SAN FRANCISCO—Just when the presidential campaign seemed to be settling down to a debate about Iraq and the economy—with occasional forays into healthcare and immigration—an old culture warrior may be about to muscle its way into the fray: gay marriage.
The California Supreme Court heard oral arguments yesterday on a group of marriage cases filed over the past four years, brought by 23 gay and lesbian couples who have challenged a state law that denies them the right to marry. The court now has 90 days to determine whether that law, passed by voter initiative in 2000, violates the state's Constitution. The decision will most likely be handed down in June—only a few months, analysts note, before the two parties' presidential conventions. "Whatever the court does, I'd think it will be the center of attention," says Douglas Kmiec, a law professor at Pepperdine University. "We know this issue causes a ruckus."
No one doubts that. Same-sex marriage first turned into a political football in 2003, when the U.S. Supreme Court ruled in Lawrence v. Texas that sodomy laws criminalizing homosexual sex were unconstitutional. Dissenters on the court predicted that the way was being paved for marriage. Early the next year, the Massachusetts Supreme Judicial Court ruled that gay couples did in fact have the right to marry under the state's Constitution, becoming the first state to legalize gay marriage. Lawmakers across the country ran to the barricades: Constitutional amendments banning same-sex marriage now exist in 26 states.
In California, meanwhile, the mayor of San Francisco, Gavin Newsom, took a different approach. Soon after the Massachusetts justices handed down their decision, Newsom began granting marriage licenses to nearly 4,000 same-sex couples who lined up outside City Hall. Those certificates were invalidated a few months later by the state Supreme Court, which ruled that he didn't have the authority to issue them, citing a state law, Proposition 22, passed in 2000 by more than 60 percent of voters, which defined marriage as between a man and a woman. The next day, cases were filed challenging the constitutionality of the law.
So how will this political tussle end? Even after a few relatively quiet years on the sidelines, the issue of same-sex marriage seems to be as heated as ever. Outside the courtroom yesterday, protesters waved signs saying, "Sodomy is sin," and "Stop using Jesus to promote hatred." The arguments made by the lawyers revealed little room for compromise: A San Francisco city attorney and a lawyer for the National Center for Lesbian Rights said disallowing gay couples from marrying is unconstitutional discrimination akin to the antimiscegenation laws of the 1940s. Lawyers for the state of California and the governor's office maintained, meanwhile, that the institution of marriage has a long history of including only opposite-sex couples. A record 45 amicus briefs were filed in the case, many from religious organizations on both sides of the issue.
Even in this most liberal of liberal states, legal analysts say, there is no certainty about how the justices will rule. Only one of the justices on the California Supreme Court was appointed by a Democrat; the other six were all nominated by Republicans. And while three of the justices seemed to be swayed by those arguing on behalf of the state, two or three justices also seemed to be leaning toward the petitioners.
The court's decision, ultimately, may not be as simple as an up-or-down vote. The justices not only have to mull over voters' intentions when they passed Proposition 22; they also must wrestle with the fact that the state Legislature has passed two bills in the past several years legalizing same-sex marriage, only to watch the governor, Arnold Schwarzenegger, veto them. (In both instances, Schwarzenegger said he wanted to wait until the cases now before the state Supreme Court had been decided.)
Unlike many other states, California also has a robust domestic partnership law, passed in 1999, which gives gay couples almost all of the legal rights and benefits afforded to married couples. Civil unions, in other words, already exist in California in all but name. "It will be hard to point a finger at California and say, 'You discriminator,' because they've been way ahead of the curve in eliminating all of the tangible aspects of discrimination," says Kmiec. The flip side of that is also true, of course. "The court can turn that around and say, 'Well, if you've made virtually all of these choices, why are you withholding this last increment of dignity?' "