Nix Gay Marriage, Calif. A.G. Tells Court

Nix Gay Marriage, Calif. A.G. Tells Court
by Mark Worrall
365Gay.com Newscenter
San Francisco Bureau
Posted: October 9, 2004 12:01 am ET

(San Francisco, California) Domestic Partnerships yes, gay marriage no, California's attorney general told a San Francisco Superior Court Friday.

In a legal brief filed with the court Attorney General Bill Lockyer said that the California Constitution does not prohibit laws barring same-sex marriage.

Lawsuits brought by the city of San Francisco and couples who married last winter in the city say that a state law which prevents gay couples from marrying is unconstitutional by violating the California provisions of equality.

The case is being keenly watched not only by gays and lesbians but also by both Democrats and Republicans. Lockyer, a Democrat has expressed interest in running for governor in 2006.

Lockyer argues that the court has an obligation to defend traditional marriage, but, says the brief, valid and committed relationships of same-sex couples must also be recognized.

It was the state's opening salvo in a case that will ultimately be decided by the California Supreme Court.

The case was precipitated after San Francisco began issuing marriage licenses to same-sex couples last February. (story) Thousands of other couples from across the country followed them in getting marriage licenses until the California Supreme Court in March ordered the city to stop. (story)

“Committed and loving relationships between two individuals deserve recognition under California law,” Lockyer said in the state brief.

“The obligations and benefits that attend such relationships form the cornerstone of nurturing families and a stable society. For more than a century, however, the people of California have affirmed through initiative and by the actions of their elected state legislators that those obligations and benefits are available through marriage to opposite-sex couples, and, now, through domestic partnerships to same-sex couples. Any change to this long-standing policy is best reserved to the judgment of the voters and the state legislature.”

Lockyer argues that state law should be upheld regardless of what standard of judicial scrutiny is applied. In its brief, the state contends the trial court should apply a “rational basis” review. Under this standard, state laws are presumed to be constitutional and will be upheld against challenge if they are “rationally related” to a legitimate state interest. The Attorney General argues that it is not irrational to extend to same-sex couples substantially all the rights and benefits afforded to married couples while maintaining the common and traditional understanding of marriage.

The Attorney General’s brief however rejects, as contrary to California policy, certain arguments that have been used in other states to justify laws prohibiting recognition of same-sex marriages. In some states, opponents of same-sex marriage have alleged that same-sex relationships are less committed or stable than opposite-sex relationships, and that same-sex couples would place children at risk. The Attorney General dismisses these arguments as false and inconsistent with California law, which extends to registered domestic partners the “same rights, protections, and benefits” afforded opposite-sex spouses.

The Attorney General also argues that because of the significant policy implications associated with defining marriage under California law, the legislative and electoral processes are the appropriate avenues for making changes in the future.

That future may come early next year. Assemblyman Mark Leno (D-San Francisco) is preparing to introduce a bill to allow gay couples in the state to obtain marriage licenses. (story) The bill has the support of the Majority leader and will likely pass the House but its success in the Senate is uncertain. Gov. Arnold Schwarzenegger has said in the past that he would not object to gay marriage if it were approved by the Assembly.

The parties in the case are to meet in court on Oct. 26 for a schedule setting conference.

Last month the state's domestic partner law was ruled valid in a case brought by a Christian conservative group