ADF Alliance Alert

Today, from 9 AM to 12 PM Pacific, the California Supreme Court will hold oral arguments on the coordinated Marriage Cases. Unlike the previous California Supreme Court arguments that resulted in the Lockyer decision, today’s arguments will focus squarely on whether the California Constitution requires the redefinition of marriage to include same-sex couples. The history of same-sex “marriage” litigation in California, which now culminates in this morning’s arguments and a decision to come down within 90 days, is summarized in this post today on the Alliance Alert.

Through the magic of modern technology, this morning’s oral arguments at the California Supreme Court are being broadcast live over the Internet. One veteran member of the ADF Marriage Litigation Center, Chris Stovall, and two current members of that team, Amy Smith and Jim Campbell, will be blogging the arguments right here at this link. Feel free to check in throughout the morning for regular updates, and if you leave the link open, don’t forget to hit “refresh” on your browser every few minutes for the newest comments on the progress of the arguments.

LIVE BLOG STARTS HERE:

The clerk of the court is currently going through preliminary matters with all those gathered in the Supreme Court courtroom.

The Supreme Court has taken the bench, and the parties and counsel have all been called.

Therese Stewart, counsel for the City and County of San Francisco is now at the podium making the opening argument.

She leads with the assertion that the discrimination resulting from denying marriage to same-sex couples is akin to the racial discrimination struck down in Loving v. Virginia when laws banning interracial marriage were invalidated.

The justices are quickly asking about the implications of the people defining marriage through popular initiative as in Proposition 22, and also the state’s arguments throughout this case that the fact that marriage has always meant the union of a man and a woman is sufficient basis for the state to preserve that definition in the law.

Stewart argues that the current opposite-sex nature of the California marriage laws cannot even survive rational basis review, and is being challenged on this by one justice, given that history and tradition might be viewed as sufficient grounds for a law under that deferential standard.

Stewart says that it depends on the tradition at issue, and frames the question here as whether the “tradition” of “excluding” same-sex couples from marriage can be justified.

Justice Moreno is asking whether, given the almost identical rights and benefits for same-sex couples available under California domestic partnership laws (DP), this all boils down to the “M” word.

Justice Chin asks Stewart whether she conceded that substantial progress and substantial equality have been achieved for same-sex couples under the DP laws. He asked whether those things the advocates of SSM claim they still lack are sufficient for a constitutional violation, or even are capable of being remedied by California law (i.e., federal benefits).

Stewart argues that the expressive and dignitary components of marriage are substantial, in and of themselves.

Justice Moreno asks whether California can do anything by its laws to impact the recognition of SSM in other states. Stewart responds that state recognition of SSM would at least start to move other states to consider recognition.

Chief Justice George asks whether it constitutes a rational basis in and of itself that there are administrative problems created at the federal level for a state to call a relationship marriage which is not so considered under the federal DOMA.

Justice Werdegar now moves into whether sexual orientation has ever been found a suspect class in California law. Stewart admits that the California Supreme Court has never done so, and that cases to date which have raised the issue have been resolved in favor of practitioners of homosexual behavior by finding that the laws in question did not even serve a rational basis.

Justice Kennard is now clarifying that Stewart’s claim is that a right to SSM must be implicit in the Constitution, since it is not there expressly. She further asks Stewart to agree that her argument, borrowing from Perez (Cal. decision striking down ban on interracial marriage), is that the right to marriage is the right to choose the person one wants to marry. Stewart agrees with all this, and also agrees with Kennard’s assertion that the City’s argument is that marriage is more than a bundle of rights but also includes a core right in the nature of a liberty interest. Kennard asks whether it is the case that the state’s affording of all the rights and duties of marriage to same-sex couples through the DP laws is a concession by the state that there is no longer any basis for distinguishing between opposite-sex and same-sex couples in the law.

Stewart agrees this is true but states that the dignitary and expressive aspects of marriage are the most significant things still denied under the current scheme. Justice Chin is challenging her on whether the DP law’s equivalence with marriage for all purposes of state laws means there is no substantive constitutional issue.

