The debate over same-sex marriage reached a California appeals court Monday, with one of the panel's three judges indicating agreement with the gay rights position.
During five hours of arguments, the sole Democrat on the three-judge panel observed that the state's domestic partner law gave gay couples only "half a loaf," and he took jabs at the state's defense of traditional marriage.
The intermediate court's ruling, which is due by October, is likely to influence how the California Supreme Court will eventually decide the issue. Dominated by moderate Republicans, the state's highest court is generally viewed as cautious. It is expected to get the case by the end of the year.
Monday's hearing followed the defeat of same-sex marriage last week in the highest courts of New York and Georgia. As the California court was considering the issue, the Massachusetts Supreme Court ruled that a measure to reinstate a ban against same-sex marriage in Massachusetts could go on the ballot. Massachusetts is the only state that permits same-sex couples to wed.
The marathon arguments before the 1st District Court of Appeal here drew an overflow crowd, including many same-sex couples, and was broadcast statewide. The court heard arguments on six lawsuits filed by same-sex couples, the city of San Francisco and two organizations that oppose same-sex marriage.
In ruling on those suits last year, San Francisco Superior Court Judge Richard Kramer said the state's ban on same-sex marriage violated the state Constitution.
Justice J. Anthony Kline, who was appointed by former Gov. Jerry Brown, was the only judge on the panel Monday who gave strong indications that he favors eliminating the ban on same-sex marriages.
The other panelists, Justices William R. McGuiness and Joanne C. Parrilli, who were appointed to the court by former Gov. Pete Wilson, appeared more skeptical of the gay rights arguments.
Kline repeatedly drew distinctions between California and New York law in the wake of the New York high court's 4-2 decision against same-sex marriage.
Kline said the California Constitution gives Californians greater rights to privacy than the New York or federal constitutions. California's privacy protections were "intended to restrict the right of the state to interfere with the individual freedom to make important personal decisions," Kline said.
California Atty. Gen. Bill Lockyer is arguing that California's marriage laws should be upheld because the state has long viewed marriage as an opposite-sex relationship and because gays already enjoy many of the rights of the married under the state's domestic partner law.
"There is no holding in any of the seminal cases on marriage that say that marriage is other than the union of a man and a woman, and that is how it's been through time immemorial," Deputy Atty. Gen. Christopher E. Krueger told the court.
Courts elsewhere decided against same-sex marriage based in large part on the view that procreation was a basis for marriage and only opposite-sex couples can have children without technological assistance or adoption.
California is not making that argument. To do so would have undercut the legal validity of the state's domestic partner law, which religious groups have also challenged in court.
"So we have two kinds of marriage here," Kline said. "We call one a domestic partnership but isn't it really the same as the other kind? ... It's a second-class one."
Kline said the state was taking a very unusual position in relying on a historical definition of marriage but repudiating the basis of that tradition, which he said was procreation.
When lawyers for two religious groups argued that procreation should be considered in defining marriage, Kline observed that many people marry without ever intending to have children.
Parrilli asked whether "society as a whole has the right to define what marriage is." Voters passed Proposition 22 in 2000, defining marriage as the union between a man and a woman and banning California from recognizing same-sex marriages performed in other states.
Parrilli also asked whether the state should get out of the business of issuing marriage licenses and instead issue "union licenses."
McGuiness observed that the federal government and other states would not recognize the marriage licenses of same-sex couples even if California permitted them.
McGuiness further suggested that proponents of same-sex marriage were asking the court to "redefine the institution of marriage."
Chief San Francisco Deputy City Atty. Therese M. Stewart, describing discrimination that gay couples have experienced, urged the court to "tell the world that Californians believe those relationships are as important as any others."
She said California has a higher percentage of gay couples than any other state and that one-third of them are raising children.
Although the Legislature and the citizens of California can define marriage, they can not do so "in a way that excludes people for no good reason," Stewart said.
The marriage cases grew out of San Francisco's decision to issue marriage licenses to same-sex couples in 2004. The state Supreme Court later ruled that Mayor Gavin Newsom had exceeded his authority and invalidated nearly 4,000 licenses.
Last year, the state Legislature voted in favor of same-sex marriages, but Gov. Arnold Schwarzenegger vetoed the bill. He said it was up to the courts and the voters to decide whether gay men and lesbians should be allowed to have same-sex unions.
Myra Beals, 62, and Ida Matson, 71, a lesbian couple from Mendocino who have been together for 30 years and are among those who filed suit seeking the right to marry, said they were encouraged by the court's arguments.
"I think it's going really well," Beals said.