Gays' right to wed argued

SAN FRANCISCO – Four years after ending gay marriages at City Hall, the California Supreme Court revisited that historic moment Tuesday with three hours of argument over whether to allow same-sex couples to marry.

The seven justices heard from attorneys for the city of San Francisco and about 20 couples and other gay rights supporters who argued that the ban on gay marriage violates their constitutional rights to equal protection, due process and privacy.

But lawyers for the state and private conservative groups reminded the panel that California voters had chosen to limit marriage eight years ago to being between a man and a woman, and insisted it was not the court's place to interfere.

The court is expected to issue an opinion on the legality of gay marriage within 90 days, and for much of the hearing the justices peppered attorneys with questions and themes that revolved around the very definition of marriage.

Both sides argued about whether the court could change that definition and, more importantly, whether California is ready for that change.

Massachusetts is the only state to allow same-sex marriages – an issue that has sparked controversy in courtrooms across the country and contentious public debate.

"Over 60 percent of voters said they weren't ready for that change," said Justice Carol A. Corrigan, referring to Proposition 22, approved in 2000 limiting marriage to being between a man and a woman.

She acknowledged attitudes can shift.

"Who decides where we are in California in that evolution?" Corrigan asked. "Is it for the court to decide or the voters to decide?"

A crucial legal question concerned the state's domestic partnership law, which last year extended all of the legal rights and protections of married spouses to same-sex registered domestic partners – a measure Gov. Arnold Schwarzenegger has cited in court documents to rebut claims of discrimination against gays and lesbian couples.

But as Therese M. Steward, of the San Francisco City Attorney's Office, said in her opening remarks, "Words matter, names matter … the people know what marriage means."

To exclude gays and lesbians from marriage, she said, only furthers stigma, exclusion and discrimination.

The justices were also urged repeatedly by advocates of gay marriage to consider the legacy of its 1948 decision, Perez v. Sharp, the first ruling in the country to legalize interracial marriage.

But gay marriage opponents countered that the Perez decision recognized marriage as between a man and a woman, and Justice Marvin Baxter asked whether the high court could have imagined in 1948 that the case could extend to same sex-marriages.

Chief Justice Ron George later quoted a crucial centerpiece of the Perez ruling: "marriage with the person of one's choice."

Glen Lavy, an attorney for the Proposition 22 Legal Defense and Education Fund, and Mathew Staver of the Campaign for Children and Families, argued that the state has a compelling reason to continue to limit marriage to a union between a man and a woman: the protection of children.

To allow for same-sex marriage, Staver said, would denigrate the institution.

"You can't change the name without consequences," he said. "I think (marriage) would lose its meaning."

The Sacramento-based Campaign for Children and Families, under the direction of social conservative Randy Thomasson, has begun collecting signatures to put a proposed constitutional amendment on the November ballot to ban gay marriage should the high court decide to allow it.

In recent years, the largely Republican bench's record has included a ruling outlawing workplace discrimination against domestic partners and extending parental rights and responsibilities to gay parents, especially in matters over child support.

Although the initiative threat was not discussed in court, other questions abounded from the bench over whether the court could "evolve" the practice of marriage by allowing same-sex couples to wed.

At one point, Justice Kathryn Werdegar conceded in the form of a question that the court may not be able to change this particular law: "I don't think this court has the role of redefining marriage," she said. "So, what is the role of this court?"

The cases heard Tuesday followed the fallout from the marriage licenses granted to gay men and lesbians at San Francisco City Hall under Mayor Gavin Newsom in 2004.

The high court voided thousands of those marriage contracts six months later, with Justice Joyce Kennard and Werdegar disagreeing with that decision.

A San Francisco Superior Court judge later found the marriage ban on gays and lesbians to be unconstitutional. But a 2006 appellate court decision overruled the judge and upheld the prohibition, paving the way for Tuesday's Supreme Court review.

Outside the courthouse, San Francisco City Attorney Dennis Herrera said he was proud of the couples involved in the city's case and was optimistic that the court would recognize the community's constitutional rights.

He spoke amid a clamor of protesters hoisting signs declaring homosexuality a sin.

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