Tuesday’s same-sex marriage hearing

In case anyone doesn't know, the California Supreme Court is going to have a special three-hour hearing (their hearings are usually only an hour) tomorrow (Tuesday, March 4) from 9 a.m. to noon (California time) on various issues related to same-sex marriage, all of which center on the question of whether California's law banning same-sex marriage is constitutional. The court will provide a decision within 90 days after the hearing.

There's a good article about it at the Chronicle today. Below are some highlights, mostly gleaned from that article (all quotes below are from the article), but I recommend going and reading the article anyway--good stuff.

"The case combines four lawsuits--three by nearly two dozen couples who want to marry and the fourth by the city of San Francisco"--that last in response to the court stopping the weddings that SF had started performing four years and two weeks ago.

In 2005, SF Superior Court Judge Richard Kramer overturned CA's ban on same-sex marriage. Sadly, in 2006, a state appeals court overturned Kramer's decision.

Hundreds of organizations have filed briefs with the state Supreme Court in preparation for tomorrow's hearing, including religious groups on both sides, plus "psychologists, anthropologists and other professions, city and county governments, law professors, businesses, civil rights advocates and social institutions."

Sadly, Attorney General Jerry Brown's office is leading the charge on the anti-same-sex-marriage side. One part of their argument is that there might be a backlash; another part is that "change should appropriately come from the people rather than the judiciary."

(Some background: In 2000, CA voters passed the Knight Initiative, a.k.a. California DOMA, by about 61% to 38%. Various indications suggest to me that it would have a much harder time passing today, but there's no way to be sure of that. The CA legislature has tried twice since then to sidestep that law, but Gov. Schwarzenegger has vetoed both attempts, on the grounds that (among other things) the legislature shouldn't go against the will of the people.)

The really slimy bit of Brown's argument, though, if I'm understanding the Chron article right, is that he's pointing out that "the court majority swung from liberal to conservative after three [liberal judges] were unseated in a 1986 election that centered on their votes to overturn death sentences." (Unlike the US Supremes, the CA justices can be removed from office by the voters.) In other words: Watch out, CA Supremes! If you vote wrong on this one, you might be voted out of office in the next election! That's a shameful and disgusting tactic.

There are currently two initiatives in circulation to amend CA's constitution to explicitly outlaw same-sex marriage, but I'm hopeful that those won't pass; actually, I'm hoping they won't even make it to the ballot, but we'll see.

For months now, as I've been waiting for this hearing date to roll around, I've been hoping that the court decides same-sex marriage is okay. But that Chron article makes me suddenly pretty pessimistic about that:

[...T]he court--with a 6-1 majority of Republican appointees--has been generally sympathetic to gay rights and civil rights, but has seldom overturned laws or thwarted popular majorities.


Few court-watchers expect California to follow the lead of Massachusetts[....]

"This is a close case," said Clark Kelso, a [law] professor[...]. "I don't think they will say anything like, 'Heterosexual couples are better at raising children.' But it's likely that the court will not blaze a trail.

"In cases of doubt," Kelso said, "the court is likely to tilt toward the expressed will of the people."

So I'll try not to get my hopes up. But even if this doesn't pan out, I'm hoping that within a few years we'll see public sentiment swinging far enough in favor of same-sex marriage that we can get the Knight Initiative repealed. It's unfortunate that a bunch of couples may have to wait a few more years, but I think the pendulum is swinging in the right direction; I think it's just a matter of time at this point. (I'm not just being randomly optimistic here; remember that recent polls indicate over 40% of Californians and of Americans are actually in favor of legal same-sex marriage.)

If you're looking for legal info about the case, see the case summary page at the CA Supreme Court website. Click links in the top part of the page for more details; you can also follow links to the lower-court cases that this one combines. You can read the briefs by following links from the court's "High Profile Case" page.

Ooh, neat! The California Channel will be broadcasting the proceedings, both on cable and on their website! Now I know what I'll be doing from 9 a.m. to noon tomorrow.

You can also view the hearing live at the courthouse in SF, though I imagine it'll be totally packed; see the end of the Chron article for other locations. And in San Francisco you can watch it on SFGTV, Channel 26.

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