Same-sex marriage & domestic partnerships in California

Court case: 2000 to 2008

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Background:

In the year 2000, 61% of Californians passed Proposition 22 which restricts marriage to one man and one woman. However, with legislated advances that gave same-sex couples the same state rights as married couples, and the legislature passing a bill legalizing marriage, it is debatable whether such a proposition would pass today.

The California Supreme Court will have to decide whether the deciding factors in granting or denying marriage equality to same-sex couples will be:

California same-sex couples have pursued the right to marry in two ways: through the legislature and through the courts. The legislative route failed when the Governor vetoed a bill passed by the legislature to bring marriage equity to California. The court route continues.

In an earlier related case, the California Supreme Court redefined eligibility for marriage in a 1948 case Perez v. Sharp. That decision changed the definition of marriage to allow interracial couples to marry. California thereby became the first state to terminate its miscegenation laws. Six decades later, in 2008, the same court may do the same with for same-sex couples.

Timeline:

Assemblyman Mark Leno, (D-San Francisco), the author of the bill, said:

"The governor has failed his test of leadership and missed a historic opportunity to stand up for the basic civil rights of all Californians. He cannot claim to support fair and equal treatment for same-sex couples and veto the very bill that would have provided it to them." ₃

Status of SSM as of 2007-MAR-04:

Plaintiffs include 15 same-sex couples, the city of San Francisco, the National Center for Lesbian Rights, and Equality California. In opposition are State Attorney General Jerry Brown, an unknown lawyer representing Gov. Arnold Schwarzenegger, and groups such as Campaign for California Families and Liberty Counsel.

According to a San Diego Union-Tribune report, Supervising Deputy Attorney General Christopher Krueger, a state lawyer who will be defending the existing law, said:

"The court is not going to rule on the public-policy issue of whether same-sex marriage is a good or bad thing for society. The court is only going to rule on whether the state is compelled by the constitution to legalize same-sex marriage." ₅

Many conservative religious groups -- The California Catholic Conference, National Association of Evangelicals, the Union of Orthodox Jewish Congregations of America, and The Church of Jesus Christ of Latter-day Saints -- will file a single friend-of-the-court brief in opposition to allowing loving, committed same-sex couples to marry. ₅ Such opposition to equality for gays, lesbians, and bisexuals is one of the rare topics about which conservatives from many different faith groups can join forces and strongly agree.Author of the brief, Kenneth Star wrote:

"Male-female marriage is the life-blood of community, society, and the state. We rely on this honored institution for the procreation and proper formation of the next generation. Social science demonstrates, and [our] own long experience confirms, that a child fares best when raised by caring biological parents who have the deepest stake in his or her well-being and who can provide both male and female role models."

Star appears to be unaware of the growing numbers of gay, lesbian and bisexual couples who are either adopting children or conceiving them under artificial insemination. His comment about biological parents having the deepest stake in the wellbeing of their children appears to be an insult to adopting parents. Past arguments in Massachusetts courts and elsewhere that opposite-sex parents create a superior environment for the raising of children have been discredited because they were based on studies comparing families led by opposite-sex parents with those led by single parents.

According to Gay Species, a gay-positive blog by D. Stephen Heersink:

"Unitarian... [Universalists], the United Church of Christ, the Union for Reform Judaism, the Soka Gakkai branch of Buddhism, and dissident groups of Mormons, Catholics and Muslims have chosen Raoul Kennedy, a prominent San Francisco attorney, to argue for equality. Over fifty 'friends of the court' [briefs] have been filed from groups representing hundreds of organizations and individuals - professional associations of psychologists and anthropologists, city and county governments, law professors, businesses, civil rights organizations, one former state Supreme Court justice, and advocates of 'alternatives to homosexuality'." ₈

Glen Lavy, senior counsel for the Alliance Defense Fund -- a fundamentalist Christian legal defense organization, referred to the denial of the right of same-sex couples to marry saying "Californians know this is the foundation for strong families. But certain special-interest groups are trying to bypass the democratic process by asking the court to redefine marriage." ₆ It is unclear how the launching of a constitutional challenge is an undemocratic action.

Meanwhile, ProtectMarriage.com, a coalition of national, state and local groups, is conducting a petition drive as the first step towards amending the California constitution so that same-sex marriage would be made unconstitutional. They have until April to collect 1.1 million signatures in order to advance this project.