Justice Corrigan is now essentially asking whether this is the time for the Court to intervene, when there is clearly a political shift going on for the last several years in California in favor of greater rights for same-sex couples, balanced by the public’s declaration through Prop 22 in 2000 that it was not yet ready for marriage to be open to same-sex couples. Stewart responds that the Court has never left the resolution of fundamental issues to the will of the people, citing Perez among other cases.

Justice Baxter is now asking Stewart about the impact of the equalization of DP rights and duties with marriage by the legislature, in the years following the passage of Prop 22. He asks Stewart how the legislature can undermine Prop 22 indirectly if they cannot do so directly. Stewart says, assuming that Prop 22 was meant to define marriage in California (she points out her belief that it was only to apply to out of state marriages), the Court still has the authority to determine the constitutionality of that initiative, and can find it irrational and strike it down.

Justice Werdegar asks Stewart whether the Court’s concept of equal protection, and the Constitution’s protection against the denial of equal protection, evolves. Stewart says it is more like later recognition and removal of blind spots that existed earlier, a la Justice Kennedy in Lawrence. Werdegar asks in response why THIS is now the time, as opposed to ten years from now after further societal evolution, for the Court to intervene and find that the Constitution has now evolved to protect SSM.

Justice Moreno asks whether Perez really examined evolving notions of marriage. Stewart says that the focus was on evolving notions of race equality, and that what Perez did was revolutionary at the time given the widespread existence of laws banning interracial marriage across America at the time.

Stewart’s time is up.

Now at the podium, Shannon Minter of the National Center for Lesbian Rights.

Minter says the very fact of the relative equalization of rights and benefits while reserving a distinction in name between marriage and DP indicates how powerful the word “marriage” is.

In response to a question from Justice Kennard, Minter says that …

Justice Baxter asks a very insightful question: do the claims here mean that the legislature, by expanding rights legislative, risk elevating those statutory grants to constitutional status? In other words, is legislative “progress” a one-way ratchet inevitably ending in constitutional protection? Minter dodges by answering that the legislative advances of same-sex couples shows an increasing awakening and understanding by legislators of the dignity of same-sex couples and their families.

Justice Corrigan asks Minter whether it is clear that the original understanding of the California Constitution would have been that there was no right for same-sex couples to “marry.” Minter agrees.

Justice Baxter asks Minter to concede that there are rational bases for all of the many restrictions on choice of marital partner (age, kinship, multiple partners, etc.). He does but then states that no similar concerns provide any rational basis for prohibiting same-sex “marriages.” He also answers yes when Baxter queries whether the electorate acted irrationally in adopting Prop 22. Baxter asks how Prop 22 could have been irrational, when literally no government in the world at that time permitted same-sex “marriage.” Minter asserts Perez demonstrates that this should not be a concern for the Court. Baxter replies by asking whether the California Supreme Court could have even had SSM in mind at the time of Perez. Minter answers that the “constitutional values” announced in Perez lead to SSM today. Baxter responds by saying that it was clear in Perez that the Court was considering marriage in its traditional form, as it has always been known, i.e., one man and one woman.

Justice Werdegar asks why the otherwise acknowledged principle that the legislature can approach a problem in steps rather than all at once (thus creating temporary inequities in the law) does not apply here. Minter responds that this principle has no application where a law discriminates regarding a fundamental right or a suspect classification. He adds that there is no legitimate state purpose

Justice Kennard asks whether sexual orientation is an immutable characteristic like race or gender (interesting question to ask of Minter), and if so, why there is no evidence in the record of this. Minter says it most definitely is immutable, and that there does not need to be evidence in the record to that effect, because immutability can be found under the “central and defining aspect of a person’s identity” test recognized in Koebke. Justice George asserted that it seems like a high hurdle to equate sexual orientation with race or gender.

Justice Moreno asks whether the state and all the parties concede the immutability of sexual orientation. Minter suggests that they do but that ultimately, there should be no question that under California precedents, and the alleged fixed nature of sexual orientation, that sexual orientation meets the definition of “immutable.”

Justice Baxter asks when same-sex couples acquired the right to marry. Minter claims they have always had the right, but it has not been recognized. Baxter clarifies that Minter is asserting it was latent in the state constitution since its inception. Justice Kennard questions how it can be claimed that for instance racial minorities and women have “always” had the rights they were later found to have, but that these were just unrecognized. Minter holds ground and continues to assert that these rights were there but unrecognized by the courts and society. This, ironically, is a natural rights argument!

