Metropolitan News-Enterprise


Thursday. June 21, 2007


Page 3


S.C. Orders Additional Briefing in Same-Sex Marriage Cases


By a MetNews Staff Writer


The California Supreme Court yesterday asked attorneys for the state and for same-sex marriage advocates to brief additional issues related to the constitutional challenge to state laws limiting marriage to a man and a woman.

The justices, who met in San Francisco yesterday for their weekly conference, asked the attorneys to respond to four inquiries, including:

“What differences in legal rights or benefits and legal obligations or duties exist under current California law affecting those couples who are registered domestic partners as compared to those couples who are legally married spouses?  Please list all of the current differences of which you are aware.”

The state’s domestic partnership law says that registered domestic partners have the same rights as married couples except where those rights are limited to married persons by federal law. Same-sex marriage advocates have stated in the past that the number of such rights is in the hundreds.

The second inquiry posed by the high court yesterday was:

 “What, if any, are the minimum, constitutionally-guaranteed substantive attributes or rights that are embodied within the fundamental constitutional ‘right to marry’ that is referred to in cases such as Perez v. Sharp (1948) 32 Cal.2d 711, 713-714?  In other words, what set of substantive rights and/or obligations, if any, does a married couple possess that, because of their constitutionally protected status under the state Constitution, may not (in the absence of a compelling interest) be eliminated or abrogated by the Legislature, or by the people through the initiative process, without amending the California Constitution?”

Perez held that a state law barring interracial marriage violated the state Constitution, 19 years before the U.S. Supreme Court held in Loving v. Virginia that such anti-miscegenation statutes violated the federal Equal Protection Clause.

The other questions asked by the court were:

“Do the terms ‘marriage’ or ‘marry’ themselves have constitutional significance under the California Constitution?  Could the Legislature, consistent with the California Constitution, change the name of the legal relationship of ‘marriage’ to some other name, assuming the legislation preserved all of the rights and obligations that are now associated with marriage?” and:

“Should Family Code section 308.5 — which provides that ‘[o]nly marriage between a man and a woman is valid or recognized in California’ — be interpreted to prohibit only the recognition in California of same-sex marriages that are entered into in another state or country or does the provision also apply to and prohibit same-sex marriages entered into within California?  Under the Full Faith and Credit Clause and the Privileges and Immunities Clause of the federal Constitution ... could California recognize same-sex marriages that are entered into within California but deny such recognition to same-sex marriages that are entered into in another state?  Do these federal constitutional provisions affect how Family Code section 308.5 should be interpreted?”

The Family Code section was enacted by Proposition 22, a voter-approved initiative. Same-sex marriage opponents have consistently argued that it bans legal recognition of any same-sex marriage, whether entered into in California or elsewhere, while supporters of legislation that would permit same-sex couples in California have insisted otherwise.

The high court noted that its request that the parties brief certain matters is no guarantee that the issues will be addressed in the court’s opinion.

While reply briefs in In re Marriage Cases, are due July 5, the court gave the parties until July 18 to turn in their supplemental briefs and until Aug. 1 to reply to each others’ supplemental briefs, and waived the rule limiting the length of such briefs.

The high court is reviewing a 2-1 ruling by Div. Two of the First District Court of Appeal 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.

In other conference action, the justices granted review in Amalgamated Transit Union, Local 1756, v. Superior Court (First Transit, Inc.). The Court of Appeal for this district ruled in that case that union members could not assign their statutory right to sue their employer for labor law violations to the union.


Copyright 2007, Metropolitan News Company