Andrew Pugno, chief counsel for the Proposition 22 legal defense fund, said:

"The folks who want to redefine marriage will not give up, and they will continue to push. The only way to protect marriage permanently is to amend the state constitution so that [it] is not subject to the whims of judges."

This is a curious statement for a lawyer to make because he must be aware that no amendment to the state constitution is permanent. It can be repealed by future action of the electorate. If support for SSM continues to increase at its present rate, it would just be a matter of time before such a repeal would take place. Thus, a constitutional amendment might well be only a temporary denial of marriage equality. ₆

Geoffrey Kors of Equality California, a gay and lesbian advocacy group involved in the case, said: "This will be one of the -- if not the -- legal landmarks in the struggle for equal rights. It will have a ripple effect not only in this country, but the whole world."

Assessment of Supreme Court hearing:

Focus on the Family Action, a fundamentalist Christian social action group commented on the hearing held on MAR-04:

"San Francisco Chief Deputy City Attorney Therese Steward argued there is no justification for excluding homosexuals from marriage."

"Glen Lavy, senior counsel for the Alliance Defense Fund, said the state has a compelling interest in protecting traditional marriage. 'It does that primarily because when men and women come together in sexual relations, so often they have children,' he told the court."

"The court has 90 days to rule. Bob Tyler, general counsel for Advocates for Faith and Freedom, said he expects the decision will be close. 'There were a couple justices that appeared to be clearly biased against our position,' he said, 'and a couple of justices who I felt like not only respected, but agreed with our position'." ₉

Religious and social conservatives often imply, as did Lavy, that opposite-sex couples are the only folks who can have children. In fact, female same-sex couples often give birth to children after in vitro fertilization or artificial insemination. Also, male same-sex couples often adopt children through an in-state adoption, out-of-state adoption, or foreign adoption. So, if the state has an interest in increasing its population, the logical response would be to encourage both opposite-sex and same-sex couples to marry and create families together.

Supreme Court rules that Proposition 22 is unconstitutional:

The British Broadcasting Corporation reported on 2008-MAY-14:

"California's top court has ruled that a state law banning marriage between same-sex couples is unconstitutional."

"The state's Supreme Court said the 'right to form a family relationship' applied to all Californians regardless of sexuality."

"The ban was approved by voters in 2000 but challenged by gay rights activists and the city of San Francisco."

"The state legislature twice passed laws to legalize gay marriage, but Governor Arnold Schwarzenegger vetoed them. He said California's court system should rule on the matter."

"The seven-judge panel voted 4-3 in favor of the plaintiffs who argued that the 2000 law was discriminatory."

" 'Limiting the designation of marriage to a union between a man and a woman is unconstitutional and must be stricken from the statute,' California Chief Justice Ron George said in the written opinion." ₁₀

Disclosure of bias:

The author of this essay is an adoptive parent and is as mad as hell at Kenneth Star's remarks.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. Man ordered to pay ex-wife alimony, despite domestic partnership," Associated Press, 2007-JUL-22, at: http://www.sfgate.com/

2. Hilary White, "California Senate Votes to Impose Same-Sex 'Marriage' on State," Life Site News, 2007-SEP-11.
3. Lynda Gledhill, "Schwarzenegger vetoes gay marriage bill as promised," SFGate.com, 2007-SEP-29, at: http://www.sfgate.com/
4. "Court sets hearing date for marriage case. Justices will have 90 days after hearing arguments to issue ruling," Dallas Voice, 2008-FEB-07, at: http://www.dallasvoice.com/
5. Thaddeus M. Baklinski, "California Supreme Court Will Begin Hearings on Homosexual Marriage Law," LifeSiteNews.com, 2008-MAR-03, at: http://www.lifesitenews.com/
6. Devon William, "Marriage on trial before the California Supreme Court," CitizenLink.com, 2008-MAR-03, at: http://www.citizenlink.org/
7. Crystal Carreon, "California high court to hear arguments on gay marriage ban," McClatchy Tribune Business News, 2008-MAR-04, at: http://www.romingerlegal.com/
8. D. Stephen Heersink, "Same-sex marriage heads to CA Supreme Court," Gay Species, 2008-FEB-18, at: http://gayspecies.blogspot.com/
9. "California Supreme Court Hears Marriage Arguments," Family News in Focus, 2008-MAR-05, at: http://www.citizenlink.org/
10. "California lifts gay marriage ban," BBC News, 2008-MAY-14, at: http://news.bbc.co.uk/