California Supreme Court askes questions
in same-sex marriage cases

Photo(s) by Luke Thomas

By Julia Cheever

June 21, 2007

The California Supreme Court Wednesday asked lawyers on both sides of a same-sex marriage dispute to answer four more questions about the legal rights and constitutional significance of marriage.

The high court posed the questions in an unusual order issued after its weekly conference in San Francisco. The order asks for supplemental briefs responding to the queries by July 18.

The panel has already received most briefs in an appeal it is considering but has not yet scheduled a hearing. It will issue a written opinion three months after the future hearing.

Lawyers in the appeal didn't agree on the impact of the questions, which include queries about the differences between domestic partnerships and marriage and the significance of the term "marriage" under the state constitution.

Shannon Minter, a National Center for Lesbian Rights attorney representing 11 same-sex couples, said, "The order is another indication the justices are very focused on this case and treating it with great seriousness."

Minter said, "The questions don't indicate one way or the other the court's leaning on the case."

Glen Lavy, a lawyer for the Proposition 22 Legal Defense and Education Fund, said, "This shows the court is asking the right questions about the case.

"It shows the court is thinking about just what the right to marriage means in prior case law and under the California constitution," Lavy said.

The attorney said he believes some of the questions stemmed from his client's argument that the concept of marriage as a union of a man and a woman was embedded in the state constitution in 1849.

Proposition 22, an initiative passed by voters in 2000, is one of several state laws requiring marriage to be between a man and a woman.

Gareth Lacy, a spokesman for California Attorney General Jerry Brown, said, "We appreciate the court's questions and we look forward to presenting our response."

Brown's office is defending the state laws.

The court itself cautioned in the order that its request "does not necessarily signify that the court will address these points in its opinion."

The panel is considering a total of six cases disputing whether same-sex couples have a right to marry under the California constitution.

Four of the lawsuits were filed by the city of San Francisco and a total of 19 gay and lesbian couples seeking the right to marry. The other two were filed by the Proposition 22 fund and the Campaign for California Families, both opposing same-sex marriage.

A San Francisco Superior Court judge ruled in 2005 that California same-sex couples do have a constitutional right to marry, but a state appeals court in San Francisco overturned that decision last year.

The court's first question asked the attorneys to list the differences in the legal rights and duties of domestic partnerships and marriage under California law.

Next, the court asked what, if any, marriage rights are embodied in the state constitution and thus can be changed only by constitutional amendment and not by the Legislature or a voter initiative.

Third, the court asked, "Do the terms 'marriage' or 'marry' themselves have constitutional significance under the California constitution?"

The final question was whether Proposition 22 means only that California can't recognize same-sex marriages from other states or whether it prohibits California same-sex marriages as well.

The voter-approved law says simply, "Only marriage between a man and a woman is valid or recognized in California."

The order signed by Chief Justice Ronald George requires the supplemental briefs to be filed by July 18 and replies by Aug. 1.

Court spokeswoman Lynn Holton said the panel would schedule a hearing date after reviewing the briefs.

Minter estimated the hearing might take place either late this year or early next year.

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