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Calif. Supremes Delve into Marriage Case
by Rex Wockner
2007-07-11

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A series of questions sent by the California Supreme Court to the lawyers in the pending same-sex marriage case reveals that the court is seriously engaged with the details of the case.

The court has asked the attorneys to file supplemental briefs by July 18 explaining the differences in legal rights, benefits and duties under the state's domestic-partnership law as compared to the marriage law.

Secondly, the court has asked if marriage confers any substantive rights or obligations that may not be taken away by the Legislature or by ballot initiative without amending the state Constitution.

Thirdly, the court wants to know if the terms 'marriage' and 'marry' have constitutional significance, and it asked if the Legislature could 'change the name of the legal relationship of 'marriage' to some other name.'

Finally, the court inquired about Proposition 22, the 2000 ballot initiative that rewrote the 'Foreign Marriages' section of the state's Family Code to say that ' [ o ] nly marriage between a man and a woman is valid or recognized in California.' It asked if Prop 22 prohibits same-sex marriages from taking place within California or applies only to marriages conducted outside of the state.

And, if the latter, can California, under the U.S. Constitution, 'recognize same-sex marriages that are entered into within California but deny such recognition to same-sex marriages that are entered into in another state?' The full text of the court's questions is at tinyurl.com/ytv8do.

'I see [ these questions ] as an encouraging sign that the court is taking this important question of ending discrimination in marriage very seriously and thoughtfully,' said Evan Wolfson, executive director of the national group Freedom to Marry.

Wolfson said it is crucial that gay and lesbian Californians take action now 'to create the climate in California that enables the court to do the right thing' in the gay marriage case.

Geoffrey Kors, head of the statewide LGBT lobby group Equality California ( EQCA ) , said that when he first read the Supreme Court's questions, 'it struck me as a good sign. It struck me that the court is very engaged in the specific issues. And I believe that when you look at this in detail, we win.

The lead lawyer on the gay side of the case, National Center for Lesbian Rights Legal Director Shannon Minter, said the Supreme Court's questions also struck him as good for the gay side.

'The court is in some sense calling the state's bluff,' Minter said. 'The state is making ... some rather shocking arguments in its briefs —particularly, the attorney general has suggested there is no fundamental right to marry for anyone, and that the state could abolish marriage and replace it with something else if they wanted to.'

In fact, several California court rulings over the years, including Supreme Court rulings, have referred to a fundamental right to marry under the state Constitution.

Minter said he's looking forward to answering the court's questions. 'It's going to really help us to give the court our perspective, and it's going to be very helpful to make the state be more clear on what their position is.'

In the end, Minter expects we will see same-sex marriage in California in less than two years, brought about either by the court or by Gov. Arnold Schwarzenegger's deciding not to veto a same-sex marriage bill expected to land on his desk again this year. He vetoed one in 2005, the first time any U.S. state legislature passed a bill to open up marriage to same-sex couples.

The lead sponsor of the same-sex marriage bill, state Assemblyman Mark Leno, D-San Francisco, echoed the advice of the other activists. 'Being out and proud ... is the most powerful act we can make,' Leno said in an interview.


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