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Gay Couples Challenge Calif. Marriage Law

Rights Issue Is Likely to Be Decided by State's Supreme Court, Both Sides Agree

By Joe Dignan
Special to The Washington Post
Thursday, December 23, 2004; Page A14

SAN FRANCISCO, Dec. 22 -- Lawyers on both sides of the same-sex marriage debate squared off for the first time on Wednesday in a legal battle over the constitutionality of California's one-man, one-woman marriage law.

The hearing before Superior Judge Richard A. Kramer is the first of many that both sides say probably will end up at the state Supreme Court, which will most likely decide the issue. More arguments are expected to be heard on Thursday in the courtroom across the street from City Hall, where San Francisco began granting marriage licenses to same-sex couples in February.

Randy Thomasson of Campaign for California Families shows his opposition to same-sex marriage as some of the couples who have filed suits look on. (Jeff Chiu -- AP)

San Francisco Mayor Gavin Newsom had challenged the law by granting the marriage licenses, and the state Supreme Court stopped him in March, after nearly 4,000 couples had taken their vows. In August, the court ruled that Newsom had exceeded his authority, and it nullified the licenses.

But this case is a challenge to the constitutionality of the state's rules against same-sex civil marriage on the basis of equal protection. When similar arguments reached Vermont's highest court in 1999, the state ended up with the country's first civil unions. In Massachusetts, where the state's Supreme Judicial Court ruled in favor of same-sex marriage in November 2003, advocates say that gay men and lesbians are likely to be able to get married for the foreseeable future.

When California's new domestic partnership law, AB 205, takes effect on Jan. 1, gay couples will have many of the same rights as heterosexual couples, but lawyers for gay supporters contend that those provisions are akin to the separate but equal segregation laws that the Supreme Court struck down with Brown v. Board of Education in 1954.

Shannon Minter, the legal director for one of the plaintiffs, the National Center for Lesbian Rights, argued that married heterosexual couples receive savings when they file their income taxes jointly, receive Social Security benefits when their spouses die, and are allowed to sponsor foreign spouses for permanent residency.

Senior Assistant Attorney General Louis R. Mauro argued that with its new domestic partnership statues, California is a leader in affording rights.

"They want recognition, and we hear that," he said. "But we also hear what the people of California are saying . . . that the word 'marriage' has a particular meaning for them.

"Do I look at this package of laws, and say that's good enough?" he asked. "Yes."

Mauro argued that Kramer should proceed slowly and give the legislature an opportunity to catch up to the judiciary on the issue.

Earlier this month, Mark Leno, a San Francisco assemblyman who is gay, introduced a bill that would legalize same-sex marriage.

Arthur Leonard, who has written extensively on gay rights and marriage, said in an interview that ultimately same-sex marriage is a political issue. To avoid being overturned by the state's initiative process, pubic opinion will need to catch up with the judiciary, he said.

In other places where lawsuits concerning same-sex marriage have succeeded, advocates chose states that have constitutions that are difficult to amend, such as Massachusetts, and where the public was persuadable.

"California was in the queue," said Kate Kendell, NCLR's executive director. "We probably would have waited another year or year and a half," but with Newsom's bold move in February, "fate dealt a different hand."

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