Supreme Court Agrees to Review Same-Sex Marriage Ruling

Thursday, December 21, 2006

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Supreme Court Agrees to Review Same-Sex Marriage Ruling

By KENNETH OFGANG, Staff Writer

The California Supreme Court unanimously agreed yesterday to decide whether the state’s ban on same-sex marriage violates a constitutional ban on discrimination.

The justices, meeting in San Francisco for their weekly conference, agreed to review the First District Court of Appeal’s Oct. 5 ruling in In re Marriage Cases, A110449.

Div. Two of that court held 2-1 that San Francisco Superior Court Judge Richard Kramer was wrong when he ruled that limiting marriage to a man and a woman violated the equal protection guarantee in the state Constitution.

Presiding Justice William McGuiness wrote:

“All can agree that California has not deprived its gay and lesbian citizens of a right they previously enjoyed; same-sex couples have never before had the right to enter a civil marriage. It is also beyond dispute that our society has historically understood ‘marriage’ to refer to the union of a man and a woman. These facts do not mean the opposite-sex nature of marriage can never change, or should never change, but they do limit our ability as a court to effect such change. The respondents in these appeals are asking this court to recognize a new right. Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage.”

State’s Interest

McGuiness said the state has a legitimate interest in preserving the traditional definition of marriage, particularly since same-sex couples have an alternative under the state’s domestic partnership law, which grants registered domestic partners the same rights as married persons, except that they cannot file joint state tax returns or exercise any right that is limited to married persons by federal law.

The state’s interest is particularly strong, McGuiness added, because California voters in 2000 approved Proposition 22, which precludes recognition of same-sex marriages. While a disagreement exists as to whether the initiative is an absolute bar to same-sex marriage, or merely precludes recognition of such marriages entered into outside the state, McGuiness wrote, “the citizens who voted for Proposition 22 unquestionably expressed a desire to limit recognition of same-sex partnerships as marriage in this state.”

Justice Joann Parrilli joined in the presiding justice’s opinion, adding in a separate concurrence:

“The Constitution is not some kind of ‘origami project’ to be twisted and reconfigured to accomplish ends better left to the democratic process. To those who are waiting for the rewards and responsibilities of marriage, this process will seem too slow; to those who feel the challenge to their ‘sacred’ civic institutions and the likelihood of change, it will seem too fast. The courts must move only at the pace, and within the limits, the law permits.”

Presiding Justice J. Anthony Kline dissented, arguing that the plaintiffs were seeking no more than “the application of an established right to marry a person of one’s choice; a right available to all that government cannot significantly restrict in the absence of compelling need.”

That need had not been shown, Kline wrote. Depriving same-sex couples of the right to marry deprives them of a fundamental constitutional right, he said, for which domestic partnership status cannot substitute.

“Homosexual couples are as able as heterosexual couples to love and commit themselves to one another, to responsibly raise children, and to define for themselves and to express to the world the authenticity of their relationship,” the justice wrote. “So too are they as able as other couples to benefit from the spiritual, religious, and emotional experience marriage best provides, and as deserving of the official respect and numerous other benefits the state confers upon the marital relationship.”

Other Conference Action

Massachusetts is the only state that authorizes same-sex marriage. Connecticut and Vermont have enacted civil union laws conferring a status similar to California domestic partnership, and a similar law is expected to be approved in New Jersey shortly.

Some states have more limited domestic partner laws.

The California litigation followed San Francisco Mayor Gavin Newsom’s decision to allow same-sex couples to get married at City Hall in 2004, which more than 4,000 did. The California Supreme Court, however, while declining to rule on the equal protection question, held that the mayor had no authority to ignore the statute in the absence of a judicial determination of its invalidity, and that all of the marriages were therefore invalid.

In other action at yesterday’s conference, the justices:

•Unanimously granted review, on its own motion, of the Oct. 5 ruling in Haraguchi v. Superior Court (People), B191161. The Court of Appeal for this district, Div. Six, held that a prosecutor who had written a novel with a distinct factual similarity to one of her cases could not remain on the case, but that her office could.

The Santa Barbara District Attorney’s Office did not ask for review, but the attorney general requested depublication of the opinion.

•Granted review of another Oct. 5 ruling of Div. Six, this one in the case of accused murderer Jesse James Hollywood. In Hollywood v. Superior Court (People), B188550, the court ordered Deputy District Attorney Ronald Zonen off the Hollywood case, but, as in Haraguchi, declined to disqualify the entire office of District Attorney Thomas Sneddon, who leaves office next month.

Both sides asked for review after the court ruled that Zonen had cooperated with the producers of an upcoming movie based on the case in what amounted to “public vilification of a defendant in a case which is yet to be tried.” In the context of a capital case, the court said in an opinion by Justice Kenneth Yegan, recusal of the prosecutor is necessary to preserve the integrity of the process.

Disqualification of the entire office was not required in the absence of specific facts showing that another prosecutor could not pick up the case and try it fairly, Yegan said. But retired Supreme Court Justice Armand Arabian, an attorney for Hollywood, said that conclusion was questionable in light of the size of the particular office and the fact that Zonen is one of its top prosecutors.

Hollywood, allegedly a former San Fernando Valley drug kingpin, was captured in Brazil last year after nearly five years at large. He is accused of masterminding the kidnapping and murder of the 15-year-old half-brother of a former friend who owed Hollywood a drug debt.

Four other defendants have been convicted in the case.

•Denied review of the Nov. 22 ruling by the First District’s Div. Four that a special election for district attorney of Mendocino County is required because the incumbent, Norman Vroman, died prior to the scheduled runoff election between himself and attorney Meredith Lintott.

The court ruled that a statute applicable specifically to an election involving two candidates, one of whom is the incumbent, takes precedence over the general provision that an election goes forward, with the deceased candidate’s name remaining on the ballot, if death occurs within 68 days of the election.

Lintott and the county counsel argued unsuccessfully that the special election provision of Elections Code Sec. 8026 applies only when the death occurs before the primary.

The case is Faulder v. Lintott, A115529.