by Rex Wockner
A series of questions sent by the California Supreme Court to the lawyers in the pending same-sex marriage case reveals that the court is seriously dissecting the details of the case.
“I see (these questions) as an encouraging sign that the court is taking this important question of ending discrimination in marriage very seriously and thoughtfully,” said Evan Wolfson, executive director of the national marriage-equality group Freedom to Marry.
The court has asked the attorneys to file briefs by July 18 explaining the differences in legal rights, benefits and duties under the state’s domestic-partnership law, comparing it to the marriage law.
Second, the court has asked if marriage offers any substantive rights or obligations that may not be taken away by the legislature or by ballot initiative without amending the state Constitution.
It also wants to know if the terms “marriage” and “marry” have constitutional significance – and it asked whether the legislature could “change the name of the legal relationship of ‘marriage’ to some other name.”
Finally, the court has inquired about Proposition 22: The 2000 ballot initiative that rewrote the “Foreign Marriages” section of the state’s Family Code to say, “Only marriage between a man and a woman is valid or recognized in California.” It asked if the proposition prohibits same-sex marriages from taking place within California, or if it applies only to marriages conducted outside of the state.
And, if it’s the latter: Can California, under the U.S. Constitution, “recognize same-sex marriages that are entered into within California, but deny such recognition to same-sex marriages that are entered into in another state?”
“I’m particularly happy that the court (mentioned) the historic first case in the country to strike down race restrictions on marriage,” Wolfson said. “It was the California Supreme Court that played that historic role, by a vote of 4-to-3, and we will celebrate the 60th anniversary of that landmark courage next year.
“I hope they remember how history vindicated (that) ruling.”
Wolfson said it is crucial that gay and lesbian Californians take action now “to create the climate in California that enables the court to do the right thing” in the same-sex marriage case.
“This is a court that could rule in our favor, given the right climate,” he said. “People, right now, should get involved with the Let California Ring campaign to move public opinion even a few points between now and when the justices have to rule.
“And I mean right now,” Wolson added. “We have months at hand to take the conversation about why marriage matters into the homes of hundreds of thousands of Californians, and each one of us should do our part.”
Geoffrey Kors, head of the statewide LGBT lobby group Equality California, or EQCA, said that when he first read the Supreme Court’s questions, “It struck me as a good sign. It struck me that the court is very engaged in the specific issues. And I believe that when you look at this in detail, we win.
“You see that the court wants a full understanding of how domestic partnership is different from marriage, and that they want a little more briefing on the issue of the constitutional requirements that the court set out 60 years ago in the (race restrictions) case – about what is constituted in the fundamental right to marry.
“So, we get to put forth our arguments,” Kors continued, “and we believe the fundamental right to marry encompasses more than just a bunch of benefits.”
The lead lawyer on the gay side of the case, National Center for Lesbian Rights legal director Shannon Minter, said the Supreme Court’s questions also struck him as good for the gay side.
“The court is, in some sense, calling the state’s bluff,” Minter said. “The state is making … some rather shocking arguments in its briefs; particularly, the attorney general has suggested there is no fundamental right to marry for anyone, and that the state could abolish marriage and replace it with something else if they wanted to.”
In fact, several California court rulings over the years, including those from its Supreme Court, have referred to a fundamental right to marry under the state’s constitution.
“It’s very distressing that the state is arguing otherwise; I don’t know if it’s a tactic in the case or if that’s genuinely his (Attorney General Jerry Brown’s) view,” Minter said. “There’s something very perverse about responding to gay couples who want to marry, want to exercise this very cherished right, by saying that actually there’s no such right for anyone.”
Minter said he’s looking forward to answering the court’s questions: “It’s going to really help us to give the court our perspective, and it’s going to be very helpful to make the state be more clear on what their position is.”
In the end, Minter expects we will see same-sex marriage in California in less than two years, brought about either by the court or by Gov. Arnold Schwarzenegger’s deciding not to veto a same-sex marriage bill expected to land on his desk again this year. He vetoed one in 2005, the first time any U.S. state legislature passed a bill to open up marriage to same-sex couples.
“They’re a very smart court and, more than any other state Supreme Court, they have many times been presented with cases involving same-sex couples and their children,” Minter said. “They know gay people, they see us as people, and I think they will understand the harm that’s inflicted on real families by this exclusion. I’m very hopeful.”
Regardless of whether the Supreme Court legalizes same-sex marriage or the state legislature and Governor Schwarzenegger do so, it is likely Californians will see a ballot initiative in 2008 attempting to amend the state constitution to ban it and, possibly, to repeal the state’s domestic-partnership law as well.
But Minter thinks California voters won’t support that.
Minter said if the anti-gay forces get the signatures to put a measure on the ballot, ,AeuI think we will beat them.”
EQCA’s Kors noted that “every public opinion poll on same-sex marriage is now (equally split) within the margin of error” in California.
“We’re doing everything we can to make sure that when the voters vote on this again, we have majority support,” Kors said.
Minter agreed with Wolfson that gay Californians need to get active with the marriage issue right now.
“I worry that people may be overly-complacent in thinking that … we will achieve marriage without more engagement,” he said. “That’s very dangerous.
“I think most people are just busy living their lives, struggling to work and take care of their kids and maintain their relationship, take care of parents, and it’s really difficult to make time for activism.”
But the activism that’s needed, Minter said – and Kors agreed – is nothing dramatic like marching in the streets or handcuffing oneself to Schwarzenegger’s Hummer.
“We need people to talk to their neighbors and to potential allies,” he said. “We have not taken that final step in explaining to even our closest straight friends and family members how we are hurt in not being able to marry; we’ve got to do that now because these people are going to be voting.
“We don’t need to present a militant, aggressive, in-your-face image,” Minter continued. “We need people to understand that we’re talking about couples and families who need the same degree of social support and acceptance as straight people.”
Dramatic images of direct action “don’t convey that message very well,” he said, “nor do I think it would affect the governor.”
The lead sponsor of the same-sex marriage bill, state Assemblyman Mark Leno, (D-San Francisco), echoed the advice of the other activists.
“Being out and proud … is the most powerful act we can make,” Leno said. “The more our neighbors, co-workers, co-worshippers recognize who we are and that we are everywhere within the general community, there is documented proof that there is less interest in discriminating against us.
“So people should be sharing their stories and explaining to their neighbors how the benefits of marriage – that they take for granted – being denied to same-sex couples causes pain and suffering, and makes their lives that much more difficult on a daily basis.”
Leno also agreed that the Supreme Court’s new questions mean the justices “are taking the case very seriously.”
“Given my eternal optimism, I take it as a positive signal,” he said.
On the web:
The full text of the court’s questions is at tinyurl.com/ytv8do.
To get involved in the Let Freedom Ring campaign see tinyurl.com/2nm3xa