The California Same-Sex Marriage Argument

The California Supreme Court held an unusually lengthy argument session on the morning of March 4, hearing eight attorneys address the question whether California’s refusal to allow same-sex marriages violates the state’s constitution. As the state already has a Domestic Partnership Act that provides almost all the state law rights and responsibilities of marriage for same-sex couples, the arguments differed from those presented to most of the other state high courts that have considered the question. The only similarly-situated state has been Connecticut, where a decision from that state’s Supreme Court is long overdue.

Although it is difficult to predict how cases will turn out based on watching oral arguments, since judges sometimes play "devil’s advocate" roles with their questions and it is all too easy to allow wishful thinking to lead one to read things into the tone and frequency of questioning, it appeared that most of the judges were skeptical about the argument that the court should force the issue further by striking down the discriminatory aspects of the state’s marriage law.

California has an unusual history on this issue. The state enacted a minimalist domestic partnership law in 1999, setting up a registration process and conferring a handful of rights on registered same-sex partners. Over the following years a series of amendments were passed, until the most recent enactment went into effect on January 1, 2006, providing that "registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses."

Other things were happening as this amendment process went forward. Reacting to the Vermont Supreme Court’s 1999 decision that led to the enactment of the nation’s first Civil Union Act in 2000, opponents of same-sex marriage placed an initiative on the state ballot that year, Proposition 22, approved by more than 60% of the voters, which amended the provision of the state’s marriage code on recognition of out-of-state marriages, to provide that same-sex marriages would not be recognized in California. In addition, opponents of same-sex marriage mounted legal challenges to the successively expanding domestic partnership law, claiming that as it got closer and closer to full spousal rights, it violated Prop 22, which its supporters argued after enactment would ban all same-sex marriages, not just prevent recognition of those performed out of state.

Things went further after the Massachusetts Supreme Judicial Court ruled in favor of same-sex marriage in November 2003, and San Francisco Mayor Gavin Newsom, inspired by that decision and disturbed by President Bush’s endorsement of efforts to preserve the "sanctity" of traditional heterosexual marriage, authorized the San Francisco City Clerk to issue marriage licenses to same sex couples in February 2004. The California Supreme Court invalidated the resulting marriages, holding that the mayor lacked authority to abrogate state law, but left open the question whether same-sex couples might have a constitutional right to marry. Several lawsuits were then filed raising the question. They were consolidated into one case, in which San Francisco Superior Court Judge Richard Kramer ruled in favor of the plaintiffs, only to be reversed by a 2-1 vote in the intermediate court of appeal.

The lead plaintiff in the case is the City of San Francisco, whose Board of Supervisors voted to authorize a lawsuit seeking to vindicate Mayor Newsom. Chief Deputy City Attorney Therese Stewart led off the oral argument on behalf of the city, followed by Shannon Minter, Legal Director at the National Center for Lesbian Rights, who argued on behalf of a group of same-sex couple plaintiffs. Two other attorneys provided briefer arguments in support of their own plaintiff groups of same-sex couples.

Deputy Attorney General Christopher Krueger argued on behalf of the state, representing Attorney General Jerry Brown. In an unusual move, Governor Arnold Schwarzenegger, who vetoed the legislature’s attempts in 2005 and 2007 to allow same-sex marriages, hired a separate attorney, Kenneth C. Mennemeier, to argue on behalf of himself and the state officer in charge of administering the registration of marriage records. (Well, perhaps not quite so unusual. Schwarzenegger is a Republican, Brown is a Democrat, and their respective defenses of the existing marriage law struck slightly different notes.) Finally, attorneys appeared on behalf of two intervening groups, the Proposition 22 Legal Defense and Education Fund, and the California Campaign for Children and Families, who sought to participate in order to make arguments that the state could not logically make because of the extensive recognition and protection it already provides for same-sex families under the DP law and other policies.

The result was a long and wearing argument session, but the members of the court seemed actively engaged and appeared to have spent considerable time thinking about the case and exploring the arguments made in the many briefs filed with the court.

The California Supreme Court made history shortly after World War II when it became the first state high court to declare laws against interracial marriage to be unconstitutional, issuing an opinion that spoke broadly about a constitutional right for each person to chose a marital partner without the interference of the state. What meaning this old ruling, Perez v. Sharp, might have for the current controversy occupied a central role in the case. Additionally, several judges raised the question whether the legislature had essentially done all it could do for same-sex couples by passing the Domestic Partnership Law, in light of the passage of Prop 22 which, if broadly construed, might disempower the legislature from enacting same-sex marriage.

In California, a statute enacted through the initiative process cannot be repealed or replaced by the legislature, although it is subject to constitutional challenge on the same basis as a legislatively-enacted statute. Justice Marvin Baxter suggested several times through his questioning that Prop 22 may have decided the matter, and that the court should not overrule the people on this question. Justice Ming Chin seemed fixated at times on the notion that any equality requirement of the state constitution would be satisfied by the legislature’s extension to same-sex couples of the legal rights of marriage under state law, as he asked petitioners’ attorneys to agree that the Domestic Partnership Law represented "substantial progress" towards full equality.

