Tuesday, March 11, 2008

CA Supreme Court Considers Gay Marriage

Last week, the Supreme Court of California heard arguments in a case challenging the legal definition of marriage in that state. The case was brought by multiple gay and lesbian couples who have applied for and been denied California marriage licenses. Below, in the form of 11 streaming mp3s courtesy of Good As You, you can hear the arguments of the attorneys advocating expanding the definition of marriage to include same-sex couples, the arguments of attorneys striving to maintain the exclusively heterosexual definition of marriage, and the critical questions for each side posed by the justices.

I couldn't help but feel that I was hearing a pivotal piece of history when I listened to these recordings. For a guy from a rural, conservative part of a Southern state, the very fact that the highest court in our nation's most populous state is actually holding such a hearing blows my mind. Regardless of the decision that will be handed down from this court within the next 90 days, America is changing. And, just as I feel we have made enormous strides forward in the past 100 years (by abolishing Jim Crow, granting suffrage to women and African Americans, legalizing interracial marriage, etc.), I feel that America is on the verge of taking another positive step.

These recordings are fascinating for another reason: in them are found the arguments for and against gay marriage equality articulated in clear, precise terms. Moreover, the justices' apt questions rightly reveal the strengths and weaknesses of the arguments on both sides (e.g. check out the arguments in favor of traditional marriage and how the attorneys struggle to explain why the state has a compelling interest in heterosexual relationships that is different from homosexual relationships--the justices immediately point out the flaws in the old "heterosexual relationships are superior because they can produce children" argument)

My sense from listening to the justices' questions is that the court is somewhat divided. There are many, many different facets to these arguments, including how the court should interpret the confusing, perhaps mixed messages coming from the state legislature (which has two passed bills expanding the definition of marriage to include gay couples), the electorate (which passed the infamous Proposition 22, whose interpretation is unclear), and the governor (who claims to personally favor expanding the definition of marriage, but continues to veto the legislatures measures to do so on the grounds that Prop 22 indicated the people are opposed to gay marriage). Complicated.

The court is required to issue its decision within the next 90 days.

Session Preliminaries and Arguments by Gay Marriage Advocates
  1. Therese Steward, the chief deputy city attorney for San Francisco.
  2. Shannon Minter, attorney for the National Center for Lesbian Rights
  3. Michael Maroko, attorney for the plaintiff couples
  4. Woukeen McCoy, attorney for the plaintiff couples

Arguments by Traditional Marriage Advocates

  1. Christopher Krueger, deputy attorney general for California
  2. attorney for Arnold Schwarzenegger, governor of California
  3. Glen Lavy, attorney for Alliance Defense Fund
  4. Mat Staver, attorney for Liberty Counsel

Rebuttal from Gay Marriage Advocates

The court hears rebuttal arguments from two of the attorneys advocating gay marriage, who had reserved some of their allotted argument time for the end.
  1. Therese Steward, the chief deputy city attorney for San Francisco.
  2. Shannon Minter, attorney for the National Center for Lesbian Rights

Hat tip: Good As You, NPR


Pomoprophet said...

I was reading about this earlier. I really am torn on the matter. My evangelical background and conservative political views and sexuality are all in conflict. I guess i'm just glad (for once) that i'm not in charge! :)

I admit I voted in favor of Prop 22 (defining marriage as between a man and a woman). At the time I was in denial about my sexuality and really believed marriage was best as male/female. Shoot, up until very recently I still believed that!

And a big part of me is ok as long as there are domestic partnerships. I could get "married" and have all the same rights, just not have it called marriage. Ryan says there's a big difference but its something we disagree on ;)

I dont ever want to be someone to take a position simply because it benefits me. and where I have most problem with this lawsuit is that it could overthrow the will of the people. And that should not be how a democracy works. Judges are not to overthrow the will of the people. I know the arguments one could make against what i've just said...

but theres conflict.

And my views are changing.

I just want to live my life. And (atleast at this point) as long as ive got all the civil rights, I dont really care what its called. Its a marriage to me. And to God. Who cares what man says.

So when are you going to be not busy so we can talk???

seithman said...


The problem with "the will of the people" is that sometimes, the will of the people is completely wrong and mean-spirited. After all, it was Benjamin Franklin that compared democracy to two wolves and a sheep voting on what to have for dinner and liberty to a well armed sheep contesting the vote. ;)

And the past year in New Jersey has provided compelling evidence that "the same rights under a different name" just isn't going to work.

Joe Moderate said...


I hear you. And I think (some of) the justices on your Supreme Court probably find themselves in a similar position. That is, I think they sense that the people of California haven't completely worked through their misgivings about gay relationships.

However, I think we may be reading *legislative* priorities into the *judiciary* if we think that courts should rule according to the popular will. The Court is tasked with interpreting laws and cases in the light of the present constitution of your State. If, in their opinion, gay folks are being treated unequally under the law, the Court is welcome--in fact, constitutionally required--to strike down the unconstitutional law.

I think the interpretation of Prop 22 is unclear. However, even if it were crystal clear that Prop 22 explicitly defined marriage as a heterosexual institution, it's just a ballot proposition and *not* a constitutional amendment.

It would be interesting if the Court rules in favor of gay marriage until such a time as the electorate passes a *state constitutional amendment* defining marriage otherwise.

I agree that ruling in favor of gay marriage would be a decision that's probably "ahead" of where the average Californian is right now. However, court decisions about equality seem to always be this way.

That said, it's unclear to me how your Supreme Court will rule in this case. It's a really complex situation. I'll be interested to read the majority opinion and the dissenting opinion when the Court finally makes up its mind.