Same-Sex Marriage Goes to California Supreme Court

(Wed., 3/5/08) - Yesterday, more than three hours of oral arguments took place at the California State Supreme Court that could have an important impact on the definition of marriage for the State of California and set a precedent for the nation.

Petitioners want the California law and Constitution to recognize and legalize same-sex marriage. Respondents want the traditional definition of marriage preserved.

The case trails back to 2004, when San Francisco Mayor Gavin Newsom overstepped the laws of California with a gathering to issue marriage licenses to same-sex couples. The California Supreme Court issued an order blocking this procedure and cases were filed on both sides of the issue.

The Attorney for the petition for the City and County of San Francisco, Therese M. Stewart, was up first. She gave three initial points:

1. Domestic partnership is not equal to marriage.

2. No rational justification exists to keep restricting gays and lesbians from marriage.

3. By conditioning a marriage license on lesbians and gay men's waiver of their privacy autonomy right to intimate association, the state violates the Unconstitutional Conditions doctrine.

She proposed that for gays and lesbians to be excluded from marriage should be likened to the historical exclusion of women and blacks from institutions of higher learning.

Answering a question from the bench about how the city and county of San Francisco would feel about changing the name "marriage", she stated that the name "marriage" should not be changed by the state to give a different qualification to gays and lesbians. This would still be a form of discrimination. She later put forth that:

(a) the petitioners were also confirming homosexuality as an immutable trait which cannot be changed, and

(b) The California State Constitution is not static and we must look to contemporary notions. To uphold a law just because it's been on the books historically has not stopped the Supreme Court from changing a law before.