Gay rights advocates and the city of San Francisco are pressing forth with a legal strategy to persuade a California court that denying same-sex couples the ability to marry violates the state's constitution.
Their opening briefs, filed Thursday in San Francisco superior court, rely heavily on the same arguments that persuaded the highest court in Massachusetts to legalize gay marriage in that state earlier this year--namely, that existing marriage laws discriminate against gays and lesbians without a legitimate public purpose.
But they also advance some claims that haven't been used elsewhere, according to attorneys who brought the cases on behalf of the city and 12 same-sex couples. These include the notion that a ban on same-sex marriage costs local governments lost tax revenue and the burden of providing health benefits to unmarried residents as well as the idea that it prohibits gays and lesbians from freely expressing themselves under the state's version of the First Amendment.
"Marriage is a symbolic institution by which a couple declare their love and commitment to each other in a way that is singularly understood in this culture," Kate Kendell, executive director of the National Center for Lesbian Rights, said at a news conference announcing the critical step in the continuing legal
fight. "The denial of the right to marry forecloses one of life's most rewarding personal choices and withholds the most effective means to show one's beloved they are precious and irreplaceable."
The city and several public interest law firms--including the National Center for Lesbian Rights, Lambda Legal, and the American Civil Liberties Union--sued the state on March 12, the day after the California supreme court ordered San Francisco officials to stop issuing marriage licenses to same-sex couples.
Last month the state supreme court voided the nearly 4,000 marriages that were sanctioned in the city before it intervened, ruling that local officials lacked the authority to contravene state law. Now proponents of marriage rights are seeking to have those laws overturned on constitutional grounds, a process that must begin in superior court and is expected to percolate back up to the California supreme court in about a year.
"The opponents of marriage equality would like to think that was the end of the matter," city attorney Dennis Herrera said. "The fact of the matter is that today is the opening of what will be the decisive battle for marriage equality here in the state of California."
A superior court judge is scheduled to set a timetable next week for the attorney general to respond to the briefs filed Thursday and for hearing arguments in the cases. Hallye Jordan, a spokeswoman for Atty. Gen. Bill Lockyer, said his office plans to carry out its duty to defend existing state statutes regardless of Lockyer's personal views on gay marriage. "We are eager to move this important issue through the courts and obtain a resolution for the people of California as quickly as possible," she said.
David Cruz, a University of Southern California law professor, said the events in Massachusetts, along with the California legislature's recent history of granting significant spousal benefits to gay couples who register as domestic partners, will make it harder for the courts to uphold the status quo. "The question the state will have to answer is, Why not let these people marry? And once a state has gone as far as California has gone, it's very difficult to articulate reasons for not letting same-sex couples enter the same civil relationship that different-sex couples do," Cruz said. "Unless the court thinks that there is simply no harm, no difference in symbolically segregating same-sex couples into something other than marriage, you will still be focusing on the discriminatory treatment and asking the state to justify that exclusion."
Meanwhile, Assemblyman Mark Leno (D-San Francisco) plans to reintroduce a bill in December that would make gay marriage legal in California if it is approved by the legislature and signed by the governor.