Divorce Attorneys

Questions surprise lawyers on same-sex marriage case

The California Supreme Court surprised participants in the same-sex marriage case Wednesday with a new set of questions on the nature of matrimony, the rights of spouses and domestic partners and the meaning of a voter-approved ballot measure.

Lawyers on all sides were preparing to file a final round of arguments by July 5 on the constitutionality of the state law that defines marriage as the union of a man and a woman. The court asked for further arguments through Aug. 1 on the additional questions, diminishing the already-slim possibility that the justices will hear the case this year.

The case began in 2004 with San Francisco Mayor Gavin Newsom’s decision to grant marriage licenses to almost 4,000 same-sex couples. The state Supreme Court nullified the weddings in August 2004, ruling that Newsom had no authority to disregard the marriage law. That decision did not touch on the law’s constitutionality.

The case returned to Superior Court to decide lawsuits by same-sex couples and San Francisco challenging the ban. Judge Richard Kramer ruled in 2005 that the marriage law violated the fundamental right to marry the partner of one’s choice and discriminated on the basis of sex.

A state appeals court overturned Kramer’s ruling last October, saying the law’s exclusion of gays and lesbians could be justified by tradition and by the fact that domestic partners in California have most of the rights that married couples have.

That comparison of unmarried partners and spouses, the focus of the state attorney general’s defense of the marriage law, was the subject of the court’s first question Wednesday: What rights and duties do husbands and wives have under state law that domestic partners lack?

Although virtually all the legal differences between marriage and domestic partnerships under state law have been eliminated, advocates of same-sex unions say California’s refusal to classify their relationships as marriage denies them numerous rights under federal law in such areas as taxes, Social Security benefits and immigration status.

The other new questions are:

– What rights were protected by a 1948 state Supreme Court ruling that, while overturning a ban on interracial marriage, declared a fundamental right to marry?

– Does the term “marriage'’ have constitutional significance, or could the Legislature change its name while preserving all associated legal rights?

– Did Proposition 22, a 2000 initiative barring recognition of same-sex marriage in California, apply only to marriages legally performed in another state or nation? Or did it also prohibit any such marriages in California unless voters approve a new ballot measure?

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