Minter asserts in response to CJ George’s question about Perez’s statement that there is a right to marry the person of one’s choice, whether the court also had same-sex couples in mind, that they did not expressly have SSM in mind but that the principles annunciated clearly and expressly apply to same-sex couples. George follows up with a couple quotes from Perez he suspects are the main hooks relied upon by Minter (the mere historical fact of discrimination does not justify a law, and that marriage is ultimately the right to choose one’s mate). Minter agrees.

Minter also asserts that the finding of a constitutional right to SSM would not alter the distinction between civil marriage and religious marriage. Minter states that the meaning of marriage societally is what gives it fundamental right status, more than the bundle of rights.

Justice Corrigan pushes Minter and asks, bluntly, how do you define marriage? Minter responds that it is a mechanism provided by the state for two people to legally integrate their lives and declare publicly their commitment to one another. Justice Chin asks how the extensive legislative history of the DP act does not make it clear that DP’s serve these dignitary purposes for same-sex couples just as marriage does for opposite-sex couples. Minter denies this and says the legislature recognized that there was discrimination and that DP’s were a less than full removal of that discrimination.

Justice George returns to the “person of one’s choice” language in Perez, but Justices Chin and then Corrigan jump in and ask why this same right to “choose” does not apply to the choices of multiple spouses or blood-related spouses.

The next attorney, Mr. Maroko, has taken the lecturn. He is emphasizing that the right to marry, broadly defined, is fundamental. He avoided many of the questions put to him by Justice Corrigan involving the decisions in Loving and Perez.

Justice Kennard asks if the “real issue” is whether there is a reason for distinguishing between marriage for opposite-sex couples and civil unions for same-sex couples. Mr. Maroko, not surprisingly, agrees to Justice Kennard’s easy question.

Mr. McCoy next takes the lecturn. He states that his side is not attempting to redefine marriage. Marriage is a fundamental right that, according to Mr. McCoy, includes everyone including same-sex couples.

Justice Werdegar asks what is the definition of marriage. She states that the statement in Perez — defining marriage as the a union with someone of your choice — is not binding because the court in Perez was not defining marriage.

Mr. McCoy responds that marriage is characterized by love, affection, and commitment. Justice Werdegar states that Mr. McCoy’s definition of marriage rest on the unstated assumption that marriage is the union of one man and one woman. Mr. McCoy responds that the “traditional definition” of marriage is in itself unconstitutional.

Justice Kennard asks whether history and tradition can form a rational basis for preventing same-sex couples from marrying. Mr. McCoy states that tradition is relevant but it, standing alone, is not a rational basis for marriage.

Mr. McCoy says that domestic partnership is similar to “separate but equal” treatment under Pleassy. One of the justices points out that race is different from “sexual orientation.”

Mr. McCoy appeals to a right to privacy, but he is quickly rebuffed as one of the justices reminds Mr. McCoy that we are dealing with public recognition of a social institutional and, as such, the right of privacy is not a good fit here.

McCoy is asked whether you approach the right to marry, generally, as a right to marry anyone, or whether you approach the right to marry, specifically, as the right to marry someone of the opposite sex. McCoy dodges the question and discusses the Supreme Court’s decision in Lawrence and its discussion of intimacy and privacy.

Justice Werdegar asks whether recognizing same-sex “marriage” will undermine traditional marriage. McCoy says that the Court should look to Massachusetts; he says that the “human experience” of marriage has not diminished for opposite-sex couples, and same-sex couples should enjoy that same right. “Massachusetts hasn’t fallen in,” according to McCoy. But only time will tell the outcome of Massachusetts’ social experiment.

Mr. Kruger represents the State of California and the State Attorney General. He now takes the podium.

Justice Kennard asks whether there are differing interests between the State and the State Attorney General. Mr. Kruger states that there are not.

Justice Kennard highlights that the governmental parties have raised different state interests than the private entities. For example, the private entities — which include Proposition 22 Defense and Education Fund, the party represented by ADF — argue that procreation is one of the bases for definition marriage as the union of one man and one woman.

Chief Justice George notes that even though most of these cases have been decided in favor of traditional marriage, they are all closely decided decisions, thus implying that this is not a clear-cut issue.

