Appeals court to hear same-sex marriage cases July 10

Illustration courtesy sfist.com

By Julia Cheever, Bay City News Service

July 4, 2006

SAN FRANCISCO (BCN) - A state appeals court is scheduled to hear a marathon day of arguments in San Francisco Monday on whether the California constitution gives same-sex couples the right to marry.

Christopher Krueger, a lawyer for the state, said this week, "What's at stake here is the question of whether the fragile balance the state has created between marriage and domestic partners laws should be allowed to continue to exist.''

Krueger, a supervising deputy attorney general, will argue the state's bid to have the Court of Appeal overturn a lower court ruling that found a constitutional right to same-sex marriage in California.

Krueger said, "It's rational for the state to provide same-sex couples the same rights and protections under the domestic partners laws while keeping the concept of marriage as being between opposite sexes.''

The state is appealing a decision in which San Francisco Superior Court Judge Richard Kramer last year struck down California laws requiring marriage to be between a man and a woman.

Kramer said the laws violated the state constitution's guarantee of equal protection.

On the other side, lawyers for same-sex couples have told the court in briefs that "there is a basic human right to marry the person of one's choice'' and no legitimate reason to "relegate same-sex couples to a separate, second-class status.''

Shannon Minter, an attorney from the San Francisco-based National Center for Lesbian Rights who will argue on behalf of 12 couples, said, "It's certainly the most important case I've argued and probably ever will.''

Chief Deputy San Francisco City Attorney Therese Stewart, who will also argue for same-sex marriage, said the core issue is the freedom "to work, love and live...on equal terms with one's fellow citizens.''

While appeals court arguments normally take no more than one hour, a three-judge panel will hear up to six hours of debate on six consolidated cases at Monday's session at the State Building.

Minter said, "Given that we are such a large state and the issues arose in an unusual way, it's not surprising that there are six cases.''

Four of the lawsuits, filed by the city of San Francisco and a total of 20 same-sex couples, seek a right to same-sex marriage.

The other two cases seek to uphold the state marriage laws and were filed by traditional values groups including the Sacramento-based Campaign for California Families and the Proposition 22 Legal Defense and Education Fund.

After the hearing, the justices will have 90 days to issue a written ruling.

That ruling is considered certain to be appealed to the California Supreme Court, a process that could take at least several more months.

Minter said the appellate level "is a way station, but it's a very important one.''

The two traditional-values lawsuits, which will be argued in the afternoon part of the court session, go a step farther than the attorney general's position in defending the state laws. They contend that marriage should be restricted to heterosexuals because it "is socially and culturally a child-rearing institution.''

Mathew Staver, a Florida lawyer who will argue on behalf of the Campaign for California Families, said this week that what is at stake is "the best interests of children and the stability of the family.''

"If you look at human relationships, obviously men and woman procreate. That's how children are born,'' Staver said.

The attorney wrote in a brief submitted to the court that "marriage laws are not primarily about adult needs for approbation and support, but about the well-being of children and society.''

By contrast, the state attorney general's office takes a middle ground, contending that the traditional definition of marriage can be justified in part because California is committed to providing equal rights and benefits through its domestic partner laws.

Krueger said, "We're defending the state's entire statutory scheme, both the marriage laws and the domestic partner laws.''

The attorney said, "Our most important message is that California is committed to providing rights to same-sex couples and their families.''

The cases to be argued Monday stem from but are separate from the legal battle over San Francisco's short-lived bout of granting same-sex marriage licenses in 2004.

The city granted about 4,000 licenses between Feb. 12 and March 11, 2004, when the state Supreme Court halted the practice in response to a lawsuit filed by California Attorney General Bill Lockyer.

But the high court specifically said on March 11 that it was considering only an administrative issue and that its stay did not preclude the filing of a constitutional lawsuit in Superior Court.

The city of San Francisco filed the first such lawsuit in San Francisco Superior Court on the same day and the National Center for Lesbian Rights filed the second, on behalf of same sex couples, the next day.

The lawsuits by the traditional values groups, which were originally filed to halt the San Francisco marriages, were allowed to continue in Superior Court for the purpose of seeking validation of the state laws.

In August 2004, the state Supreme Court ruled that San Francisco didn't have the authority to issue marriage licenses without the backing of an appellate court, but again emphasized that it was taking no position on whether there is a constitutional right to same-sex marriage.

The six cases raising constitutional issues then began percolating their way through the state court system, beginning with a hearing before Kramer in December 2004 and his decision in March 2005 and then moving to the current appeal before the Court of Appeal.

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