Attorneys for the state and governor’s office opposed to gay marriage seemed to focus a great deal on the level of scrutiny the court should use to evaluate existing law, and the question of whether gays and lesbians are a “suspect class.” Christopher Krueger, supervising deputy AG argued for the state and Kenneth Mennemeier of Sacramento’s Mennemeier, Glassman & Stroud argued for the governor.
Krueger, under questioning from Justice Joyce Kennard, explained that the AG’s office and the governor’s office are being represented by different attorneys (contrary to usual practice) because they differ on the proper level of scrutiny. The AG’s office thinks the existing statutes satisfy “intermediate” scrutiny, and the governor’s office argues the laws satisfy strict scrutiny.
Two U.S. Supreme Court sodomy-law cases were raised to look at the appropriate level of scrutiny, Lawrence v. Texas, 539 U.S. 558 (2003), and Bowers v. Hardwick, 478 U.S. 186 (1986). The court had deemed sodomy laws constitutional in Bowers, and Lawrence reversed that. Lawrence took a broad view of people’s rights to sexual privacy under the Constitution.
Rounding out the arguments were attorney Glen Lavy, arguing on behalf of the Prop. 22 Legal Defense and Education Fund, and Mathew Staver of Liberty Counsel, representing the Campaign for California Families.
Here are some excerpts:
Justice Carlos Moreno: “How would you interpret Lawrence case?”
Krueger: “I think that when Justice [Antonin] Scalia was predicting that the Lawrence holding was going to lead to same sex-marriage he was engaging in a bit of hyperbole.”
Moreno: “But we’re here.”
(laughter erupts in the gallery)
Moreno: "Was [Lawrence] talking about sodomy or broader rights? Do we just look at the specific definition of marriage or the attributes that incorporate it?"
Krueger: “I think it would be a very different case if the attributes of marriage were not being provided here, but they are.”
Chief Justice Ronald George: “Are we talking about the right to marry a person of the same sex, or the right to marry, period?”
Krueger: “All the fundamental right-to-marry cases represent marriage as between heterosexual couples. … The right is already defined.”
Mennemeier: “The issue before the court is whether to use strict scrutiny as a standard of review for evaluating whether gays and lesbians are a suspect class. … There was the suggestion in the AG’s brief that the court consider adopting a new, intermediate level of scrutiny. We take issue with that. … The statutes do not discriminate with regard to any suspect classification.”
Justice Joyce Kennard: "Is it your view that same-sex couples wouldn’t be as good at parenting as opposite-sex couples? … That was one argument implicit in the main argument that one of the parties made. Do you share that view?”
Mennemeier: “State law recognizes that families take many forms, and the state does not give preference to one form or another.”
Glen Lavy: “I believe that Prop 22 controls the public policy on marriage in California. … All power of the government resides with the people.”
George: “But isn’t the ultimate expression of the people’s will the constitutions, both federal and state, that they have adopted?”
Lavy: “People are the ultimate arbiter of power.”
George: “Subject to judicial review.”
Lavy: “Subject to judicial review.”
Justice Kathryn Mickle Werdegar: “Does this leave this court with no role to play? What is our role?”
Lavy: “I don’t believe the court has a role in redefining marriage. … I would submit that at most, this court could say that the marriage laws are unconstitutional. I don’t think the court has the right to rewrite marriage laws.”
Werdegar: “So we could decide they deny equal protection … but we have no relief we could give?”
Lavy: “I’m saying it would be the court’s role to send it back to the Legislature.”
George: "So the court was wrong in 1946 when it invalidated the miscegenation laws?”
Lavy: “I would respectfully disagree with that conclusion.”
George: “I think it boils down to a question of semantics.”
Lavy: “The anti-miscegenation laws were very different from today’s marriage laws. … Today’s marriage laws recognize what has always existed in recorded history. … Miscegenation was recognized common law.”
George: “There’s been a [long] history … of miscegenation laws.”
Staver: “The institution [of marriage] has always been between one man and one woman. … That has stayed consistent.”
George: “Not everybody agrees with that.”
Kennard: “You have argued that defining marriage between a man and a woman promotes an optimal environment for the rearing of children. … Is it your view that same-sex couples are not as good at parenting as opposite-sex couples?”
Staver: “We may all have different views on that. … But the legal issue is not whether that’s an optimal environment. … The state has a legitimate interest in integrating the sexes, not segregating them. … I think there are number of studies that suggest children do best when raised by their genetic biological parents.”
Kennard: “My question is, what adverse social consequences you would foresee if we were to disagree with your view?”
Staver: “I think it would undermine opposite sex marriage. Like sodium and chlorine … becoming salt. … You can’t separate those and give it the same title.”
Justice Carol Corrigan: “I’m finding that argument to be a little elusive … How would this undermine opposite-sex marriage?”
Staver: “It would lose its meaning. Marriage is important because it transcends human societies. It would create a new system that is no longer recognizable as marriage.”
George: “Would it deprive people of their rights, opposite-sex couples?”
Staver: “I don’t know if it would deprive them of their rights. … In the Netherlands, the institution has started to disintegrate."
Kennard: “And in Canada, Belgium, Spain and South Africa too?”
Staver: “We don’t know the consequences of this [in all those countries].”
The California Supreme Court has three months in which to issue a ruling on this issue.
— Jessie Seyfer