Mr. Kruger argues that it is not irrational to uphold a definition of marriage that has stood the test of time. Mr. Kruger, however, fails to articulate why this would not be irrational. Justice Kennard replies that many long-standing traditions have been struck down, thus implying that a long-standing tradition is not, standing alone, a rational basis.

Mr. Kruger struggles to answer the question. Justice Chin comes to the rescue, pointing out that the domestic partnership statues demonstrate that the people of California are not motivated by animosity towards same-sex couples.

The justices are now asking about the differences between opposite-sex marriage and domestic partnerships. Chief Justice George asks about the New Jersey report on domestic partnerships. Mr. Kruger responds that the Court need not heed the facts and statements in that report, as they are hearsay from an outside source.

Justice Kennard notes that the California legislature has twice passed laws permitting same-sex “marriage,” which was subsequently vetoed by the Governor. She indicates that the legislature is trying to address this issue, but is being prevented from doing so. Thus, she wants to bypass the legislative process and the will of the people.

Mr. Krugar argues that affirming the legislative process and the will of the people is a rational basis for upholding the marriage laws. He is now being grilled by Justices George, Moreno, and Kennard. They are saying that the will of the people also motivated the laws that prohibited inter-racial marriage. Mr. Krugar is struggling to distinguish those cases.

Justice Baxter talked about the initiative passed by the people. He states that the legislature is without the power to contradict the definition of marriage as defined by the people. He points out that under the California Constitution, the will of the people reigns over the actions of the legislature. Mr. Krugar happily agrees. Justice Baxter states that the legislature cannot indirectly undermine or overturn the definition of marriage as defined by the people.

Chief Justice George asks whether an initiative can be found to be unconstitutional, just like an act of the legislature. He also points out that the a California voter-enacted initiative has been found unconstitutional in the Melkey. Mr. Krugar struggles with this question; he is unable to distinguish that case.

Justice Moreno asks about Justice Scalia’s statement in Lawrence, where he says that the Court’s decision will likely lead to the abolition of traditional marriage. Mr. Krugar says that Justice Scalia was engaged in “hyperbole.” The Court notes that nevertheless here we are, addressing that very issue today.

Justices Moreno and George ask for clarity in defining the fundamental right at issue here. They note that the Lawrence Court defined the fundamental right broadly. They imply that it should be defined broadly here, to include the right to marriage in general, not the right to marriage as traditionally understood between one man and one woman.

Chief Justice George asks whether same-sex couples encompass a “suspect class” for constitutional purposes. Mr. Krugar emphasizes that same-sex couples do not constitute a “suspect class” and thus strict constitutional scrutiny does not apply. If strict scrutiny does not apply, the State needs to show only a rational, legitimate basis for its definition of marriage.

Justice Kennard states that there are no significant differences between marriage and domestic partnerships. She emphasizes that the private entities, which include the parties represented by ADF, argue that marriage has an inherent definition that cannot be altered by the state. According to those parties’ argument, the rights of married couples cannot be taken away because they are enshrined in the constitution. Mr. Krugar states that the state can redefine marriage and can take away the rights guaranteed to married couples. Thankfully, the private parties are involved here, so that they can discuss the inherent traditional definition of marriage and the many legitimate and rational reasons for defining marriage as the union of one man and one woman.

Justice Chin asks whether equality for same-sex couples can exist under the domestic partnership laws. Mr. Kruger says that equality does exist because similar rights and benefits are bestowed upon same-sex couples. Consequently, there is no constitutional mandate to remake marriage so that it will include same-sex couples.

Mr. Kruger’s time expires.

