A few observations from the big same-sex marriage day at the California Supreme Court:
(1) One of plaintiffs’ counsel, Shannon Minter, legal director of San Francisco’s National Center for Lesbian Rights, is a transgendered person. So that raises the question: Was Minter the first transgender to argue before the California Supreme Court?
Court officials didn’t know and Minter said he’d be surprised if he was. But Minter said it was “an honor for a transgender person to argue this case.”
(2) During arguments, Justice Carlos Moreno had an interesting exchange that had echoes of Brown v. Board of Education, 347 U.S. 483, the United States Supreme Court’s 1954 ruling that struck down state laws establishing separate schools for black and white children.
As Sacramento-based Deputy Attorney General Christopher Krueger tried to defend marriage for heterosexuals and separate domestic partnerships for homosexuals, Moreno said, “Counselor, are you saying separate is equal here?
“Separate institutions,” Krueger answered. “Then separate is equal,” Moreno voiced with surprise.
Moreno also seemed taken aback at Krueger’s insinuation that laws prohibiting same-sex marriages weren’t created out of animus toward gays and lesbians.
Chief Justice Ronald George responded to that later. “Clearly, [Proposition 22] wasn’t dealing in the abstract. Obviously, it was a reaction to marriage of people of the same sex.”
(3) Justice Joyce Kennard, famous for asking tons of questions — many of them notoriously long and complicated — during oral arguments, got a big laugh Tuesday. She had sat unusually quiet for a long time, saying nothing. Then she abruptly jumped in once San Francisco Deputy City Attorney Therese Stewart had answered another justice’s question.
“I’m trying to get a question in,” she told Stewart, which broke up a courtroom full of people who know her history. Kennard chuckled too.
(4) Justice Marvin Baxter, who appeared to be in the minority opposing same-sex marriage, got into a debate with Minter over domestic partnerships. He inferred that such partnerships seem to provide virtually equal benefits to marriage, and wondered what that meant for future legislation.
“Is the message to legislators, ‘If you vote in favor of progressive legislation, you risk enshrining that into the Constitution?’”
(5) When Deputy AG Krueger attempted to argue that marriage between a man and a woman has been a longstanding tradition that should be retained, Justice Kennard pointed out that California also used to prevent interracial marriage, allowed women to be treated as chattel and prohibited females from serving as police officers or firefighters.
“Isn’t the issue here similar,” she asked, “where there have been longstanding traditions of blah, blah, blah, etc., etc., etc.?”
Etc., etc., etc. is an old favorite of Kennard’s.
(6) When Krueger suggested same-sex marriage was an issue for the Legislature, Kennard noted that legislators twice approved marriage by gays, only to see Gov. Arnold Schwarzenegger veto both bills.
“We should wait until the Legislature acts a third time?” she asked.
(7) Speaking about the law restricting marriage to a man and a woman, George said: “It seems the statutory scheme does define marriage by who it excludes.” Also, in response to an insinuation by Krueger that the court should let the issue evolve, George said: “We don’t reach out and get these cases. They come to us.”
(8)Scottsdale, Ariz., lawyer Glen Lavy, representing the Proposition 22 Legal Defense & Education Fund, got mostly silence on Tuesday when he said gays and lesbians don’t want marriage. And why is that? Because, he said, they could marry a member of the opposite sex anytime they want. Even the most conservative justices didn’t want to touch that line.
(9) Asked by Justice Kennard what would have happened in 1948 if the state had set up domestic partnerships for interracial couples, San Francisco attorney Stewart said: “I think the court would strike it down in a heartbeat, your honor.”
(10) NCLR attorney Minter, during rebuttal, paraphrased Shakespeare when he told the court: “Same-sex couples have come here to praise marriage, not bury it.”
Not missing a beat, Chief Justice George responded: “I thought when you invoked Shakespeare, you were going to say, ‘What’s in a name?’”
It probably was disheartening to same-sex marriage opponents to see that exchange end with George and Minter sharing a hearty laugh.
— Mike McKee
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