Constitutional equality in marriage cases submitted
to appellate court

Justices Joanne Parilly, William McGuinness and J. Anthony Kline
preside over the State of California's bid to overturn a lower court ruling
that found a constitutional right to same-sex marriage.
Photo(s) by Luke Thomas

By Elizabeth Pfeffer and Daniel Powell

July 11, 2006

The same-sex marriage debate came full circle Monday as attorneys argued its constitutionality before a State Court of Appeals, just steps from San Francisco City Hall where Mayor Gavin Newsom stunned the nation by granting marriage licenses to gay and lesbian couples in February of 2004.

Those licenses were invalidated by the California Supreme Court six months later, but the question was left hanging as to whether same-sex marriages could be authorized on the state level.

"Marriage has always through time been recognized as being of a man and a woman," Deputy Attorney General Christopher Kreuger told the three-judge panel.

Deputy Attorney General Christopher Kreuger

Because California already grants same-sex couples most of the legal parental rights of heterosexuals, marriage can be preserved as a traditional institution while affording its rights, benefits, and protections to same-sex couples through domestic partnerships, he said.

New York's Supreme Court upheld a ban on same-sex marriages last week, based on the rationale that heterosexual parents are better suited to raise children.

Kreuger repudiated the reasoning behind New York's ruling, yet maintained that same-sex couples should be confined to domestic partnerships.

Justice J. Anthony Kline, the panel's most combative member, found Kreuger's argument contradictory.

"So we have two kinds of marriage in California. What we call a domestic partnership is really the 'other' kind of marriage," Kline remarked. "Kind of a second-class marriage."

Justice J. Anthony Kline

Therese Stewart, chief deputy City attorney for San Francisco, which supports same-sex marriage, said while the parental and domestic rights offered to those couples are laudable, the end result is a "separate but equal" tenet that leaves gays and lesbians feeling "less than."

"The separate system doesn't and cannot replicate the esteem in which marriage is held and the reverence with which it's held," she said. "And at the same time it does nothing to support the stability or the longevity of heterosexual relationships."

Therese Stewart, Chief Deputy City Attorney for San Francisco

In April 2005, Judge Richard Kramer ruled that prohibiting same-sex couples from marrying violates the state constitutional guarantee of equal protection which specifies that all people have the inalienable right to obtain safety, happiness and privacy.

Kreuger, representing the state in an appeal of Kramer's verdict, did not rely on procreation as a compelling need to restrict marriage. However one other same-sex marriage opponent attempted to convince the court of the argument's validity.

"The reason why we've had marriage as one man and one woman is predominately for the procreative nature that happens when a man and a woman get together in a relationship," said Mathew Staver, attorney for the Campaign for California Families.

Mathew Staver, attorney for the Campaign for California Families
answers questions from reporters.

San Francisco City Attorney Dennis Herrera called reproductive arguments "emotional red herrings" at a press conference before Monday's hearing, citing two reasons they have no licit value in California.

San Francisco City Attorney Dennis Herrera

"The New York constitution and California constitution are quite different," Herrera said. "There's no expressed right to privacy in the New York constitution, neither is there as extensive a domestic partner scheme as you have in California."

California is home to the highest percentage of same-sex couples in the nation, according to Stewart. Of those couples at least one third are parents.

Diane Sabin, part of the 20 same-sex couples represented in the case, said the procreation argument was deeply flawed.

"Our side explained very well that marriage is a very complex, multi-faceted institution, but if you want to look at a little slice of procreation, I think their argument excludes people of certain ages with a lack of ability to procreate," she said. "It excludes significant portions of the population."

Jewelle Gomez and Diane Sabin

Indeed, the six lawsuits heard in Monday's session depended heavily upon the notion that California law already recognizes gays and lesbians as fit parents, leading Sabin to believe that the procreation argument will not be accepted by the justices.

"It's not clear to me that just because they were heard they were ruled to be valid, they just moved ahead anyway," she said.

Anti-same-sex marriage attorneys pointed to two pieces of California legislation for support: Proposition 22, a 2000 voter initiative that banned recognition of same-sex marriages performed in other states, and a 1977 amendment specifying that marriage must be between a man and woman.

Kramer's ruling struck them down, but since Gov. Arnold Schwarzenegger recently vetoed the same-sex marriage bill, it is up to the Court of Appeals to determine if a precedent should be set.

Both sides have acknowledged that whatever the verdict it will be probably be appealed to the state's Supreme Court, which could take several months.

Also on Monday, the Supreme Court of Massachusetts, the first state to legalize same-sex marriage, voted out a constitutional amendment that could abate the ruling's staying power.

The new law allows for same-sex marriage measures to be put on ballots so its standing represents the current views of voters. And although it cannot dissolve preexisting unions, opponents call the legislation highly discriminating and a step backwards for the state.

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