This led to quite a bit of questioning about the significance of words, and whether the dispute was solely semantic. Justice Moreno posed the question whether all that was at stake was "the M word." Both Stewart and Minter went to significant lengths to persuade the court that more was at stake than language, and not just because the federal government will not recognize any legal status for same-sex partners as a result of the 1996 enactment of the Defense of Marriage Act. The court had granted a motion to accept a late filing of the New Jersey Civil Union Review Commission’s interim report, and its conclusion that civil unions in that state had fallen short of providing complete equality of rights came in for some comment, although the governor’s attorney tried to downplay its significance, arguing that one year after enactment of this new legal structure was hardly sufficient time to reach any conclusions about its ultimate effect.

Chief Justice Ronald George signaled great concern that the court not fall into the same error that the U.S. Supreme Court embraced in 1986 in Bowers v. Hardwick, when it narrowly conceptualized the issue as whether homosexuals have a right to engage in sodomy. In 2003, the Court corrected itself in Lawrence v. Texas, ruling that the appropriate framing of the question was whether the conduct at issue came within the liberty protected by the Due Process Clause of the 14^th Amendment. In this case, George repeatedly came back to the argument that these cases are not about some right to same-sex marriage, but rather about the right of same-sex couples to participate in the institution of marriage on the same basis as opposite-sex couples. Under this broader concept, the miscegenation cases provided a much stronger precedent for recognizing the right.

The arguments by the government attorneys strongly pushed the idea that California has a legitimate interest in preserving the traditional meaning of marriage, but even when pressed they found it difficult to articulate more than a respect for history and tradition as justifications for that stance. The attorneys representing the anti-marriage groups fell back on some of the arguments that proved successful in New York, Maryland and Washington State, the illogical contention that the justification for limiting marriage to opposite-sex couples is to channel procreation into a state-supported institution that is the best vehicle for child-rearing. As usual, they asserted that unspecified "studies" showed that children do better when raised in traditional families, a point that is actually refuted by most of the public literature, and one attorney argued that enactment of same-sex marriage in the Netherlands had led to a sharp decline in heterosexual marriage, another point that has been decisively refuted in the literature.

The same-sex marriage movement was well represented on this occasion by Stewart and Minter, both of whom engaged in a high level of doctrinal argument with the judges. If the case is lost, it will not be for lack of effective advocacy, but more likely due to the politics of the issue.

Anybody can watch the argument for themselves through a link on the California Supreme Court website. This observer came away believing that the Chief Justice and Justice Joyce Kennard – probably the most persistent questioner – were leaning towards ruling for same-sex marriage, that Justices Marvin Baxter, Ming Chin, and Carol Corrigan seemed most likely to vote the other way, and that the votes of Justices Carlos Moreno (the only Democratic appointee on the court) and Kathryn Mickle Werdegar were possibly in play. Justice Werdegar is generally considered one of the more liberal members of the court on social issues, but her questioning was relatively even-handed, and initially seemed more supportive of the state’s position Justice Moreno probably asked the fewest questions, reflecting skepticism about the arguments of both sides.

U.S. Supreme Court Justice William J. Brennan was fond of saying of that nine-member court that "you can do anything you want around here if you can count to five." In this case, winning same-sex marriage requires counting to four. You do the math. Unlike the Connecticut Supreme Court, which has been working for the better part of a year on its eagerly-anticipated decision, the California Supreme Court generally observes a 90 day rule, so a ruling is expected by early June. The court posts new decisions immediately on its website. We expect its servers to experience heavy traffic in three months.

Comments

[Mad Professah]

I'm shocked that Justice Carol Corrigan is indicating her lack of support for the Petitioners in this case.

When she was appointed by Gov. Schwarznegger in 2005 much was made of the fact that she is an unmarried woman wholives with a "roomate" in Marin County.
Hmmmmmmmmmmmmmmmm.

I also havem't had the time to view the whole arguments but it looks like a 4-3 loss for the good guys (again!).

Thanks for the excellent sumary, Art.

[Art Leonard]

My summary was reacting to the content and tenor of questioning. On the basis of that, I detected little sympathy by Justice Corrigan to the petitioners' position, but I could be wrong.

I was reminded just now that Justice Werdegar had joined Justice Kennard in dissent when the Supreme Court set aside the validity of the 2004 San Francisco same-sex marriages. So perhaps I over-interpreted her somewhat hostile questioning of petitioners' attorneys as well.

There are perhaps grounds for cautious optimism!

[Nancy Polikoff]

Anyone who wants to get notice of the CA decision can sign up for an email on the court's website:
http://appellatecases.courtinfo.ca.gov/email.cfm?dist=0&doc_no=S147999

[Shawn]

Excellent summary.

I'm an attorney who works in an office a couple of blocks from the court so I went to watch this historic argument. Space was limited to I only made it into the court room for the last hour of the session, but it was well worth it.

My take (ie guess) on the voting (pro being in favor of same sex marriage) given the questing and tenor of the justices would be as follows:
Moreno - pro
Werdegar - pro
Kennard - pro
George - pro
Baxter - con
Chin - con
Corrigan - uncertain

Corrigan seemed somewhat pro at times but seemed concerned with going too far and facing a backlash.

[Paul]

Here in Canada we speak English, share a border with the US, and civilization has not come crumbling down nor has procreation ceased while marriage is defined as between two adults, independent of gender. Good luck California. If same-sex marriage passes and you get universal health care, we might move back!