Waldlaw Blog

Wednesday, August 29, 2007

Update on the California Marriage Case

This article just appeared in the on-line version of the Advocate: Calif.'s Jerry Brown: Marriage "insignificant" Tuesday, August 28, 2007 / 02:04 PM SUMMARY: Equality advocates are cheered by the blitheness and brevity of recently wed Attorney General Jerry Brown's arguments to the high court against the right to marry. It's been roughly three and a half years since the National Center for Lesbian Rights sued the state of California, seeking the right to marry on behalf of a dozen same-sex couples. Now, after winding its way through two layers of court review and myriad interim rulings on this or that technicality, the case is heading into the home stretch before the California Supreme Court. And equality advocates are cheered by the blitheness and brevity of recently wed Attorney General Jerry Brown's arguments to the high court against the right to marry. Woo v. California is one of six coordinated marriage cases under review as one. After winning at the lower court level, the marriage cases lost at the appellate court in a 2-1 decision in October. This year has been spent writing briefs to the high court, a process that is nearing completion. In June, the high court asked lawyers on both sides to answer four supplementary questions, a request widely read as an indication that the justices take the underlying issues very seriously. Those supplementary briefs were due Aug. 17, and a quick page count suggests that the LGBT advocates took these issues as seriously as the court. Shannon Minter of the NCLR and his colleagues turned in 66 pages, or 18,546 words in response to the court. On the other side, Brown and his staff managed just over 2,000 words, little more than a few paragraphs on each question. In an ironic twist, Brown himself got married during the course of this long litigation. Why? "Well, first of all, she wanted a ring," the former governor joked to the media a couple of years ago. No doubt the future Mrs. Brown wanted the "insignificant" "m" word as well. Are there differences between California's registered domestic partners and married couples under state law? the court asked in question one. Minter listed 17 distinctions, ranging from the paperwork involved to the differing interpretations of the two statuses by state courts. The state, in turn, announced flatly that no differences exist, a claim advanced in three paragraphs with no explanation. What exactly does the "right to marry" encompass? the court asked in question two. Are there substantive features to this well-established legal claim? Of course there are, wrote the NCLR in a 13-page reply, although the main value of marriage lies not in a particular set of benefits, but in "the unique quality of intimacy and emotional connection on one hand, and the public validation on the other." The state, by contrast, wrote that although marriage was a "reciprocal and binding contractual commitment of mutual support," it did not have to include any particular rights. In other words, the legislature would be free to revoke any and all statutory marriage rights if it had a good reason. Question three asked whether the terms "marriage" or "marry" have any constitutional significance, or whether perhaps the legislature could just rename the institution at will? That would be fine, said the state in a ludicrous one-paragraph answer. "The state submits that the words 'marry' and 'marriage' have no essential significance under the California Constitution," wrote Brown's staff blithely. Question four, a technical matter of interpreting the state's ban on recognizing marriages from out of state, was knocked off with similar nonchalance. In a way, the state was left with little choice in its replies, since the questions seemed designed to force the attorney general's office to detail the assumptions behind their arguments in support of the status quo. In essence, the state has claimed from Day One that same-sex couples already enjoy the benefits of marriage, and that the name itself is insignificant. But the cavalier responses can't help but add to the optimism that surrounds the case as it gathers speed. By Friday, attorneys must reply to the supplemental briefs, presumably an easier assignment for the NCLR given that they have so little to address. On Sept. 17, friend-of-the-court briefs are due; replies to those briefs must be provided by Oct. 9. Only then will the justices schedule a date for oral arguments, most likely early next year. (Ann Rostow, Gay.com)


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