Pivotal gay marriage hearing Monday in California Supreme Court

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By Crystal Carreon
The Sacramento Bee

Monday 03 March 2008

The California Supreme Court is set Tuesday to consider a pivotal civil rights question that has sparked controversy in courthouses and contentious public debate: Should gay couples be allowed to marry?

From its courthouse in San Francisco, the seven justices are scheduled to hear three hours of oral arguments about whether the state's ban on same-sex marriage is unconstitutional - an issue that has polarized politics and divided courts across the country for nearly a decade. But a decision by this high court, in the state with the largest number of homosexual couples, could reverberate well beyond California.

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

To date, only Massachusetts allows same-sex couples to legally marry. But supporters of gay marriage say they have hope that California's high court will channel its legacy of progressive rulings, including its landmark 1948 decision to legalize interracial marriage, in the belief that people have a fundamental right to marry whom they choose.

Social conservatives and other foes of gay marriage, however, are girding themselves for Tuesday's legal fight, which will also examine Proposition 22, the voter-approved initiative in 2000 that limited marriage to a man and woman.

New initiative drives are under way for a proposed constitutional amendment to ban gay marriage that would override a court decision and usurp the kinds of public policy confusion that has "trashed the people's vote," according to the Web site for Sacramento-based VoteYesMarriage.com, one of the groups concerned over how the high court may rule.

"The justices can destroy or protect marriage. If the justices alter the definition of marriage, then the people will certainly override them at the ballot box," said Randy Thomasson, president of the Campaign for Children and Families, which helped draft the initiative and is a respondent in the state's marriage case.

Thomasson's organization, which will make the closing argument Tuesday, has crusaded over the years to keep the institution of marriage between a man and a woman "for a good society, a stable society."

"If you get rid of the foundation of marriage - which is male and female - then it's super easy for the secondary issues to fall," he said, referring to age of consent, pedophilia and polygamy. "Society will have nothing special about marriage anymore."

The city and county of San Francisco, 15 same-sex couples, and gay-rights groups are challenging the state's marriage law. The cases follow the fallout from the marriage licenses granted to gay men and lesbians at San Francisco City Hall in 2004.

The high court voided thousands of those marriage contracts six months later, but left unresolved crucial questions over equal protection, due process and privacy rights for gays.

In 2006, a state appeals court upheld the ban on same-sex marriage, reversing an earlier decision by a San Francisco Superior Court judge who found it to be unconstitutional.

The appellate court decision at the time stated that the legislature and the voters have determined that marriage is for opposite-sex couples "and it makes no difference whether we agree with their reasoning."

Over a year's worth of court filings from critics and some religious groups have argued that marriage must be between a husband and a wife, based on the ability to procreate. Some have even warned of a backlash should the state Supreme Court license gay marriage. Other friends-of-the-court briefs from such groups as the NAACP, the Anti-Defamation League and the city of Sacramento have decried the marriage ban on gays and lesbians as discriminatory and socially antiquated.

In court documents, Gov. Arnold Schwarzenegger called the marriage question a "complex societal issue" and said that he did not believe the limited definition of marriage violated gays' rights.

As of last year, same-sex couples who registered as domestic partners were given all of the "same rights, protections and benefits" of spouses, according to the governor's response, such as filing joint state income tax returns, community property rights and hospital visitation.

But for longtime Davis couple Ellen Pontac and Shelly Bailes, the term "domestic partner" doesn't resonate and carry the same cultural meaning as marriage.

The two women, who have been together for 34 years, remembered the moment when word leaked over the Internet that San Francisco was granting marriage licenses. They raced out the door, drove through the rain and landed the distinction of being the 45th couple to be married on Feb.12, 2004, the first day of the historic ceremonies at a festive City Hall.

Assemblyman Mark Leno (D-San Francisco) officiated.

"He said, 'I now pronounce you partners for life,'" Pontac, 66, said, her voice cracking.

"Marriage makes a difference," she said. "It means, 'welcome to the family.' The rest of the world was saying 'Welcome.'"

Pontac and Bailes expect to be in San Francisco on Tuesday to hear the arguments from the courthouse, just down the street from where the movement began at City Hall.

After the high court reviews the arguments, it will have 90 days to issue its opinion.


Charlotte provided us a useful link on the topic.

www.OUTTAKEonline.com