[Posted by Scott Graham]
Could the thousands, or perhaps tens of thousands of us watching California Supreme Court arguments on same-sex marriage today be watching history in the making?
Just a few years ago, the idea of the Republican-dominated California Supreme Court voting to find a right to same-sex marriage seemed far fetched, to say the least. As recently as a few months ago, as state supreme courts around the country were turning back similar arguments, a California ruling for same-sex couples still seemed a long shot.
At Tuesday’s arguments, though, four justices are clearly signaling with their questioning that they are sympathetic to the idea. It could, of course, be only for public consumption – but by and large the California Supreme Court justices usually say what they think.
As was widely expected, Justices Marvin Baxter and Ming Chin are
sounding strongly opposed to interpreting the California Constitution
to permit same-sex marriage. At one point Justice Ming Chin asked if
the rights offered by civil unions aren't "substantially the same" as
marriage three times within about 30 seconds. Justice Carol Corrigan
sounded less adamant -- agreeing that law and society are "evolving" --
but still skeptical that a constitutional right has materialized.
Meanwhile, Justices Joyce Kennard and Kathryn Werdegar – who
previously expressed reluctance about invalidating San Francisco’s same-sex marriages –
sound sympathetic to the same-sex couples bringing the case. Justice
Carlos Moreno, the only Democratic appointee on the court, appears to be with
them. At one point he suggested that Lawrence v. Texas, the 2003 U.S.
Supreme Court ruling, was not only about legalizing homosexual sodomy,
but also freedom of association. "Is that the same thing here," he
asked Deputy Attorney General Christopher Krueger.
So -- again, as was widely expected -- the crucial vote is falling to Chief Justice Ronald George. And, at least based on his questions, George is sounding strongly sympathetic to same-sex couples.
George has quoted liberally from passages of Perez v. Sharp, the 1948 ruling on interracial marriage that same-sex proponents rely on.
When Deputy AG Krueger argued that other state supreme courts have not found a right to gay marriage, George pointed out that most of those decisions have been only by one vote.
As for Corrigan's issue about a constitutional basis, George quickly followed up with Lawrence v. Texas, and joined with Justice Moreno in noting that U.S. Justice Antonin Scalia had warned in that case that it could provide a basis for same-sex marriage.
George also pointed to the recent report of a New Jersey commission that studied the effect of civil unions. “That report seems to be rather negative [about] civil union, or arguably domestic partnership, as compared to marriage,” George said.
He added that the court had taken judicial notice of the commission report last week. That decision presumably would have required a majority vote of the court, an ominous sign for the state.
— Scott Graham