Divorce Attorneys

The state’s ban on same-sex marriage confers second-class status on lesbians and gay men and invites discrimination, the city of San Francisco and 22 same-sex couples argue in briefs filed Monday asking the California Supreme Court to strike down its marriage law.

“The marriage exclusion tells lesbians and gay men that they are less worthy than child abusers, or sex offenders, or convicts in prison for murder,” wrote lawyers for City Attorney Dennis Herrera in a 98-page legal brief. “Because after all, those people do have the right to get married.”

More than three years after Mayor Gavin Newsom ordered marriage licenses granted to same-sex couples in February 2004, the filing of opening briefs – the best chance for the city and the couples to lay out their positions – was a key step in a case that, perhaps within a year, could yield a closely-watched ruling.

In their strongly-worded brief, San Francisco lawyers traced discrimination against lesbians and gay men from the first millennium to the Enlightenment to today. City attorneys compared their fight to the battle for desegregation and asked the court to ignore tradition and “the will of the popular majority,” a reference to voters’ affirmation of California’s marriage law in a 2000 ballot measure. Proposition 22 affirmed a law the Legislature passed in 1977.

In a separate brief, lawyers for 15 same-sex couples said the key question is “whether the California Constitution permits the majority to treat those in the minority in a way the majority would never accept for itself, simply because it wants to and has done so for a long time.”

Defending state law, Attorney General Jerry Brown has until June 2 to file a response to six briefs filed Monday, including two briefs from groups that oppose same-sex marriage and asked to be recognized as parties in the case.

The attorney general’s office has argued in the past for a middle path in the “all-or-nothing battle” between same-sex marriage advocates and opponents.

“Our argument is that the domestic partnership law in California provides partners with all of the rights given to married couples by the state,” Gareth Lacy, a spokesman for Brown, said Monday. “Our argument is that the parallel institution of domestic partnership does not violate (the California Constitution’s guarantee of) equal protection.”

The Supreme Court could hear oral arguments late this year, lawyers said, though it could take longer, and a ruling would come within 90 days after that hearing.

Matthew Staver – an attorney for the Campaign for California Families, which plans to argue against same-sex marriage in a filing in June – said Monday he remains confident the Supreme Court will uphold state law.

The tradition of reserving marriage for members of opposite sexes is built on the idea that “children should have the benefit of being raised by moms and dads,” Staver said; it is not founded on prejudice, he said.

“We have never felt that the attorney general has adequately defended (the case),” said Staver, the founder of Liberty Counsel, a religious legal organization. “The attorney general has basically advocated that the state has a right to have a parallel system to same-sex marriage.”

The Supreme Court, which nullified nearly 4,000 marriage licenses granted to gay and lesbian couples at San Francisco City Hall in February and March 2004, voted unanimously in December to take on the task of deciding whether California’s marriage law violates a constitutional right to marry the partner of one’s choice.