Kenneth Mennemeier, on behalf of the Governor, takes the podium. Justice Kennard asked if keeping the laws the same would compel a person to reveal their sexual orientation when asked if they were married. Mr. Mennemeier responds that the institutions are public institutions so the response to the question “are you married” is already public information. Chief Justice George asked if the Governor argues that there is a difference between the Governor’s position on suspect class and the states position. Mr. Mennemeier responds that there is no difference, but the Governor is opposed to adopting a new class for review and that rational review is the appropriate basis for review in this case. The interests of the State are in protecting the balance provided in the current law between traditional marriage and domestic partnerships. The question of how marriage should be defined is best left to the legislature. Justice Corrigan, so the democratic process should determine the definition of marriage. Mr. Mennemeier responds that the legislature has given rights to same sex couples, without redefining marriage. Justice Moreno asked Mr. Mennemeier to address the sex discrimination claim. Mr. Mennemeier responded that there is no sex discrimination claim, because neither sex can enter into a same sex marriage, so the sexes are treated exactly the same. Justice Kennard asked if the Court should defer the definition of marriage to the legislature. Mr. Mennemeier agrees that the definition of marriage is best left to the legislature. Mr. Mennemeier explains that Lawrence is relevant in what protection is provided by substantive due process’s liberty interest. But the Supreme Court warned that the Court’s opinion did not declare a right to same-sex “marriage” and that such a relationship is outside of the privacy right declared in Lawrence. His time is over.

Glen Lavy, Senior VP; Senior Counsel, of The Alliance Defense Fund, represents Proposition 22 Legal Defense and Education Fund. He now takes the podium.

Mr. Lavy explained that Proposition 22 codified the public policy in California that limited marriage to a man and a woman. It was a preservation of the law and the will of the people.

Justice Werdegar asked what the Court’s role is in reviewing this case. Mr. Lavy responded that the Court’s role is not to redefine marriage but that the Court can review the constitutionality of the California marriage laws, but the Court may not rewrite the laws. Mr. Lavy explained that Perez did not redefine marriage, marriage was always the union of a man and a woman.

Chief Justice George continued to question Mr. Lavy on Perez. Mr. Lavy explains that miscegenation laws were a departure from the common law, unlike the departure from the common law that the opponents are trying to force on the people of California.

Justice Ming asked if the discrimination against same sex couples rivals racial discrimination. Mr. Lavy explained that there is no discrimination because the relationship they argue for is not marriage.

The Justices moved on and ask Mr. Lavy to explain the State’s interest in procreation in supporting the distinction between traditional marriage and same sex couples. And why the State allows same sex couples to adopt. Mr. Lavy explained that the public policies that are contrary to Proposition 22 may violate the constitution.

Justice Kennard continued to badger Mr. Lavy on the issue of procreation and if infertile couples should be prohibited from marrying. Mr. Lavy explained that such an inquiry would violate the privacy rights of the couple and is not a proper inquiry.

In closing Mr. Lavy explained that Perez was a case concerning marriage as defined as a union of one man and one woman.

Mathew D. Staver, Founder and Chairman of Liberty Counsel, represents Campaign for California Families. He now takes the podium. Mr. Staver continued to distinguish Perez for the Court. Miscegenation laws were about racial discrimination not the traditional definition of marriage as the union between one man and one woman.

Chief Justice George asked Mr. Staver if Lawrence supports an underlying right to marry, not just the right to marry a person of the opposite sex. Mr. Staver explained that interpersonal sexual acts are private, unlike the marriage, which has a public context as well as a private context.

Mr. Staver is asked whether he believed that same sex couples are not as good at parenting as opposite sex couples. Mr. Staver explains that same sex adoption is a social issue debated in the public square. Justice Kennard won’t let him off the hook with the parenting question and asked him again if same sex couples were better or worse at parenting. Mr. Staver responded that the optimal environment for child rearing is in the home of their biological mother and father. Again Justice Kennard, asked Mr. Staver to explain the negative results of redefining marriage as requested by the opponents. Justice Corrigan asked a similar question. Mr. Staver explained that the redefinition of marriage causes the institution to lose its traditional meaning.

Mr. Staver’s time is over.

Ms. Stewart is now at the podium for rebuttal.

Justice Kennard asked Ms. Stewart if she could articulate the adverse consequences of permitting same sex couple to marry. Ms. Stewart explained that she did not see any adverse consequences for permitting same sex “marriage.” Justice Kennard asked her about the issue of child rearing. Ms. Stewart pointed to the laws that prohibited discrimination in foster care and child custody hearings based on sexual orientation.

Minter is now at the podium for rebuttal. Minter asked that the Court strike the unconstitutional language in the statutes and to order the State to issue marriage licenses to same sex couples.

Minter argues that marriage provides a privacy veil for the true nature their relationships and that is the privacy the parties desire. Chief Justice George adjourned the Court.

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