News :: GLBT
Ca. Supreme Court Asks Three Questions in Gay Marriage Caseby Kilian MelloyFriday Jun 22, 2007 The California Supreme Court has issued an unusual request in its hearing of a lawsuit for marriage equality: each side has been asked to answer three straightforward questions.
According to a story posted on 356Gay.com yesterday, California’s highest court posed the questions because the justices felt that the briefs filed by both sides earlier this year had failed to address several basic points on the matter.
The first answer the court required from both sides was a specific and detailed explanation of how California’s existing domestic partnership law--one of the most comprehensive in the country--and legal marriage differ from one another in terms of legal rights for families.
Secondly, the court required lawyers from both sides to offer their interpretations of what the California state constitution’s provisions might be for marriage rights. Whether the constitution implicitly extends legal equality for gay and lesbian couples seeking marriage, or implicitly limits marriage to heterosexual couples, the existing constitutional provisions would have to be followed until and unless an amendment changed the state’s constitutional provisions for marriage.
From the second question’s ramifications, the court also sketched out a third question: "Do the terms ’marriage’ or ’marry’ themselves have constitutional significance under the California constitution?" asked the state’s Supreme Court. If so, and given voter approval of Proposition 22 in 2000, then depending on what marriage rights are found to be enshrined in California’s constitution, the answer of whether or not gay and lesbian couples currently do have legal marriage equality could be settled without further argument.
Proposition 22 itself is a point of contention between the two sides of the issue. Marriage equality foes say that the measure is, in effect, a constitutional amendment limiting marriage to heterosexuals couples; marriage equality advocates say that the measure applies only to the question of whether California is required to recognize marriages performed for gay and lesbian coupes in other states.
The court required both sides to file briefs supplying the answers by July 18. As yet, there is no date scheduled for presentation of oral arguments. Should the case come to oral arguments, a final ruling would be expected within three months of those arguments being completed, probably early in 2008.
The case originated in April, when Lambda Legal, together with the American Civil Liberties Union and the National Center for Lesbian Rights, filed a brief of behalf of 15 same-sex couples seeking marriage. The brief was also filed on behalf of the California gay rights organization Equality California.
Pro-family equality lawyers in the case say that California’s state law prohibiting gay couples from marrying is discrimination based on sexual orientation and gender, and that it is a violation of the fundamental right to enter into a marriage contract. The brief references the state’s constitutional guarantees of due process, intimate association, and privacy.
It was upon those very grounds that San Francisco Superior Court Judge Richard A. Kramer found that denying gay and lesbian couples marriage equality was unconstitutional. The California Court of Appeal later reversed Judge Kramer’s finding. The California Supreme Court agreed to hear the case following that reversal.
Earlier this month, the California Assembly passed a bill to extend marriage equality to same-sex couples. Governor Arnold Schwarzenegger, who vetoed similar legislation nearly two years ago, has said he will veto this measure as well should it pass the Senate.
Kilian Melloy reviews media, conducts interviews, and writes commentary for EDGEBoston, where he also serves as Assistant Arts Editor.
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