Judge Hears Debate on Gay Unions

SAN FRANCISCO —  In a two-day hearing before a Superior Court judge here, lawyers for the city and a dozen same-sex couples said excluding gays and lesbians from civil marriage was unconstitutional and as “repugnant” as the ban on interracial marriage struck down by the state’s high court more than five decades ago.

The arguments, concluded Thursday, opened the curtain on the core legal assault on California laws defining marriage as between a man and a woman.

Judge Richard A. Kramer is expected to decide whether the laws are constitutional by early spring. The matter should reach the California Supreme Court within two years.

Debated in the courtroom was the very definition of marriage -- whether it is bound by tradition or flexes with the times.

“What exactly is the state talking about when it uses the word ‘tradition?’ ” asked Chief Deputy City Atty. Therese Stewart, who argued the case for the city. “What the state is talking about is the tradition of exclusion of gays and lesbians. ‘We’ve always done it this way’ is not a reason; it’s a conclusion.”

Lawyers for the state countered that gays and lesbians receive generous domestic partner benefits, but that the tradition of marriage should not be altered.

Attorneys for conservative Christian groups, meanwhile, argued that gays and lesbians should not be allowed to marry because they could not naturally procreate, and that granting them entry would fling open the doors to other illegal unions.

“Our opponents are asking the court to destroy the foundation of a large building without considering the ramifications,” Alliance Defense Fund lawyer Glen Lavy, who is representing the Campaign for California Families, told Kramer. “If you redefine marriage, you will have likely created a constitutional right to incestuous and group marriages.”

The cases were filed last spring, after more than 4,000 marriage licenses issued to same-sex couples under a directive by San Francisco Mayor Gavin Newsom were invalidated by the state Supreme Court.

The high-profile ceremonies inspired a same-sex marriage movement nationwide that has drawn from the playbook of the civil rights era. They also energized gay marriage opponents, who last month won constitutional amendments banning the practice in 11 states.

Though state Atty. Gen. Bill Lockyer has professed his personal support for same-sex marriage, his office is compelled to defend existing law. In doing so before Kramer, Senior Assistant Atty. Gen. Luis Mauro offered a mixed message.

A sweeping benefits law for domestic partners that takes full effect next month demonstrates the government’s commitment to gay rights, he said. That system also will balance the need to maintain the heterosexual marriage tradition, he argued.

“They want respect and they want recognition, and they should have that,” Mauro said. “But we also hear what the people of California are saying through the ballot box and through their representatives. The word ‘marriage’ has a particular meaning to them, and they don’t want that meaning to change.”

Voters in 2000 approved Proposition 22, which reaffirmed the definition of marriage as between a man and a woman and dictated that out-of-state same-sex marriages not be recognized here. Kramer will rule on the constitutionality of that statute, as well as another family law statute modified in 1977 to restrict marriage to “a man and a woman.”

Lawyers for the city and the couples assert that the statutes discriminate against gays and lesbians as a group, based on their gender and sexual orientation. The laws violate state constitutional rights to equal protection, privacy and due process, they contend.

Same-sex couples are raising children, paying taxes, buying homes and caring for one another through illness, and there is no rational justification for the state to exclude them from the societal acceptance -- let alone tangible benefits -- that marriage offers, proponents said in court.

Mauro countered that laws are neutral on gender and sexual orientation because they don’t specifically ban gays and lesbians from marrying.

Gay marriage advocates drew heavily on the 1948 state Supreme Court decision that overturned the ban on interracial marriage and established a “fundamental right to marry the person of one’s choice.”

A separate system of benefits for interracial couples that was not marriage would not have passed constitutional muster, Stewart noted.

Opponents countered that the 1948 decision -- followed 19 years later by a similar U.S. Supreme Court ruling -- created a right to marriage, not a right to same-sex marriage, which does not exist.

Lawyers for conservative Christian groups -- who have filed separate lawsuits against the city in the matter -- argued that the state is in the marriage business solely to promote “ideal” families of heterosexual parents and their biological children.

“Men and women of different races can procreate. That is not true of same-sex couples,” said Rena M. Lindevaldsen, an attorney with the Christian legal group Liberty Counsel, which is representing the Campaign for California Families.

At one point, as Lindevaldsen spoke about the importance of biological parents raising children, Kramer stopped her.

“You just shifted on me,” the judge said. “You moved from procreation to raising children.... Is there a separate state interest in encouraging the raising of children in a family structure?”

Answered Lindevaldsen: Same-sex families are “not a proven family structure yet.”

Lavy said the state had an interest in encouraging “procreation to occur within marriage so those kids can grow up with their mom and dad.”

But Kramer wondered aloud how that interest, if it exists, would be compromised by allowing same-sex marriage.

“Maybe so,” he said of the state’s interest in the hypothetical straight couple. “But will they be deterred from procreating if the couple in the condo next door are a same-sex couple?”

Deputy City Atty. Sherri Sokeland Kaiser countered that if marriage were all about procreation, the state would not allow elderly or infertile couples to marry. If proven parenting skills were required, child molesters, and even child murderers, would be denied the right to wed.

“They make it sound like we want to wrest children away from their heterosexual parents and make them live with strangers -- homosexual strangers,” she said, adding that her opponents hint that same-sex marriage could lead to the extinction of the human race.

On the contrary, she said, gay and lesbian couples are having more children than ever and deserve the same treatment as straight families.

“If a stable, two-parent household benefits children, it also benefits the children of same-sex couples,” she said -- a point that even the attorney general’s office has stressed.

“They really only care about some children. They’re perfectly willing to deprive others of the [benefits and equal protections] of marriage.”