The Supremes Got Questions About Marriage

The state Supreme Court put more questions to the lawyers in the to-allow-gay-marriage-or-not litigation today, asking for more briefing before the typical rounds are even complete.

Reed Smith appellate specialist Paul Fogel noted how the court doesn’t make these requests in many cases. And while it’s not too surprising given the blockbuster nature of this case, the fact that the questions are coming now, rather than after the usual reply briefs come in July 5, struck him as unusual. “The court has enough to do [without] picking a case off the shelf that’s not completely briefed,” said Fogel, who’s not involved in the litigation. “But then,” he allowed, “this case is unusual.”

Chief Deputy City Attorney Therese Stewart, one of a battalion of lawyers arguing in favor of gay marriage, made much the same point. “Somebody working for one of the justices, or one of the justices, is already at a point where they’re deeply into the briefing and starting to think about the issues.” But she doesn’t think the order necessarily reflects the majority’s thinking. “Chances are good that this is coming from the justice who’s [been] assigned the case.”

Here’s what the court wants fleshed out more (we’re paraphrasing, but you can see the exact order yourself here):

1. Under current California law, what are the differences between the legal rights and obligations of domestic partners and married couples?
2. What, if any, are the minimum “attributes or rights” embodied within the constitutional right to marry that’s referred to in cases like Perez v. Sharp? (That would be the 1948 California Supreme Court case that wiped out the state’s ban on marriages between certain races.)
3. Would it be consistent with the California Constitution if the state Legislature were to change the name of the legal relationship of “marriage” to some other name, assuming the rights and obligations of that relationship remained the same?
4. We want more specifics on how we should interpret Family Code §308.5, a voter-passed law that says that “[o]nly marriage between a man and a woman is valid or recognized in California” — like, does the U.S. Constitution’s Full Faith and Credit Clause affect how it should be read? The parties in the case have argued over whether the language in 308.5 was meant to prohibit recognition of only out-of-state gay marriages, or of in-state ones, as well.

Alliance Defense Fund senior counsel Glen Lavy, one of the many lawyers arguing the state should keep on prohibiting same-sex marriage, agreed with his opposing counsel that “reading tea leaves is pretty hard to do.” But he takes heart in the fourth question. It, he said, “suggests that they’re taking seriously the idea that the federal Constitution places limits on how Proposition 22 can be limited, which is what we have argued. That doesn’t mean they’ve decided that. … That just means they’re looking at it and saying, ‘Oh, maybe there’s an issue here.’”

A pro-gay-marriage lawyer in the case, meanwhile, was glad to see the first question — though it’s territory both sides have been briefing since 2004.

“I’m delighted to get that first question, because it gives us an opportunity to reiterate just how profound the differences [between marriage and domestic partnership] are,” said Shannon Minter, legal director for the National Center for Lesbian Rights.

Similarly, Stewart said she was looking at the second question as “an opportunity.” “I think it’s a question that, frankly, we’ve already addressed in our briefs. But it’s an opportunity for us to address it again, and maybe address it in a way that resonates more.” On the other hand, she supposed the questions could just mean the court felt one side had probed an issue already but the other one hadn’t.

The most concrete prediction we heard bubble up today came from Reed Smith counsel Dennis Maio, who spent about 20 years working as an attorney at the Supreme Court, mostly for the late Justice Stanley Mosk. Contrasting this case to Perez, where the court “simply said no” to the state’s ban on interracial marriages, he said the new questions made it look unlikely the court will decide the gay marriage question on such a broad basis.

“But I think everybody knew that,” Maio added. “They’re going to make it as narrow as possible.”

—  Pam Smith