Same-sex marriage decision in justices’ hands 

In less than three months, Californians will know whether gays and lesbians have a legal right to marry in the state, putting a possible end to four years of legal wrangling on the issue of same-sex marriage.

The California Supreme Court took up the matter Tuesday, hearing more than 3½ hours of highly anticipated oral arguments and peppering attorneys on both sides with questions in order to decide whether state statutes defining marriage as between a man and a woman violates the California Constitution.

Arguments were made supporting same-sex marriage by San Francisco’s City Attorney, along with a stable of lawyers representing 19 same-sex couples. The group represented six cases that had their lawsuits combined to form a single case asserting that the 2000 voter-approved ban on gay marriage, Proposition 22, denies equal protection of the laws based on sexual orientation, infringes on the right to marry and denies the right to privacy.

In 2004, Mayor Gavin Newsom authorized marriage licenses to be granted to same-sex couples, and thousands streamed to City Hall to say their vows only to have the state Supreme Court nullify the marriages later that year. Although a trial court judge in San Francisco later ruled on behalf of gay marriages in 2005, an appeals court overturned the decision in 2006.

The state’s highest court has 90 days to issue an opinion, which will be the final word on whether same-sex couples can marry legally in California.

Randy Thomasson, the founder of the Campaign for Children and Families, submitted Prop. 22 and is now circulating a ballot petition for a state constitutional amendment that would only recognize opposite-sex marriages and eliminate state-granted domestic-partnership rights.

"If the high court destroys marriage, in three months there will be a vote of the people," he said.

Whether the ballot box was an appropriate place for the issue of same-sex marriage to be decided was a focal point during the justices questioning of Deputy Attorney General Christopher Krueger. The state’s lawyer also argued that the tradition of marriage as between a man and woman was at the heart of previous court decisions affecting marriage.

But societal traditions were exactly those that have been overturned in previous court cases, such as 1948’s Perez v. Hilton, when interracial marriages in California were legalized, argued attorneys for same-sex marriages.

Justices questioned, however, whether previous justices had in mind same-sex marriages when they wrote decisions the attorneys were now using.

The justices also dug at the notion that the rights and benefits granted by the state to domestic partners somehow made same-sex couples separate but equal in the eyes of the state.

Assistant City Attorney Therese Stewart, arguing on behalf of The City, said the domestic partnership law "highlights the irrationality" of denying marriage to same-sex couples.

Same-sex-marriage opponents appeared to suffer a setback after attorney Mathew Staver, representing the Campaign for California Families, argued that marriage "would lose its meaning" if gay couples could marry.

Justice Ming Chin, who had questioned gay-rights attorneys toughly, asked Stewart, "Did he just make your argument for you?"

dsmith@examiner.com

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