Same-Sex Marriage Court Fight Takes Shape

The battle over the constitutionality of California’s heterosexual marriage laws began in earnest this week as city officials and lawyers for same-sex couples unveiled the strategies they will use in their closely watched lawsuits against the state.

“Discriminatory behavior against gays and lesbians ... should not be countenanced by anyone,” San Francisco City Atty. Dennis Herrera said at a news conference Thursday.

The cases filed against state Atty. Gen. Bill Lockyer, by the city and on behalf of the couples and gay rights organizations, are among a handful that have been coordinated before a Superior Court judge here.

The cases are expected to reach the California Supreme Court within two years and determine whether laws defining marriage as “between a man and a woman” are constitutional.

The state’s high court last month ruled that San Francisco Mayor Gavin Newsom had no legal right to order his county clerk in February to issue same-sex marriage licenses, which were ultimately granted to more than 4,000 couples. The justices also deemed the licenses invalid.

But the ruling cleared the path for the constitutional case. Thursday’s filings offer a road map of the issues likely to be debated. City officials argue that by denying same-sex couples the “fundamental right” to marry, California law intrudes on their “rights to liberty, privacy and equality” guaranteed by the state Constitution.

Most laws are presumed by the courts to be constitutional and will survive judicial review as long as there is a “rational basis” for them. But laws that restrict the rights of an entire class or group historically subject to disfavor -- for example, by race or gender -- must meet a tougher test, known as “strict scrutiny.” In those cases, the burden is on the government to show that the regulation is needed and narrowly tailored to serve a compelling government interest.

San Francisco’s attorneys contend that gays and lesbians make up such a category, and that no compelling state interest exists to deny them marriage rights. Even if the high court disagrees that homosexuals make up such a class, the city argues that there is still no rational basis for the law.

The state family code was changed in 1977 to specify that only heterosexual couples could marry.

“Neither a tradition of exclusion nor a naked desire to continue excluding suffices as a legitimate state interest at any level of scrutiny,” the San Francisco attorneys wrote.

“The burden is square on the state to show why it thinks the Constitution permits it to limit access to one of the most vital legal and social institutions on the basis of sex and sexual orientation.... Nothing the state can say and nothing the state can do will meet this burden,” the San Francisco attorneys wrote.

A spokeswoman for Lockyer said state lawyers had not yet reviewed the filings.

Although Lockyer has remained largely silent on his strategy, he has vowed to defend existing state law. But he has personally professed support for same-sex marriage, and his office is simultaneously defending a sweeping domestic partners benefit law that specifically notes that state interests are furthered by stable gay family relationships.

A judge is expected to set a date next week for a state response.

But lawyers for the Alliance Defense Fund, a Christian legal group seeking to intervene on the state’s behalf, have articulated their position. They say marriage is a tradition created for men and women -- in furtherance of procreation -- and that same-sex couples have no fundamental right to participate.

“The state certainly has a rational basis in ensuring that kids have both a mom and a dad,” said Alliance Defense Fund staff attorney Dale Schowengerdt. Both briefs filed Thursday ask the court to order the state registrar of vital statistics to issue gender-neutral marriage license applications.

The city also contends that not allowing gays and lesbians to marry has cost San Francisco as much as $20 million a year -- in public health and social service benefits it would not otherwise have to grant, and in lost revenue from license fees and wedding-related commerce.

The lawsuit filed on behalf of a dozen same-sex couples -- some turned away as they awaited marriage license appointments, others who received licenses that were ultimately nullified -- speaks to the more visceral effect of the law.

Existing California law “forecloses one of life’s most personal choices: the means to show one’s beloved that they are utterly precious and irreplaceable,” said Kate Kendell, executive director of the National Center for Lesbian Rights, which filed the case along with the American Civil Liberties Union and gay rights group Lambda Legal.

Stuart Gaffney -- who married John Lewis, his partner of 17 years, at City Hall in February -- joined the lawsuit this week. He looks to history for solace. It was the California Supreme Court’s 1948 decision striking down the state’s interracial marriage ban as unconstitutional that paved the way for his own parents’ union. The U.S. Supreme Court followed 19 years later.

“It’s another generation of our family turning to the court for equal access to marriage,” Gaffney said. “We’re hopeful.”

Courts in six states, including the Massachusetts high court, have determined that excluding same-sex couples from marriage violates their constitutions.

Santa Clara University law professor and state constitutional expert Gerald Uelmen said the city’s case appeared to be making “essentially the same arguments that succeeded in Massachusetts. I think they will resonate in California because of our tradition of giving greater protection under the California Constitution than under the U.S. Constitution.”

However, Uelmen said the California Supreme Court has never applied the strict-scrutiny standard to sexual orientation, as it has to race and gender.