As the nation tries to read the political tea leaves in Super Duper Tuesday Part Deux, Californians are trying to guess which way the state Supreme Court is leaning after hearing oral arguments this morning on marriage equality for same sex couples in what the San Francisco Chronicle calls in its comprehensive preview "the most momentous case the court has heard in decades."
The three hour-plus arguments, presented live on California cable and CNN webcasts, essentially came down to the state and private antigay groups positing that longstanding tradition and the "will of the people" expressed in a 2000 voter-passed initiative (Prop. 22) trumped the petitioners' claim that marriage is a fundamental right belonging to each individual and that denial of that right is unconstitutional based on the protected rights of freedom of expression, privacy, and association as well as state laws banning discrimination based on gender and sexual orientation.
The case before the court consolidated four lawsuits - three by lesbian and gay couples who want to marry (see the L.A. Weekly's excellent article on the lawsuit filed by famed attorney Gloria Allred on behalf of two couples, Robin Tyler and Diane Olson and Rev. Troy Perry and Phillip De Bliek) and the fourth by the city of San Francisco defending Mayor Gavin Newsom's extraordinary decision Valentine's Day 2004 to issue marriage licenses to nearly 4,000 same sex couples until they were enjoined by the court one month later.
In 2005, San Francisco Superior Court Judge Richard Kramer ruled that banning same-sex marriage violated "the basic human right to marry a person of one's choice" and that state marriage laws discriminated on the basis of gender. But in 2006 an appeals court said the state could keep the history and tradition of the definition of marriage while also protecting state domestic partnerships laws. In the 2-1 decision, the majority wrote that, "Everyone has a fundamental right to 'marriage,' but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner."
When the California Supreme Court agreed to hear the case, known as In re Marriage Cases, S147999, 90 briefs poured in - 44 of which were amicus briefs, with 30 of those being filed in support of marriage equality. (Since the case is so high profile, all the briefs have been posted on the court's website where an audio archive of the arguments will also be posted).
Attorneys for the plaintiffs, San Francisco Chief Deputy City Attorney Therese Stewart and Shannon Minter of the National Center for Lesbian Rights, argued that the 1948 case known as Perez v. Sharp in which the court struck down California law banning interracial marriage, applied to this case. Perez recognized a "right to join in marriage with the person of one's choice," and that marriage was a "fundamental right of citizenship." The NAACP sited the case its in amicus brief on behalf of marriage equality.
In his brief, Deputy Attorney General Christopher Krueger wrote, "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."
The justices grilled Krueger on whether the state thinks "separate is equal here" and whether such animus as existed in Perez exists towards lesbians and gays.
"What distinguishes this is that (at that time) there was marriage and there was nothing," he said. "Racial discrimination had been put on marriage for no reason other white supremacy....[The plaintiffs] "talk about domestic partnership as if it's schoolhouse segregation. ... Yes, same-sex couples aren't allowed to marry under our laws, but that is not the same type of exclusion. ... Here there is equality."
Chief Justice Ronald George took judicial notice of theNew Jersey Civil Union Review Commission report released Feb. 19 that concluded that civil unions create a "second-class status" for lesbian and gay couples, rather than providing marriage equality. New Jersey Gov. Jon Corzine has said he would sign a marriage equality bill - but not during an election year. The attorney representing Gov. Arnold Schwarzenegger, said the report was "hearsay."
"Words matter, names matter," Stewart said. "It violates equal protection. ... Once the state has entered into the regulation of marriage ... it has to do so on an equal basis."
"Aren't the rights and responsibilities of domestic partners and marriage partners substantially the same?" asked Justice Ming Chin.
"This case is not about whether the domestic partnership laws are fair or equal, but whether to denying marriage to lesbians and gays is equal," said Stewart.
In 2005 and in 2007 Schwarzenegger vetoed marriage equality bills, authored by openly gay Assemblymember Mark Leno and sponsored by Equality California, the state LGBT lobbying group, which joined in the lawsuit.
EQCA has long argued that the legislature is the duly elected representatives of the people. But in briefs and his oral argument, Glenn Lavy, who represented Prop. 22 Legal Defense and Education Fund, argued that, "The people are the ultimate arbiters of public policy" - a position endorsed by Schwarzenegger in his veto messages.
Geoff Kors, executive director of Equality California put out a statement:
"The State tried to argue that this inferior, separate and unequal status is somehow sufficient, that providing us with less-than equality was somehow actually equality, and that discrimination could be justified by tradition. Then, the right wing, anti-LGBT organizations did their usual hateful and mean-spirited song and dance, arguing against all evidence that we are inferior parents and should be denied our rights. Shannon and Terry did a terrific job rebutting the arguments of the State of California and the right-wing groups."
(See the Chronicle's quick piece on the oral argumentshere.
One topic the justices broached repeatedly was the potential consequences of their decision. In the brief filed for Attorney General Jerry Brown's office, Kruger said, "One unintended and unfortunate consequence of too radical a change is the possibility of backlash."
Brown - who changed the definition of marriage to be between a man and a woman when he was governor in 1977 - also told reporters that rulings that "ride roughshod over the deeply held judgments of society" have unintended consequences - noting how Chief Justice Rose Bird, his appointee to the court, was driven out of office in the 1986 election because of her unpopular stance on the death penalty.
During oral argument, Stewart said that Brown was using "fear tactics."
The court has 90 days to publish what is sure to be a controversial decision.
But the cold hard political reality is that the justices may have already made up their minds and may release their ruling in the next four-to-six weeks - perhaps just after the April 19 deadline for signatures gathered for an anti-gay marriage constitutional amendment planned for the November ballot.
Lesbian attorney Diane Abbitt, chair of Equality California's political action committee, says:
"If the initiative qualifies, it will be on the November ballot which will get conservative Republicans out to vote in the Presidential election. It's the same old Karl Rove ploy that worked so well in 2004.
Look at all the out-of-state money that's pouring in - over $650,000 from Focus on the Family and the National Organization for Marriage in Virginia - including $250,000 from the Knights of Columbus - to pay people to gather signatures.
And they're being smart about it. They know that most Californians support giving gay and lesbian couples some measure of equality and would not repeal domestic partnerships. So they're saying that this amends the constitution to simply keep the definition of marriage the same as it is now - between a man and a woman. It makes it easier to gather signatures and vote yes in the election."
Gay people and their allies have formed a coalition called
Equality for All try to stop the initiative from getting on the ballot.
But on the initiative is on the ballot or not, the marriage decision will be a hot topic during this and upcoming elections. San Diego Mayor Jerry Sanders, for instance, is up for re-election. But the Republican's decision last September to sign a City Council resolution directing the City Attorney to file a brief in support of the marriage equality case, may cost him votes.
Sanders said his reason was personal - his daughter Lisa is a lesbian. "I've decided to lead with my heart, which is probably obvious right now, to do what I think is right and to take a stand on behalf of equality and social justice," a tearful Sanders said.
But the consequences will reverberate long past the 2008 elections - especially if Brown decides to run for governor, as expected. Right now his most talked about possible opponents in the Democratic primary - Lt. Gov. John Garamendi, San Francisco Mayor Gavin Newsom and Los Angeles Mayor Antonio Villaraigosa - all support marriage equality.