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Is Gay Marriage Ban Constitutional?

Analysts, citing various state high court rulings, disagree on how the issue is likely to be resolved.

March 28, 2004|Maura Dolan | Times Staff Writer

Twenty-five years ago, in one of the first such rulings in the nation, the California Supreme Court decided that the state Constitution protects homosexuals from job discrimination by a public agency.

Eighteen years passed before the U.S. Supreme Court reached a similar ruling that gays could not be singled out for official discrimination because of "animus."

Now, with the issue of same-sex marriage headed for California's courts, gay rights advocates are counting on the state's history of rulings on their side.

The state Supreme Court is expected to decide this summer whether San Francisco Mayor Gavin Newsom exceeded his authority when he began issuing marriage licenses to same-sex couples. Many legal analysts expect Newsom to lose that fight.

But the more explosive legal question is whether the state law that limits marriage to "a man and a woman" violates anti-discrimination provisions in the state Constitution. That issue is scheduled to return to a state trial court Thursday, and eventually to reach the California Supreme Court.

In recent years, the state's high court has sided with gay advocates in cases involving insurance for people with HIV, adoptions by gay couples and police stings aimed at gay men looking for sexual partners.

"A long line of precedent shows that it is clear that California's equal protection clause is more extensive" than the protections provided nationally by the U.S. Constitution, said Brad Sears, director of the Williams Project on Sexual Orientation Law and Public Policy at UCLA Law School.

But the state Supreme Court also ruled six years ago that the Boy Scouts of America could legally exclude gays. Six of the seven justices who supported that ruling, written by Chief Justice Ronald M. George, remain on the court.

Some legal scholars who follow the court say they expect to see that more cautious approach prevail when gay marriage reaches the justices.

"I don't see that this court is going to be that different from what they were six years ago," said University of Santa Clara law professor Gerald Uelmen.

One of the rulings on which advocates of gay marriage plan to rely heavily is a 1948 decision that overturned the state's ban on interracial marriage. That case, Perez vs. Sharp, came nearly 20 years before the U.S. Supreme Court rejected similar laws nationwide.

"The legal analysis applied to the interracial marriage case is almost uncannily applicable" to gay marriage, said Shannon Minter, legal director for the National Center for Lesbian Rights.

On the other side, lawyers who have challenged same-sex marriages say the 1948 ruling won't help gay advocates.

The interracial marriage ban was motivated by hatred, said Glen Lavy, a lawyer with the Alliance Defense Fund, one of the groups that has challenged San Francisco's same-sex marriages. "In contrast, we have thousands of years of history establishing that marriage is a union of the opposite sexes," he said. "That history did not arise out of prejudice."

Legally, the issue of whether the state's marriage law violates the Constitution has two parts. First, the courts look to see if a law that is being challenged discriminates against an identifiable class of people. Then the question is whether the state has a valid or compelling reason to justify discriminating.

Officials in San Francisco, which began marrying gay couples Feb. 12, argue that California's laws on marriage discriminate on the bases of both gender and sexual orientation. The state has no valid reason for either form of discrimination in its marriage laws, they say.

If the courts were to accept that argument, they would have to rule that gay marriage is not just permitted, but required by the state Constitution -- the same decision the Supreme Judicial Court of Massachusetts came to last year.

Opponents of gay marriage say the laws do not discriminate on the basis of gender because marriage law applies to men and women equally.

"The gender argument for same-sex marriage is basically silly," Lavy said.

But the California Supreme Court rejected a similar argument in the interracial marriage case. Back then, the state argued that the ban on mixed-race marriage was not discriminatory because it equally affected both whites and nonwhites.

If the court agrees that current marriage laws discriminate on the basis of gender, the state will have to present compelling reasons to justify the discrimination -- a very high hurdle. The court in the past has ruled that the state Constitution limits gender discrimination as strictly as racial discrimination.

If the court dismisses the gender challenge, the case will rest on how the court looks at discrimination on the basis of sexual orientation. There is no question that prohibiting same-sex couples from marrying discriminates on the basis of sexual orientation.

The issue will be how strong a reason the state needs to justify such discrimination.

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