Therese Stewart, San Francisco's chief deputy city attorney, was the first lawyer to present her arguments in the case, but the justices jumped in with questions less than a minute after she began speaking.
Stewart argued that domestic partnership and marriage are not exact legal equivalents, and that there is no constitutional justification to exclude lesbians and gay men from exactly sharing those rights.
But almost immediately, Stewart faced pointed questioning from Chief Justice Ronald M. George and all six other justices. The justices conceded the point that society's view of marriage is evolving. But Justice Carol Corrigan, referring to the state's vote in Proposition 22 in 2000, that limited marriage to a man and a woman, questioned why the Supreme Court should overrule the people's decision.
"Who decides where we are as California in this evolution of our understanding - of marriage? Is it for this Court to decide, or is it for the people of California to decide?"
Stewart answered that is the Supreme Court's responsibility to critically judge the Constitutionality of laws - whether they are passed by the Legislature or by initiative.
"The Court doesn't leave decisions like that to the political process," Stewart answered.
Quite right. This isn't about the court making legislative decisions--it is about it deciding whether it is constitutional for the legislature to discriminate against gay people.
One line of questioning the justices followed was to ask if by enacting domestic partnership, and bestowing virtually all the rights and responsibilities of marriage on same-sex partnerships, had the state opened itself to the possibility that there is no legal reason not to bestow the exact same rights on gay couples.
Stewart argued, and the justices appeared inclined to agree, that marriage was more than "a bundle of rights," but a status and identity bestowed by society.
"Hasn't this boiled down to the use of the 'M word' - marriage?" asked Justice Carlos Moreno.
"Words matter; names matter," Stewart said.
Something that I've considered, and I wish that Stewart had pointed out, is that the very fact that California has gone out of its way to recognize same-sex relationships undermines all their arguments that now they shouldn't be forced to. If they're giving all, or nearly all, the same benefits of marriage to same-sex couples via domestic partnerships, what possible legislative reason remains for them to treat those relationships as a completely different category from marriage? What possible reason is there to give gay couples all the rights of marriage, but not give them "marriage" itself? I can think of none except for sheer spite and bigotry.
Christopher E. Krueger, of the state attorney general's office, argued that the state has a rational basis to reserve marriage for heterosexual couples, in part because it has an interest in preserving that traditional definition.
"This is a definition of marriage that has proven durable for the state," Krueger told the justices. "It's not just any line that was drawn here."
Oh, please. The law banning same-sex couples from marrying in California dates back to 1977--a mere 31 years. California's law against interracial marriages, on the other hand, was enacted in 1850 and lasted nearly 100 years before being struck down in 1948. Isn't that much more traditional? Should the California Supreme Court have therefore ruled that anti-miscegenation laws were constitutional, being so very traditional? In fact, according to the dissent in Perez v. Sharp, the answer is "yes":
It will be shown that such laws have been in effect in this country since before our national independence and in this state since our first legislative session. They have never been declared unconstitutional by any court in the land although frequently they have been under attack. It is difficult to see why such laws, valid when enacted and constitutionally enforceable in this state for nearly 100 years and elsewhere for a much longer period of time, are now unconstitutional under the same Constitution and with no change in the factual situation.
Anyways. It turns out that the judges weren't that impressed, either:
Krueger's argument, however, immediately ran into pointed questioning from Justice Joyce Kennard, who wanted to know why earlier "traditional definitions of marriage that prohibited people of different races from marrying, or defined a wife as the property of her husband" shouldn't similarly be allowed to stand, simply because they were traditional.
Krueger countered that California's law prohibiting interracial marriage, struck down by the California Supreme Court in 1946, "was specifically only for the invidious purpose of racial discrimination. Here, yes it is a distinction that same-sex couples aren't allowed to marry under our laws, but that is not the same kind of exclusional statute."
Really? You're not excluding gay people? Coulda fooled me!
In making that statement, Krueger sparked questions from the justices about whether California's prohibition of gay marriage was a version of the "separate but equal" segregated public schools struck down by U.S. Supreme Court's Brown vs. Board of Education decision.
Referring to the difference between domestic partnership and marriage, Justice Moreno asked Krueger, if he was "saying that separate is equal here?"
"There are parallel institutions," Krueger began.
"But that separate is equal?" Moreno persisted.
"Here there is equality."
"And what distinguishes this," from laws that prohibited interracial marriage "is that there's no animus against gays and lesbians?"
"There's no animus."
"That that didn't motivate the creation of the law?" Moreno asked, doubt in his voice.
"It's not just that there's a lack of animus," Krueger said, arguing that the original conception of marriage couldn't have included hatred of homosexuals because no one could foresee such a thing as gay marriage so far in the past.
Okay, I have to respond to this. Originally, the California statute defined marriage as "a personal relation arising out of a civil context, to which consent of the parties making that contract is necessary." Wikipedia notes:
While related sections made references to gender, a state assembly committee that was debating adding gender-specific terms to this section in 1977 noted: "Under existing law it is not clear whether partners of the same sex can get married." That year, the legislature amended the definition of marriage to remove any ambiguity.
