Same-Sex Union Cases to Be Heard

SAN FRANCISCO —  The cases ultimately expected to reach the California Supreme Court and decide whether the state’s gays and lesbians should be granted civil marriage rights will be heard today by a San Francisco Superior Court judge.

At the heart of the consolidated lawsuits -- brought by the city of San Francisco and a dozen gay and lesbian couples -- is the contention that current law defining marriage as “between a man and a woman” violates the state Constitution by denying homosexuals the “fundamental right” to marry the person of their choosing.

Atty. Gen. Bill Lockyer, defending existing law, counters that California is dedicated to equal rights and benefits for same-sex couples, evidenced by a sweeping domestic partners law that takes effect next month.

Balancing these efforts, he said, is the state’s interest in maintaining “the common and traditional understanding of marriage” as heterosexual.

“The responsibility of my office is to defend current law.... So we’ve tried to make the best argument that can be made,” said Lockyer, a self-described supporter of gay rights.

Conservative groups that have filed their own lawsuits on the issue argue points that Lockyer has disavowed: that the state has no interest in supporting gay marriage because homosexuals cannot naturally procreate and that children of gay and lesbian unions fare poorly.

All arguments will play out today in a courtroom across the street from the ornate City Hall where more than 4,000 same-sex couples were granted marriage licenses last spring under a directive from Mayor Gavin Newsom.

Newsom’s move -- which came months after the Massachusetts high court upheld same-sex marriage -- was later deemed illegal, and the licenses were invalidated. But it set in motion a heady series of nationwide gay marriage initiatives and counter-initiatives in an election year.

The San Francisco Superior Court cases stemmed from Newsom’s action.

“The question that will be discussed goes to the core of everything we’ve been trying to advance,” Newsom said. “The national ramifications if California goes the way of Massachusetts would be quite extraordinary.”

Newsom has been lambasted by some fellow Democrats for his actions, which some contend helped President Bush win a second term and contributed to a nationwide anti-gay marriage backlash. Voters in 11 states last month approved state constitutional amendments banning such marriages, and gay marriage opponents in California promise to do the same if the high court grants gays and lesbians marriage rights here.

Still, Newsom said, his plans are on script.

“This is where we always wanted to end up,” he said. “The idea of the marriages in February was to fast-track this process and put a human face on the issue.”

In all states where the same-sex marriage question has been litigated, suits were filed by gays or lesbians. California’s case is the first in which a municipality -- the city and county of San Francisco -- has directly challenged state law.

City officials argue that by denying same-sex couples the “fundamental right” to marry, California is violating its constitutional guarantees of “liberty, privacy and equality.” The right to marry was affirmed in 1948 when the high court struck down laws against interracial marriages.

By forcing the city to discriminate, they argue, the state is harming all San Francisco residents.

The city estimates that the ban costs San Francisco about $13 million a year in public health and social service benefits, money it would not have to spend if gay couples were married. The city also argues that it loses about $6 million in potential marriage license fees and tourist revenue.

But the monetary losses are secondary, said City Atty. Dennis Herrera.

“Without full recognition of gay and lesbian families through marriage, we are limited in our ability to protect the equal rights of our citizens,” he said.

Most laws are presumed by the courts to be constitutional and will be upheld as long as there is a rational basis for them, legal analysts say. But laws that restrict the rights of a class or group historically subject to disfavor must meet a tougher test. In those cases, the government must show that the law serves a specific state interest. San Francisco’s attorneys and the lawyers for the 12 couples contend that gays and lesbians make up such a class and that no compelling state interest exists to deny them marriage rights.

Unlike other states, California already has in place an unparalleled system of benefits for gays and lesbians. Those benefits, Lockyer said, balance the state’s interest in preserving heterosexual marriage tradition.

Lockyer said the rights granted to domestic partners are almost equal to those of marriage, “but the term ‘marriage’ is reserved for opposite-sex couples.”

Attorneys for the couples counter that separate but equal (or in this case nearly equal) is not justified or permitted by the state Constitution.

“This case is really about whether lesbians and gay men in California are going to be treated as fully human and fully equal citizens,” said Shannon Minter, legal director for the National Center for Lesbian Rights, which filed the couples’ suit, along with the American Civil Liberties Union and Lambda Legal. “It poses the equality issue very starkly.”

Among the plaintiffs are Lancy Woo and partner Cristy Chung, who say they are raising their 6-year-old daughter on unequal turf. Marriage, Woo said, bestows “overall acceptance” that domestic partnership benefits cannot.

She and Chung checked out prospective schools for their daughter and were told by some teachers that the issue of gay parenting is reserved only for “health class.... I said, ‘Oh, we’re a health issue?’ ” said Woo, a San Francisco dog groomer. “It’s so degrading.... We’re proactive parents.... We deserve the same right to be acknowledged as your everyday family.”

Meanwhile, the Proposition 22 Legal Defense and Education Fund and the Campaign for California Families have weighed in, submitting declarations that same-sex unions are harmful to children. Other declarations are from people who said they were once homosexual but became heterosexual. If homosexuality is a choice, the groups argue, then homosexuals cannot be considered a legally protected class.

The organizations filed suit against Newsom in the spring, and a judge last month coordinated their cases with the others to allow them a voice.

Proposition 22 is the 2000 ballot initiative that reaffirmed California’s definition of marriage as heterosexual by dictating that no out-of-state same-sex marriages would be recognized in California.

Glen Lavy, senior counsel with the Arizona-based Alliance Defense Fund, which represents the Proposition 22 group, said the law justifiably discriminates.

“The primary purpose of marriage is procreation, and that is the reason the state recognizes marriage,” Lavy said.

“If it’s ‘We want to make people happy,’ then you couldn’t exclude incest; you couldn’t exclude polygamy.”

Minter counters that there are compelling state interests against incest and polygamy but none that justifies “drawing the line based on a person’s gender or sexual orientation.”