March 4, 2008 / 7:51 AM / 11 years ago

California's top court seems split on gay marriage

SAN FRANCISCO (Reuters) - The California Supreme Court appeared divided on Tuesday over whether to allow gay marriage during nearly four hours of oral arguments on the contentious issue that could impact gay rights nationwide.

Bruce Ivie (R) and David Bowers enter the California Supreme Court in San Francisco, March 4, 2008. REUTERS/Robert Galbraith

Several of the seven judges asked whether the state legislature might better decide whether matrimony should be limited to a man and a woman, while others pointed to how the same court ended the state ban on marriages between blacks and whites after World War Two.

“I think it’s going to be a divided opinion but I wouldn’t want to predict who will win,” Christopher Krueger, a lawyer representing the state attorney general who presented arguments before the judges, told Reuters.

The hearing brought into focus the highest-profile U.S. fight over gay rights in recent years and the outcome could influence legislation and lawsuits in other states on what has been a hot-button issue in recent election campaigns.

“California’s a bellwether state. What happens here, blows east,” Larry Bowler, a retired deputy sheriff from Sacramento who opposes gay marriage, said outside the courthouse.

Expecting heated disagreement over a case in which constitutional questions are at stake, the state’s top court scheduled a three-hour session, making a rare exception to its one-hour limit on oral arguments. But the marathon hearing lasted three hours and 40 minutes, and several court officials said it was the longest such session they could remember.

“Same-sex couples come here today to praise marriage, not to bury it,” said Shannon Minter, a lawyer for clients who favor gay marriage.


The top court now has 90 days to issue an opinion, with a decision before May unlikely. Six of the judges were appointed by Republican governors and one by a Democrat and the panel is considered politically moderate.

Judge Joyce Kennard summed up the uncertainly about the outcome when she told a lawyer: “You don’t know where we are going.”

Several judges pointed out that California already extends registered same-sex partners essentially the same benefits as married couples. “Doesn’t this really boil down to the use of the M word, marriage?” asked Justice Carlos Moreno.

“That symbol has deep meaning for both sides of the case,” said Therese Stewart, a lawyer representing San Francisco.

San Francisco Mayor Gavin Newsom forced the gay marriage issue by suddenly issuing gay marriage licenses in February 2004 and allowing the nuptials in City Hall — across the street from the California Supreme Court’s chambers.

More than 4,000 homosexual couples took Newsom up on the offer, before a court halted the process.

Some judges asked on Tuesday how the state could bar polygamy or underage or immediate family member marriages, but not same-sex marriages.

Gay marriage supporters won an initial battle in the case when a Superior Court judge ruled in their favor in 2005. The following year a state appeals court judge overruled that decision and backed existing state law.

Californians in 2000 approved a ballot measure defining marriage as the union of man and woman. But domestic partnership legislation as of 2005 gave registered gay couples many of the same privileges enjoyed by married couples.

Slideshow (4 Images)

California’s legislature has voted twice since 2005 to allow gay marriages, but Gov. Arnold Schwarzenegger, a Republican, vetoed the bills, saying voters or the courts should decide the issue.

More than half of U.S. states have passed amendments barring same-sex marriage, and President George W. Bush has proposed a U.S constitutional amendment to do so.

State supreme courts in Massachusetts, New Jersey and Vermont have ruled against limiting the benefits of marriage to a man and a woman. Massachusetts has since became the only U.S. state to allow gay marriage, and New Jersey and Vermont passed civil union laws similar to those in California.

Editing by Phil Barbara

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