In short, this notion that there was no discriminatory intent in defining marriage as one man and one woman is total and utter bullshit. That language was added with the specific intent of discriminating against gay people, as was California's Proposition 22 back in 2000.
You'll find the same pattern in most other states. They only added the phrase "one man and one woman" to their statutes in response to gay people trying to get married, starting in the late '70s. The idea that these laws were a natural evolution of legislation, without any ill will towards gay people in mind, is a complete fabrication.
As for the idea that "There's no animus", that could've been disproven just by looking outside the courthouse to see the man holding the sign "Re-Criminalize Sodomy", or listen to the man saying that God sent hurricane Katrina to stop a gay pride parade.
Finally, though, I kinda like the lawyer's response to the "separate but equal" line of argumentation: "Here there is equality." Essentially, he's saying "Sure, we were discriminating all those times before, but now we've got it right!"
Another lawyer arguing against same-sex marriage, Mathew D. Staver of the Campaign for California Families said the state has a compelling interest in protecting heterosexual marriage - the procreation of children.
Same-sex marriage "would undermine opposite-sex marriage . . . it would lose its meaning. . . . it would create a new system that is no longer recognizable as marriage," Staver said.
Sure. If same-sex couples could wed, then opposite-sex couples would stop fucking and having kids. I'm sure that's exactly what would happen.
And let's not forget that gay couples have kids too, jackass.
Anyways. Short bit from the second article:
Lawyers defending Proposition 22 also found themselves on the hot seat when they tried to insist that permitting gay couples to wed would undermine traditional heterosexual marriage. At various points, Kennard, George and Corrigan all openly questioned that argument.
But Corrigan and Chin also pressed civil rights lawyers on why the state can't limit marriage. "Why doesn't the same argument apply to somebody who wants to marry two people?" Chin asked. And Corrigan interjected, "Or their cousin?"
Oh great. We're back to the "Don't the states have the power to restrict marriage however they want?" argument. That was the primary argument for most states preserving their anti-miscegenation laws. Widely quoted was Indiana's 1837 ruling State v. Gibson:
There can be no doubt that Congress possesses the power to determine who may, or may not, make contracts, and prescribe the manner of their enforcement, in the District of Columbia, and in all other places where the federal government has exclusive jurisdiction; but we deny the power and authority of Congress to determine who shall make contracts or the manner of enforcing them in the several states. Nor is there any doubt that Congress may provide for the punishment of those who violate the laws of Congress; but we utterly deny the power of Congress to regulate, control, or in any manner to interfere with the states in determining what shall constitute crimes against the laws of the state, or the manner or extent of the punishment of persons charged and convicted with the violation of the criminal laws of a sovereign state. In this State marriage is treated as a civil contract, but it is more than a mere civil contract. It is a public institution established by God himself, is recognized in all Christian and civilized nations, and is essential to the peace, happiness, and well-being of society. In fact, society could not exist without the institution of marriage, for upon it all the social and domestic relations are based. The right, in the states, to regulate and control, to guard, protect, and preserve this God-given, civilizing, and Christianizing institution is of inestimable importance, and cannot be surrendered, nor can the states suffer or permit any interference therewith. If the federal government can determine who may marry in a state, there is no limit to its power. It can legislate upon all subjects connected with, or growing out of this relation. It can determine the rights, duties, and obligations of husband and wife, parent and child, guardian and ward. It may pass laws regulating the granting of divorces. It may assume, exercise, and absorb all the powers of a local and domestic character. This would result in the destruction of the states.
Fortunately, eventually people realized that while states do have power over marriage, that doesn't give them the power to discriminate against their citizens in contravention of the Constitution.
But to consider the actual argument, "Why doesn't the same argument apply to somebody who wants to marry two people?" As I've said before, there's a large difference, legally speaking, between gay marriage and polygamy, and this difference also differentiates gay marriage from incest. That is, banning gay marriage singles out a specific class of people for discrimination: gay people. In this, it's even more obvious than that anti-miscegenation laws discriminated against blacks, because black people could still at least marry other black people, whereas gay people cannot marry at all. In the case of polygamy and incest, what class of people is being discriminated against? People who are already married, and people who have brothers? There's just no comparison at all.
Anywho. Here's what it looks like the tally will be, at least according to the simplistic view of the judges' opinions I gleaned from these articles:
Supporting the ban on gay marriage:
Striking down the ban on gay marriage:
I really hope I'm wrong. I guess we'll know come June.
[Edit 3/5/08] The Legal Pad, a blog that actually focuses on California law, has some posts liveblogging the oral arguments here, here, and here. There's also another post on the topic here, which suggests that Justice Werdegar might be more sympathetic to the case for gay marriage than I thought, which might make the ruling 4-3 in our favor.