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san diego
Calif. state lawyer faces tough questions arguing against same-sex marriage
Appeals court judge calls domestic partnerships ‘second-class marriage’
Published Thursday, 13-Jul-2006 in issue 968
SAN FRANCISCO (AP) – A state lawyer who argued July 10 that California’s ban on same-sex marriage should be upheld for the sake of tradition endured tough questions from an appeals court.
Deputy Attorney General Christopher Krueger said a trial court ruling that declared the marriage laws unconstitutional should be overturned because same-sex couples are granted similar rights if they register as domestic partners.
Krueger said that unlike other states that have opposed same-sex unions in court, California does not maintain that marriage should be reserved for heterosexuals because of its role in promoting stable environments for raising children.
As a result, denying marriage licenses to same-sex couples who still can adopt children, sue for child support and assert other legal aspects of parenthood does not discriminate as much as reflect long-standing attitudes about marriage’s singular social significance, he said.
“It’s not a mindless adherence to tradition. It’s a meaningful adherence to a definition of marriage the way it has always been,” he told a panel of the First District Court of Appeal.
Justice J. Anthony Kline commented more than once on the “inherent contradiction” in Krueger’s reasoning, noting that the attorney general was “repudiating” the procreation argument while endorsing a separate category of domestic partnerships.
“So we have two kinds of marriage in California. We call one a domestic partnership, but it is really the same thing. It’s a second-class marriage,” quipped Kline, who was randomly assigned to the panel after two other justices, Stuart R. Pollak and Peter J. Siggins, recused themselves from the case.
The arguments came as the state appealed a San Francisco judge’s decision last year clearing the way for California to follow Massachusetts in allowing same-sex couples to wed. Same-sex nuptials were put on hold pending the appeal.
The court heard from parties to six lawsuits. Four of them were brought by the city of San Francisco and lawyers for 20 same-sex couples who sued to overturn California’s marriage statutes. Two were filed by groups that want the laws upheld.
The three-judge panel has 90 days to issue a ruling, but any decision is expected to be appealed to the California Supreme Court.
San Francisco’s Chief Deputy City Attorney Therese Stewart said even though the Legislature had good intentions in establishing domestic partnerships, the result reinforces stereotypes that gays and lesbians are “other and less than.”
“Marriage has deep meaning not just for some people, but to everyone, and it’s painful, hurtful to deny marriage not just to gay men and lesbians but to their families, their parents and most of all their children,” Stewart said. “The domestic partnership law can’t possibly replace the meaning and reverence that marriage has.”
Justice Joanne Parrilli asked Stewart whether the state was required to provide equal access to traditional marriage licenses if it provides “a parallel, developing institution” for gays and lesbians.
Stewart said the answer was yes if sexual orientation was the only reason for denying same-sex couples licenses.
The gay rights movement was picking up steam in 1977 when the Legislature added the requirement that marriage had to be between a man and a woman, Stewart said.
“What they said was: ‘We don’t want those people to be part of our institution. We don’t like them.’ And that’s not good enough grounds for denying people access to an institution,” she said.
Last year, San Francisco Superior Court Judge Richard Kramer agreed, ruling that the state’s marriage laws were unconstitutional because they violate “the basic human right to marry a person of one’s choice” and discriminate on the basis of gender and sexual orientation.
Joining the state July 10 in urging justices to reverse Kramer were the Campaign for Children and Families and the Proposition 22 Legal Defense and Education Fund. They maintained that Kramer exceeded his authority when he struck down Proposition 22, a 2000 voter initiative that prevented California from recognizing same-sex marriages performed elsewhere.
Unlike Krueger, however, lawyers for the groups argued that the ability heterosexuals have to produce children without reproductive technology was reason enough to limit marriage to them.
“Marriage is the union of one man and one woman precisely because of the procreation potential inherent in that relationship,” said Mathew Staver, who represented the Campaign for Children and Families. “You don’t have that in a same-sex relationship.”
Justice Kline, who dominated the bench during the six-hour hearing, asked how excluding same-sex couples from marriage helped further the state’s goal of promoting strong, loving families. He noted that getting a marriage license does not require heterosexual couples to have children.
Glen Lavy, the lawyer for the Proposition 22 fund, said that since same-sex couples haven’t been openly raising children that long it was too soon to say what the social effect would be. In the meantime, the state has a legitimate interest in “upholding expressed community mores,” Lavy said.
In response, Shannon Minter, who represented a dozen same-sex couples as a lawyer with the National Center for Lesbian Rights, accused the traditional marriage advocates of demeaning the institution they profess to protect with “a fictitious attempt to justify discrimination.”
“There is much more to human relationships and human beings, and certainly parenting, than the biological mechanism of intercourse,” Minter said. “The couples before you today simply wish to express their common humanity.”
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