Courting Equality

California gays and lesbians have taken to the courts to fight a battle that could be waged elsewhere during the next year.

Four separate lawsuits by 23 California couples and the city of San Francisco argue that the state’s ban on same-sex marriage “constitutes discrimination—based on both gender and sexual orientation—and violates the fundamental right under the California Constitution to marry the partner of one’s choice, according to the San Francisco Chronicle.

At issue is whether California’s domestic partnership law confers second-class citizenship on same-sex couples—a contention made by New Jersey’s gay and lesbian community and a panel authorized to review the Garden State’s civil union law and one made by advocates for gays and lesbians around the country.

The California high court ruled in 2004 that San Francisco could not issue marriage licenses to gay and lesbian couples because the state banned same-sex marriages. But it did not rule on the constitutionality of the state ban itself, which was put in place in 1977 by the state legislature and then reaffirmed by a statewide voters’ initiative in 2000 that “defined marriage as being only between a man and a woman,” according to the New York Times. “The question before the court is whether those laws violate provisions of the state Constitution protecting equality and fundamental rights.”

A central argument being offered by supporters of same-sex marriage is that the use of different terminology creates separate classes of citizens. To designate a legal relationship between same-sex couples as a domestic partnership, as in California, or as a civil union, as in New Jersey, is inherently unequal, advocates say.

“Domestic partnership and marriage are not equal,” Therese M. Stewart, representing the city and county of San Francisco, told the court (according to the Times). “Words matter. Names matter.”

New Jersey state Supreme Court Chief Justice Deborah Poritz gave voice to similar thinking in her dissent in the 2006 decision that New Jersey Supreme Court granting gays and lesbians the same rights enjoyed by married couples, but did not grant them marriage.

The court’s decision, she said, endorsed second-class citizenship for gays and lesbians, who were “denied the fundamental right to participate in a state-sanctioned civil marriage.”

“Labels set people apart as surely as physical separation on a bus or in school facilities,” she wrote. “Labels are used to perpetuate prejudice about differences that, in this case, are embedded in the law. By excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage.”

The plaintiffs in California are trying to the same-sex marriage ban to the court’s 1948 decision overturning the state’s ban on interracial marriage, the Times said, 19 years before the US Supreme Court did the same.

Several justices, according to the Times, “seemed receptive to the analogy.

“Chief Justice Ronald M. George, seen by many here as the swing vote on a closely divided court, paused three times during the argument to quote from the Perez decision.

“‘The essence of the right to marry is freedom to join in marriage with the person of one’s choice,’ Chief Justice George said at one point, quoting a passage from the Perez decision by Justice Roger J. Traynor, who would go on to become chief justice of the court.”

The state’s argument defending its ban boils down to “take it slow; society isn’t quite ready.”

California may be right about society, but that’s not a good enough reason to maintain separate classes of couples. State bans on same-sex marriage, whether the states create alternate legal structures for gay couples or not, fail the basic standards of fairness and justice. Every couple should be treated equally.

Hank Kalet is a poet and managing editor of the South Brunswick Post and The Cranbury Press. Email and see his blog, Channel Surfing, at

From The Progressive Populist, April 15, 2008

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