State Supreme Court Hears Marriage Equality Arguments

See full article at the San Francisco Chronicle. More info on this subject can be found at The Bilerico Project.

Marisa Lagos, John Coté, Chronicle Staff Writers

The California Supreme Court peppered both sides of the same-sex marriage debate with questions (Tuesday) in a 3½-hour hearing into whether the state law defining marriage as the union of a man and a woman is constitutional.

The hearing dealt with challenges to the law filed by nearly two dozen same-sex couples and the city of San Francisco, which entered the case after the court invalidated an order by Mayor Gavin Newsom that allowed nearly 4,000 same-sex couples to marry in 2004.

The plaintiffs argue that the California Constitution protects the rights of same-sex couples to marry. Those arguing to keep the law included the state of California, which says the definition of marriage is so deeply engrained in law that only the Legislature or voters have the power to change it, and conservative religious groups, which argue that marriage is for procreation. They point to domestic partnership laws as proof that same-sex couples are not being discriminated against.

The justices spent a little over 90 minutes during the hearing in San Francisco questioning three attorneys for the plaintiffs, then moved on to the opponents of changing the state law. Justice Joyce Kennard immediately asked Deputy Attorney General Christopher Krueger, representing the state of California, why the state's arguments differ from those of their co-defendants, who focused in written arguments on procreation. Krueger said the differences don't weaken the opponents' position, and urged the court to look at tradition.

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Lawyers for the plaintiffs have pointed to the court's 1948 decision striking down California's ban on interracial marriage, and have compared domestic partnership to "separate but equal" segregation. The 1948 ruling, the first of its kind by any state's high court, recognized a "right to join in marriage with the person of one's choice."

The justices honed in on that case during their questioning of Krueger, asking whether the state believes "separate is equal here" and whether animus against gays and lesbians is intrinsic in the state law. "What distinguishes this is that (for interracial couples) there was marriage and there was nothing," Krueger said. "Racial discrimination had been put on marriage for no reason other white supremacy." Krueger and other attorneys arguing to preserve the state law said gays and lesbians have never been defined by any high court as a group that is guaranteed equal protection under the law.

Krueger said plaintiffs in the same-sex case "talk about domestic partnership as if it's schoolhouse segregation. ... Yes, same-sex couples aren't allowed to marry under our laws, but that is not the same type of exclusion. ... Here there is equality."

Attorneys for the conservative groups argued that the court should not have a role in defining marriage. They pointed to Proposition 22, passed by voters in 2000, which barred the state from recognizing same-sex marriages performed outside California. Glenn Lavy, an attorney for the Prop. 22 Legal Defense and Education Fund, called the initiative process the "ultimate expression of democracy."

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"If procreation is a fundamental purpose of marriage, then the next inquiry would be should infertile individuals be prohibited from entering in to a marriage relationship? " Kennard asked.

"No, your honor ... it would violate the right of privacy to make that inquiry," Lavy said.

In her arguments, San Francisco Chief Deputy City Attorney Therese Stewart insisted that granting same-sex couples the right to enter into domestic partnerships or civil unions was not the same thing as allowing them to marry.

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The Supreme Court has 90 days to make a decision on the case.

E-mail the writers at mlagos@sfchronicle.com and jcote@sfchronicle.com.