supreme court explored the meaning and significance of
marriage on Tuesday when it heard the oral arguments in the
state's marriage equality case. A decision as to
whether the state law that prevents same-sex marriage
is discriminatory will follow within the next 90 days.
commented on both the length of the proceedings, which ran
over the designated three hours, and the depth of the
amazed at the stamina the court had for this issue,"
says Beth Hillman, a law professor at the University
of California Hastings College of Law in San
Francisco. "They were careful and thorough and
skeptical toward both sides. They definitely went the
full 15 rounds."
justices spent significant time exploring whether gay men
and lesbians are a "protected" class of
citizens entitled to equal protection under the law
- peppering both sides with questions regarding
previous court decisions on interracial marriage.
Hillman explains, the questions showed that while the 14th
Amendment protects African-Americans from race
discrimination, there is nothing in the U.S.
Constitution that specifically provides the same
protection to gay men and lesbians. They also illustrated
that while the courts have stepped out in front of
public opinion in the past, as they did when removing
bans against interracial marriage, they were not in
agreement that now was the time do so again by supporting
the rights of same-sex couples to marry.
This is why, she
says, they spent so much time exploring the justices'
concerns about proper democratic processes and, in
particular, what weight to give to Proposition 22
- a voter initiative passed in 2000 that
restricted the state's definition of the marriages it
would recognize from other states to those between a
man and a woman.
Kennard often seemed intent on helping San Francisco chief
deputy city attorney Therese Stewart and National Center for
Lesbian Rights legal director Shannon Minter make
their case in support of marriage equality. She
grilled Christopher E. Krueger, of the state attorney
general's office, about the disparate and contradictory
arguments put forward by him as well as three other
attorneys representing Gov. Arnold Schwarzenegger, the
Proposition 22 Legal Defense and Education Fund, and
the Campaign for California Families.
essentially argued that it had a rational basis to preserve
the traditional definition of marriage, in part
because so much progress had been made through means
such as domestic-partnership laws. Meanwhile, the
Proposition 22 and California Families lawyers argued that
allowing same-sex couples to marry would devalue the
institution of marriage and harm heterosexual couples.
What did it mean, Kennard asked, that if the court
were to rule in the state's favor it would also have
to reconcile differences between rationales laid out
by the different attorneys?
Questions such as
these, says Hillman, illustrated the difficult position
that the state is in. "The state's not going
to say it's against equality and disparage gay
men and lesbians. That's why they left it to the
private groups against gay marriage to make those
Few doubt that
Kennard would vote in favor of same-sex marriage.
"Kennard," says Hillman, "was not
afraid to show where she stands." In contrast,
court observers say that the questions asked by two of the
more conservative members for the court, Justices
Marvin Baxter and Ming Chin, suggested that they would
take the opposing side. Teasing out where the others
stood, though, was more difficult.
generally thought to be a moderate court," explains
NCLR's Minter. "Six of the seven were
appointed by Republicans; however, they generally are
supportive of individual liberties and civil rights and
have issued some remarkably progressive decisions protecting
reproductive freedom, women's rights, and parenting
and other rights for lesbian and gay people."
Hillman, the public has to remember that while the questions
a justice chooses to ask might be designed to influence a
colleague one way or the other, it's rare for
the justices to leave the oral arguments with a
different opinion than they had before they started. In that
way, she says, while oral arguments are historic and
exciting, viewers must also remember
"it's a lot of political theater."
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