SAN FRANCISCO – The California Supreme Court is seemingly as divided as society is over gay marriage.
For more than three hours Tuesday, the seven justices of the state’s high court shifted back and forth on whether to uphold California’s ban on same-sex marriage, at times appearing to spar with each other as they weighed their most important civil rights case in decades.
The justices peppered lawyers on both sides of the case with dozens of questions that made predicting an outcome a fool’s game. The court is reviewing a similarly divided 2006 appeals court ruling that upheld California’s ban on gay marriage and a 2000 ballot initiative confining marriage to a union between a man and woman.
The stakes in the courtroom were evident, as the justices aired their first public views in a case they must decide within 90 days.
Justices Marvin Baxter and Ming Chin, perhaps the court’s most conservative members, seemed to have the deepest reservations about siding with civil rights groups and San Francisco city officials, who argue that the ban violates the equal protection rights of gay and lesbian couples seeking the power to wed.
But Baxter and Chin were also frequently joined by Justice Carol Corrigan, a moderate who expressed sympathy with the civil rights argument but major concerns with tampering with the will of the voters. Corrigan indicated several times she may agree with the majority in the appeals court ruling.
“Our views on this topic are in the process of evolution,” Corrigan said to Therese Stewart, San Francisco’s chief deputy city attorney, who argued in favor of gay marriage. “There is substantial difference of opinion about what that evolution should look like. Who decides where we are in California in that evolution?” she asked. “Is it for the court to decide or the voters to decide?”
Other justices, however, hinted they have an obligation to intervene if the ban is unconstitutional. The justices repeatedly invoked another milestone marriage case – a 62-year-old California Supreme Court ruling that outlawed a ban on interracial marriage. At that time, it was the first court in the nation to strike the practice down as discriminatory.
Reading aloud from the 1946 ruling, Chief Justice Ronald George focused on a phrase that said marriage is a right to wed “a person of one’s choice,” without any reference to a man and a woman. George, often a crucial vote when the court is split, also relied heavily on recent U.S. Supreme Court rulings that have broadened the rights of same-sex couples, notably a 2003 decision that struck down Texas’ anti-sodomy statutes.
Justice Joyce Kennard also expressed skepticism that the court should wait for the voters or legislators to remedy discrimination, noting that Gov. Arnold Schwarzenegger already has twice vetoed legislation that would permit gay marriage.
The justices have 90 days to rule on the epic legal battle, which began to unfold four years ago when San Francisco Mayor Gavin Newsom gave same-sex couples the short-lived right to marry at City Hall. Similar legal challenges have cropped up in other states, where courts have for the most part upheld bans on same-sex marriage and other bans have been put in place at the ballot box.