Friday, June 15, 2007
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LACBA to Join Amicus Brief in Same-Sex Marriage Case
By TINA BAY, Staff Writer
The Los Angeles County Bar Association has decided to join same-sex marriage advocates who seek a state high court ruling that gays and lesbians have a constitutional right to wed.
At a meeting late Wednesday, the LACBA Board of Trustees voted unanimously to join an amicus brief being drafted by the Beverly Hills Bar Association on behalf of the plaintiffs in In re Marriage Cases. The coordinated cases, which challenge the constitutionality of existing statutes defining marriage exclusively as a union between a man and a woman, have been pending before the California Supreme Court since last November.
LACBA President-Elect Gretchen Nelson told the MetNews:
“The Los Angeles County Bar Association has a long tradition of standing up for equal justice under law and we are proud to add our voice in support of this vital democratic principle in this case.”
LACBA’s immediate past president, Edith Matthai, praised the board’s sensitive and deliberate approach throughout the discussion and decision-making process.
The board first visited the possibility of weighing in on the same-sex marriage question at a March meeting, but chose to leave the item open on its agenda for several months so trustees could thoroughly consider the matter before voting. One concern raised during the initial dialogue was whether the issue fell within the organization’s purview, Matthai noted.
According to its purview limitations document, LACBA, as a bar association representing members across the ideological spectrum, may take positions on “controversial issues” only if doing so furthers the concerns of its members and the profession as a whole. While actions related to the administration of justice or improving the reputation of attorneys in the community clearly fall within purview, actions likely to be perceived as politically motivated must be taken with “greater care and restraint” by the board, the document says.
At Wednesday’s meeting, Matthai said, board members discussed similarities between California’s same-sex marriage ban and the anti-miscegenation statute held unconstitutional by the state Supreme Court in 1948, in the case of Perez v. Sharp. That case, which long-preceded the U.S. Supreme Court similar ruling in Loving v. Virginia—involved an interracial Los Angeles County couple, Sylvester Davis and Andrea Perez, who were refused a marriage license because Davis was African American and Perez, a Latina, was considered white.
Assistant Vice President John Vandevelde told the MetNews he and his colleagues recognized that the same-sex marriage issue was almost identical to the injustice discussed in Perez .
“When you read that case, you can’t avoid realizing that in 2007, it’s just as wrong for two people to be denied the right to marry of their gender,” he said. “There are some people in 2007 who aren’t going to be as sensitive to that issue as others but if you read the Perez case, you just know that denying the right to marry to gay people and lesbian people is wrong, and it’s got to change.”
It is not a political issue that should divide LACBA’s 27,000 members, he said, but “a matter of people having basic human rights.”
BHBA’s Amicus Briefs Committee Chair Cindy Tobisman, who will be drafting the same-sex marriage brief, said the brief will set forth a two-part argument concerning the permissible scope of the court’s review.
First, she said, the brief will assert that the court’s rational basis review of the state’s marriage statute requires some objective rational connection to public welfare purposes.
The brief will then argue that the Legislature’s pronouncements in the domestic partnership law—which extended all available “rights and duties of marriage to persons registered as domestic partners”—limits the scope of the court’s rational basis review, Tobisman said.
Additionally, she noted, the brief will join the opening briefs in arguing that the case deserves strict scrutiny on the grounds that the right to choose a marital partner is fundamental, and that sexual orientation should be recognized as a suspect class.
The brief is due in August.
In re Marriage Cases stems from actions by individuals who were among the thousands of same-sex couples who were purportedly married at San Francisco City Hall in 2004. The suits challenge Family Code Sec. 300, which says a marriage in California is a union between a man and a woman, and Sec. 308.5, which provides that only a marriage between a man and a woman is valid or recognized in California.
In a March 2005 ruling, San Francisco Superior Court Richard Kramer held that both sections were unconstitutional under the California Constitution.
Div. Three of the First District Court of Appeal, however, reversed, citing the traditional definition of marriage and the prerogatives of state legislators and voters to make social policy, among other things.
Copyright 2007, Metropolitan News Company