The California Supreme Court heard nearly four hours of arguments yesterday on whether the state’s laws preventing same-sex marriage are unconstitutional.
Much of the argument centered on the difference between marriage and domestic partnerships, which California passed in 2003 as AB 205. Associate Justice Ming Chin asked Deputy SF City Attorney Therese Stewart if she believed that the state’s domestic partnership offered a “substantial improvement” over previous law. Stewart answered that “substantial equality is not equality.”
In the Koret Auditorium at the San Francisco Public Library, Stewart’s answer elicited a loud cheer from the crowd. Gathered here were members of the National Center for Lesbian Rights (NCLR) and other marriage equality supporters, including some who had marriage licenses issued by Mayor Gavin Newsom four years ago who were watching oral arguments on the big screen.
“We get to be witnesses to history, and there is nowhere else I’d rather be than right here,” said NCLR Executive Director Kate Kendall. “I feel like I’ve waited my whole life for this.”
Arguing alongside Stewart on behalf of petitioners was Shannon Minter of NCLR. Both Stewart and Minter often referenced Perez v. Sharp, a 1948 California Supreme Court case that overturned laws against interracial marriage. Chief Justice Ronald George seemed to agree that the case was analogous, as he quoted from Perez at least three times throughout the proceedings. “The essence of the right to marry is freedom to join in marriage with the person of one’s choice,” he read from the Perez decision.
The state sent two attorneys – one from the Attorney General’s office and one representing Governor Arnold Schwarzenegger. Both seemed to agree that the primary reasons for upholding bans on same-sex marriage were the tradition of marriage between a man and a woman, and the will of the people who passed Proposition 22 in 2000.
It became clear from justices’ questions that the court is as divided as the nation is on same-sex marriage. Associate Justice Kennard and Chief Justice George seemed sympathetic to the petitioners, while Associate Justices Chin and Baxter seemed to side more with the state.
The newest appointee to the court, Associate Justice Corrigan, seemed to indicate she believed that the court should not circumvent the will of the people as expressed in Proposition 22. The remaining two justices on the seven judge court – Moreno and Werdegar – kept their opinions closer to the vest and asked devil’s advocate questions of both sides.
“Doesn’t this just boil down to the ‘M’ word, marriage?” asked Moreno. Matthew Staver, representing Campaign For California Families, went further than the state, stressing the importance of marriage as an institution to families and children. On rebuttal, Justice Chin asked Stewart if that argument had helped to make her case for her. She replied that it had.
As arguments continued, Mayor Gavin Newsom joined supporters in the library auditorium and briefly addressed the crowd. Comparing the case to Perez v. Sharp and other civil rights battles he said, “The inevitability of this is we will win. It’s just a matter of when, and I hope it’s now.”
Arguments kept coming back to whether or not sexual orientation should be considered a “suspect class” like race and gender. As Paul Hogarth wrote previously, “if [sexual orientation is considered a suspect class], the law must pass ‘strict scrutiny’ – it is presumed to be unconstitutional unless the government has a compelling interest and the law is narrowly tailored through the least restrictive means. If not, the law must only have a ‘rational basis’ – it is presumed to be constitutional unless those challenging it can prove it is not rationally related to any legitimate government purpose.”
Thom Lesniak of Marriage Equality watched the arguments from the library auditorium. While he doesn’t have a partner now, he says that he wants the option of marriage available to him for the future. He said he was astounded at how ill-prepared the state seemed to be for the case and has confidence that the justices will rule in favor of same-sex marriage.
The court has 90 days to come to a decision. According to the New York Times a decision in favor of same-sex marriage will have an impact on the presidential election in November by way of firing up the conservative base to turn out at the polls.
“We have come here to praise marriage, not to bury it,” Minter said, borrowing from Shakespeare. “The petitioners yearn for the status only marriage can provide.”
