California Marriage Outcome Far From Clear

The California supreme court explored the meaning and significance of marriage on Tuesday when it heard the oral arguments in the state's marriage equality case. A decision as to whether the state law that prevents same-sex marriage is discriminatory will follow within the next 90 days.

Legal experts commented on both the length of the proceedings, which ran over the designated three hours, and the depth of the court's questioning.

"I was amazed at the stamina the court had for this issue," says Beth Hillman, a law professor at the University of California Hastings College of Law in San Francisco. "They were careful and thorough and skeptical toward both sides. They definitely went the full 15 rounds."

The seven justices spent significant time exploring whether gay men and lesbians are a "protected" class of citizens entitled to equal protection under the law - peppering both sides with questions regarding previous court decisions on interracial marriage.

In essence, Hillman explains, the questions showed that while the 14th Amendment protects African-Americans from race discrimination, there is nothing in the U.S. Constitution that specifically provides the same protection to gay men and lesbians. They also illustrated that while the courts have stepped out in front of public opinion in the past, as they did when removing bans against interracial marriage, they were not in agreement that now was the time do so again by supporting the rights of same-sex couples to marry.

This is why, she says, they spent so much time exploring the justices' concerns about proper democratic processes and, in particular, what weight to give to Proposition 22 - a voter initiative passed in 2000 that restricted the state's definition of the marriages it would recognize from other states to those between a man and a woman.

Justice Joyce Kennard often seemed intent on helping San Francisco chief deputy city attorney Therese Stewart and National Center for Lesbian Rights legal director Shannon Minter make their case in support of marriage equality. She grilled Christopher E. Krueger, of the state attorney general's office, about the disparate and contradictory arguments put forward by him as well as three other attorneys representing Gov. Arnold Schwarzenegger, the Proposition 22 Legal Defense and Education Fund, and the Campaign for California Families.

The state essentially argued that it had a rational basis to preserve the traditional definition of marriage, in part because so much progress had been made through means such as domestic-partnership laws. Meanwhile, the Proposition 22 and California Families lawyers argued that allowing same-sex couples to marry would devalue the institution of marriage and harm heterosexual couples. What did it mean, Kennard asked, that if the court were to rule in the state's favor it would also have to reconcile differences between rationales laid out by the different attorneys?

Questions such as these, says Hillman, illustrated the difficult position that the state is in. "The state's not going to say it's against equality and disparage gay men and lesbians. That's why they left it to the private groups against gay marriage to make those arguments."

Few doubt that Kennard would vote in favor of same-sex marriage. "Kennard," says Hillman, "was not afraid to show where she stands." In contrast, court observers say that the questions asked by two of the more conservative members for the court, Justices Marvin Baxter and Ming Chin, suggested that they would take the opposing side. Teasing out where the others stood, though, was more difficult.

"They are generally thought to be a moderate court," explains NCLR's Minter. "Six of the seven were appointed by Republicans; however, they generally are supportive of individual liberties and civil rights and have issued some remarkably progressive decisions protecting reproductive freedom, women's rights, and parenting and other rights for lesbian and gay people."

Still, says Hillman, the public has to remember that while the questions a justice chooses to ask might be designed to influence a colleague one way or the other, it's rare for the justices to leave the oral arguments with a different opinion than they had before they started. In that way, she says, while oral arguments are historic and exciting, viewers must also remember "it's a lot of political theater."