SAN FRANCISCO — Four years after thousands of same-sex couples streamed into this liberal bastion to apply for marriage licenses, the California Supreme Court on Tuesday took up the question of whether gay people have a constitutional right to wed.
During more than three hours of arguments from lawyers for and against same-sex marriages, several justices appeared to be skeptical of legalizing the unions, suggesting they see the state's domestic partnerships as marriage in all but the name.
Justice Carol A. Corrigan observed that it might be best to leave the question "to the democratic process" because the perception of same-sex marriages is evolving. She also asked lawyers to show her where the state Constitution addressed same-sex marriages.
"Is it better for this court to decide or the people of California to decide?" Corrigan asked.
Three of the court's seven justices strongly indicated that they would uphold the state law defining marriage as a contract between a man and a woman, one suggested that gays should prevail and the other three asked questions critical of both sides.
The court's extraordinary hearing regarding In re Marriage Cases, S14799, is the culmination of a long legal fight that began when San Francisco issued marriage licenses to nearly 4,000 same-sex couples in February and March 2004. San Francisco's extraordinary move came at a time of intensifying national debate over same-sex marriages after Massachusetts, as result of a historic 2003 court decision, became the only state to legalize same-sex unions.
The court is deciding four lawsuits brought on behalf of nearly two dozen same-sex couples. A trial judge here ruled in favor of same-sex marriages, but a Court of Appeal rejected that decision on a 2-1 vote. Atty. Gen. Jerry Brown and Gov. Arnold Schwarzenegger argued in favor of keeping marriage an opposite-sex union, and Christian-affiliated groups joined them.
The California high court invalidated the San Francisco marriage licenses in August 2004, but will decide within 90 days whether gay men and lesbians should be permitted to marry in the future.
The hearing attracted an overflow crowd in the courtroom and protesters outside who carried signs, including one that read "Sodomy Is Sin." Hundreds watched the televised hearing from various venues across San Francisco and at City Hall in West Hollywood, with many cheering the lawyers for same-sex couples and booing justices who asked critical questions.
Justice Marvin R. Baxter reminded lawyers that the initiative limiting marriage to unions between a man and a woman was ratified by the voters, and that the state Legislature has given same-sex couples "virtually equal rights except the title" of marriage.
San Francisco Chief Deputy City Atty. Therese M. Stewart told the court that "the name 'marriage' matters." But Justice Ming W. Chin chided: "Doesn't that place rhetoric over reality?"
Chief Justice Ronald M. George and Justice Carlos R. Moreno suggested that the state might have a rational basis for limiting marriage to opposite-sex couples because the federal government does not recognize same-sex marriages.
"Doesn't this just boil down to the use of the 'M-word' -- marriage?" Moreno asked.
"That symbol," Stewart replied, "has deep meaning."
George seemed skeptical of the argument that a ban on same-sex marriages amounted to sex discrimination because the ban "seems to treat males and females equally." But he also peppered the opponents of same-sex marriages with skeptical questions and stressed that the court had the authority to overturn long-established laws and voter initiatives.
Justice Kathryn Mickle Werdegar, one of the more liberal members of the court, asked Stewart if the concept of equal protection under the law evolves. Stewart replied that it did.
"Why is this the moment of truth as opposed to 10 years from now?" Werdegar asked.
"We're here today," Stewart told her.
Lawyers in favor of same-sex marriages said a 1948 California Supreme Court ruling that struck down a ban on interracial marriages set a precedent for upholding a fundamental right to marry the person of one's choice. But Baxter appeared incredulous, asking whether anyone really believed that the court back then envisioned same-sex marriages.
"When did same-sex couples acquire the constitutional right to marry?" Baxter asked. When a lawyer for same-sex couples replied that they have long had that right but the state has ignored it, Baxter again appeared skeptical. "So from the day the Constitution was adopted " more than 150 years ago?
Kennard, however, and some of the other justices also expressed uncertainty that a ban on same-sex marriages should be upheld as a matter of tradition.
"Just because there has been a tradition of something or other doesn't mean that that tradition is legally right or constitutionally protected," Kennard observed.