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‘Definition of marriage’ issue awaits opinion of California’s Supreme Court on gay ‘rights’

By Rick DelVecchio
March 7th, 2008
Catholic San Francisco (

SAN FRANCISCO, CA (Catholic San Francisco) - The California Supreme Court’s upcoming opinion on the definition of marriage will mark a step in a national debate that remains far from settled, according to a law professor who audited the high court’s March 4 hearing in San Francisco on the constitutionality of same-sex marriage.

“No matter what the decision is, we’re in a time of transition as far as marriage rights across the country,” said Beth Hillman, a professor at UC Hastings College of the Law, told Catholic San Francisco.

Hillman predicted the debate will evolve as courts and legislatures in many states struggle over whether the traditional definition of marriage deprives same-sex couples of a right they charge they should share with heterosexual couples, whether no change is needed because domestic partnerships provide all the benefits of marriage or whether a separate marital category should be created to benefit same-sex couples while preserving the tradition.

Hillman said the Supreme Court took on all sides of the struggle during its three-and-a-half hour hearing and did not indicate which way it would lean.

“I thought the court seemed closely divided and had many hard questions for both sides,” she said.

Challenge to traditional values

The hearing took place four years after the City of San Francisco issued marriage licenses to thousands of same-sex couples. The move defied Proposition 22, passed overwhelming by California voters in 2000 and which states that only marriage between a man and a woman is valid and recognized in California.

The court first heard arguments from attorneys for the city and for same-sex couples seeking to have their relationships validated by the state. They maintained that the exclusion is unconstitutional and asked the high court to overturn a 2006 Court of Appeal decision that upheld it.

In separate counter-arguments, lawyers for the State of California and two groups defending Proposition 22 said marriage should be limited to heterosexual couples on the grounds that domestic partnerships provide same-sex couples with full benefits, that procreation is the basis of marriage and that the court should not overturn the will of the people.

Hillman said the justices questioned why marriage should not be extended to same-sex couples if they are otherwise treated equally. She said the jurists also pressed one of the advocates to articulate a reason why marriage should be reserved for heterosexual couples on the basis of procreation.

Hillman said she felt the questioning of both sides indicated the justices want to understand all the issues and are in no hurry to redefine marriage in the absence of a political consensus.

“They’re concerned about potential backlash,” she said. “They’re concerned about the confusion. They’re confused about outpacing the public.”

Split decision ahead?

Another Hastings law professor, Calvin Massey, said the court is divided and he expects a split decision. He said the opinion could spark an appeal to the U.S. Supreme Court or reactions by state lawmakers and voters.

“If they uphold, there will be attempts in the legislature and the electorate to provide for same-sex marriage,” he said. “If the court reverses, then I would fully expect to see a constitutional initiative to amend the California Constitution to provide that marriage is between one man and one woman.

“What would the voters do, who knows?”

After the hearing, several gay and lesbian couples and their lawyers gathered on the courthouse steps and told reporters they felt the court was receptive to their case.

“We’ve wanted this day to come,” said the Rev. Troy Perry of Los Angeles, founder of Metropolitan Community Churches, who appeared alongside his partner, Philip Ray DeBlieck. “I thank God that I believe we’ve had an honest hearing before the Supreme Court.”

Bill May, chairman of Catholics for the Common Good, issued a written statement in support of traditional marriage.

“The interest of children is best served by laws encouraging and supporting marriage for their mothers and fathers rather than by supporting those who would intentionally deprive them of a mother or a father,” he said. “Redefining marriage will disconnect it from the most basic public interest — encouraging people who engage in reproductive acts to enter marriage commitments which provide their children with a mother and father.”

“Children can’t articulate their best interest; they depend on adults to do it for them,” he said.

Equal rights?

Before the hearing, proponents of Proposition 22 demonstrated in front of the courthouse with placards as a truck covered with signs condemning homosexuality circled the block.

Luke Otterstad of Placerville, a member of a church delegation who came to San Francisco to demonstrate in favor of the exclusion, held a running debate in front of the courthouse steps with three San Francisco men who want the marriage exclusion overturned.

“I’m not just here for the gay community,” said one of the three, Kerry Coles. “It’s more for equal rights.”

Across the street, Mike Choban and Victor Choban of Sacramento held a banner condemning sodomy. “America is going down and God’s judgment is coming,” Victor said. “Homosexuality is the last straw in the rebellion against God.”

Meanwhile, Dick Otterstad of the Church of the Divide in Garden City told police that both back tires of his pickup truck were slashed while the vehicle was parked near the courthouse. The bed of the truck was fitted with a four-sided sign promoting traditional marriage and denouncing homosexuality.

“If they would just keep in their bedroom, but they don’t,” he said. “They want you to feel it’s every bit as normal as any other sexual relationship. It’s not enough that they can do their act, it’s that they have to force it, and that’s fascism.”

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