San Francisco again takes center stage on gay marriage

BY admin

December 21 2004 1:00 AM ET

After a coast-to-coast airing in family rooms, courtrooms, the Oval Office, and polling places, the debate over same-sex marriage returns this week to the city where an exuberant but short-lived gay wedding march inspired a flurry of imitators and detractors. A trial judge in San Francisco is scheduled to hear arguments Wednesday in a pair of lawsuits that seek to put California on par with Massachusetts, the only state where gay and lesbian couples can legally wed. The lawsuits seek to have the state's "one man, one woman" marriage law declared unconstitutional.

Judge Richard Kramer's courtroom is only the first stop in what is expected to be a yearlong odyssey that ultimately will reach the state's highest court. Advocates on both sides of the same-sex marriage divide say much is at stake in the outcome, especially because of California's influence. It has more same-sex couples than any other state, according to the 2000 Census. "It's a particularly powerful stronghold for them, so winning in San Francisco would be a very big deal," said Glen Lavy, who will argue for upholding the state's existing marriage statutes on behalf of the Alliance Defense Fund, a Christian legal organization that opposes gay marriage.

The consolidated cases were brought separately by the city of San Francisco and gay advocacy groups representing a dozen same-sex couples. They were an outgrowth of San Francisco mayor Gavin Newsom's decision last winter to openly defy state law by granting marriage licenses to gay and
lesbian couples, about 4,000 in all. The California supreme court ordered city officials to stop sanctioning the marriages. It also invited the city to request a judicial review of Newsom's claim that the state's ban on gay matrimony violated the civil rights of his gay and lesbian constituents. The justices suggested they might be willing to decide that core constitutional issue, but only after it passed through the lower courts.

The 12 couples suing the state for the right to marry--eight lesbian couples and four gay male couples--include those who were able to wed in San Francisco, only to see their marriages later nullified by the state supreme court, and those who never got the chance during the short window, which lasted from mid February to mid March. On the other side, California's attorney general argues that the state's
marriage law does not run afoul of the constitution because marriage always has been understood as a union between a man and a woman. Supporting that position is the Alliance Defense Fund and a second Christian legal group, Florida-based Liberty Counsel.

The two groups plan to take the attorney general's argument a step further, maintaining that same-sex couples have no basis for claiming the right to marry because the primary purpose of marriage is procreation. In 2000, California voters approved Proposition 22, which says the state can recognize only marriages between a man and a woman. But that measure only amended a statute, not the constitution.

The plaintiffs are relying heavily on the same arguments that persuaded Massachusetts's highest court to legalize same-sex marriage there this year--that prohibiting gay couples from marrying violates their right to equal protection under the law. Afterward, the Massachusetts legislature gave preliminary approval to a constitutional amendment to ban gay marriage but legalize civil unions. The measure must be approved formally during the next legislative session and by voters in November 2006.

Since the California lawsuits were filed in March, gay rights advocates have had mixed success advancing similar claims in other states. In New York, where nine separate challenges to marriage laws have been lodged, two trial judges have rejected the equal protection argument. But two others in Washington State reached the opposite conclusion, ruling that marriage is a fundamental right that must be available to gay and lesbian couples. Lawsuits seeking marriage rights or challenging bans on same-sex marriage also have been filed in Connecticut, Nebraska, New Jersey, and Oregon, one of 11 states that adopted constitutional bans on gay marriage during the November election. Those votes have been widely viewed as part of a backlash against Massachusetts and Newsom's actions in San Francisco.

Proponents of marriage rights for same-sex couples said California presents one of their best opportunities for furthering the gains they say have been made in Massachusetts. Like the Massachusetts constitution, the California constitution affords its citizens even greater rights than the U.S. Constitution. For example, it recognizes a fundamental right to "safety, happiness, and privacy," according to Joe Grodin, a professor at the University of California Hastings College of the
Law in San Francisco. "The right of privacy has been interpreted to include a right of intimate
association, and that's part of what's involved here," Grodin said.

The California supreme court also has ruled that residents possess a fundamental right to "join in marriage with the person of one's choice." That ruling came in 1948, when the state became the first in the nation to strike down laws banning interracial marriage. Lawmakers and courts in California have long recognized that gays and lesbians have been harmed by discrimination, said Jennifer Pizer, an attorney with Lambda Legal. That they also have taken numerous steps to address it is further reason for optimism, Pizer said.

A state law that takes effect January 1 will give same-sex couples who register as domestic partners all the benefits and responsibilities of married spouses except for the right to file joint income taxes. "We know that courts treat gay and lesbian families and litigants more fairly when they are familiar with who we are," Pizer said. "In California, this community has been visible."

The courtroom is only one of the venues where gay rights supporters and opponents are at odds. The state legislature next year will address two recently introduced bills that will make the gay marriage debate one of the most contentious of the coming year. One bill asks lawmakers to put a constitutional amendment banning gay marriage before the voters. The other would make gay marriage legal in
California. The superior court cases have been consolidated as Marriage Cases, 428794.

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