, legal director for the National Center for Lesbian Rights, said plaintiffs and their attorneys have “always known this case ultimately will be decided by the California Supreme Court,” and that she is “confident the Supreme Court will affirm the trial court’s historic ruling and strike down one of the last remaining laws to discriminate against an entire group of people in this state.”

Jeanne Rizzo and Pali Cooper, two of the plaintiffs in the case, have been together more than 16 years. They said last week they were disappointed by the appeals court’s ruling, but, “We know that history is on our side.”

“We have faith that the law will not continue to treat us as outsiders. We simply want the same legal protections as other Californians,” they said in a written statement.

After hours of tough questioning on that summer day in July, many observers expected the appellate panel to rule in favor of the state. And so they did.

The cases, led by the signature lawsuit, Woo v. Lockyer, will now proceed to the California Supreme Court, where justices will spend most of next year in briefings and deliberation.

The six separate suits include four marriage equality challenges, and two other claims lodged by conservative groups against the city and county of San Francisco. The appellate panel dropped those last two claims from the mass litigation, ruling that the conservative litigants lacked standing to participate in the home stretch. Indeed, civil rights attorneys had long insisted that the anti-gay-marriage lawyers had no business interfering in the legal process to begin with, noting that their objections to the flurry of impromptu marriages in San Francisco had become moot once the California Supreme Court nullified those weddings within a few months.

In addition to Woo v Lockyer, which was filed in early 2004, the coordinated action includes two smaller couples’ suits, as well as a challenge to the state marriage laws by San Francisco itself.

In March 2005, the marriage cases won a striking victory in San Francisco Superior Court, where Judge Richard A. Kramer ruled that the state could not restrict marriage to heterosexual couples without violating the constitution.
In a 27-page opinion, Judge Kramer wrote that marriage was a fundamental right under the Due Process Clause, one that cannot be undermined absent a compelling state interest.

On Oct. 5, however, Justices William McGuinness and Joanne Parrilli dismissed Kramer’s reasoning in familiar fashion. After acknowledging that marriage is indeed a fundamental right and must therefore be examined with the most exacting legal scrutiny, the majority then framed the debate in terms not of the right to marriage but of the right to “same-sex marriage.” The right to “same-sex marriage,” they concluded, is not fundamental and the state is therefore free to withhold it based on the slightest justification.

As for the idea that discrimination on the basis of sexual orientation requires the court to impose the tough legal standards it would bring to bear on a case of racial or gender bias, the duo of McGuinness and Parrilli ruled that sexual orientation was not demonstrably an innate characteristic and that gays and lesbians therefore did not fit the definition of a protected class.

As with other courts that have ruled against gay rights, once the so-called standard of review was set to the lowest possible level, the majority had a simple task in finding that the state had met the easy test.

Unlike New York and Washington, where state attorneys had argued that marriage and “natural” procreation were inextricably linked, California’s Attorney General took a different tack. Here, the state explained that California’s domestic partner laws offered virtual equality to same-sex couples, hence the state had the right to reserve the word “marriage” for heterosexual couples as a gesture to tradition and history.

Justice Anthony Kline offered a 51-page opinion in dissent.

“The conclusion my colleagues reach is preordained by a false premise,” he wrote. “Respondents are no more asserting a “‘right to same-sex marriage’ than the plaintiffs in Perez v Sharpe were asserting a right to interracial marriage. Respondents do not seek the establishment of a “‘new’ constitutional right to serve their special interests, but rather the application of an established right to marry a person of one’s choice.”

The reference to Perez v. Sharpe evoked a landmark opinion by the California Supreme Court, which in 1948 became the first state court in the United States to strike anti-miscegenation laws as unconstitutional. Civil rights advocates are hoping the current high court justices live up to that legacy when they have the last word on same-sex marriage either late next year or at some point in 2008.

In another California marriage case, the U.S. Supreme Court has declined to take review of a federal challenge to the Defense of Marriage Act, launched by two men in Southern California. Strangely, the court’s evasive action was good news, both to marriage foes like Mat Staver of the Liberty Counsel, and to LGBT advocates, who urged the plaintiffs to drop the dangerous lawsuit.

Arthur Smelt and Christopher Hammer filed a federal suit after trying and failing to obtain a marriage license in Orange County in 2004. Not satisfied with what looked to be a doomed challenge to the 1996 Defense of Marriage Act, the pair also asked the federal judge to take a stand on California’s marriage laws, even as the Woo cases were proceeding through the state courts. A lower court judge went ahead and upheld the Defense of Marriage Act, but reserved judgment on the state issues in view of the pending litigation. Smelt and Hammer then appealed to the U.S. Court of Appeals for the Ninth Circuit.

Although LGBT lawyers feared that the case could result in an anti-gay ruling at the federal appellate level, they breathed a sigh of relief when the Ninth Circuit ruled narrowly that the two men lacked standing to challenge the 1996 law. The Defense of Marriage Act defines marriage as heterosexual for federal purposes, and allows each state to decide whether or not to recognize a legal same-sex marriage from beyond its borders.

Since Smelt and Hammer were not legally married in any territory, they were not in a position to question the statute in court. The Ninth Circuit panel also declined to rule on the state claims in consideration of the ongoing state suits.

This article appeared in the Dallas Voice print edition, October 13, 2006. сайтчто такое баннеры