Marriage: Could This Really Be Happening?

[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

Comments

[jos76]

It is not quit clear to me why so many right-wing conservatives are completely against gay marriage. They are essentially trying to convince people that mutually respectful relationships are not beneficial to the couple or the society around them. In addition, Democrats that favor civil unions over marriage rights are opening the door to straight couples entering into civil unions so that they can get the benefits alloted, without actually getting married. Civil unions, then , will actually lower the overall marriage rate. Who is to stop two straight "friends" from filing for a civil union in order to get work-related benefits in a state. Legalizing gay marriage would raise the overall marriage rates and civil unions would lower it. This is perhaps the goal of both political parties. Civil unions means no access to Social Security, whereas marriage does give access.

I'm a legally married gay man in Massachusetts, and because there is no federal recognition of our marriage, we will not contribute to the bankruptcy of Social Security because we will not have access to the money that we pay for legally married straight couples who tap into the Social Security Benefits of his/her spouse. Civil Unions may have nothing to do with gay rights, but rather may be a way of keeping money available in Social Security.
Jos76
www.jos76.wordpress.com