Issue:  Vol. 48 / No. 7 / 15 February 2018

Court told marriage is 'insignificant label'


Attorney General Jerry Brown. Photo: Jane Philomen Cleland
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In briefs filed with the state Supreme Court this summer two new legal arguments have emerged in the ongoing battle over same-sex marriage. San Francisco City Attorney Dennis Herrera, in briefs filed August 17, is challenging the attorney general's stance that marriage is a "constitutionally insignificant label" and therefore same-sex couples suffer no "constitutional injury" from being denied marriage licenses.

The AG's office has also claimed in its filings with the court that because the LGBT community advocated for and supported domestic partnerships that same-sex couples cannot now complain that such legally recognized relationships are not equal to marriage.

The arguments are the first indication of the legal strategy Attorney General Jerry Brown intends to pursue when the Supreme Court hears oral arguments in the case, which is expected to take place later this year or in early 2008.

After winning election last fall, Brown replaced Bill Lockyer as the state's top law enforcement official in January. Lockyer had argued before the courts that there was a fundamental right to marriage and said it was not up to the courts to grant marriage rights to gays and lesbians. That authority, he argued, was in the hands of state legislators or voters.

Brown's office did not immediately return a call seeking comment Wednesday about the legal arguments in his briefs before the court. In the filings with the court, Brown has argued that "the California Constitution does not contain a specifically enumerated right to marry."

Gay rights advocates said they found the AG's arguments "shocking and distressing."

"It is profoundly insulting, shocking, and certainly has no support in the law. The court has held over and over again there is a fundamental right to marry," said Shannon Minter, legal director of the National Center for Lesbian Rights, which is representing numerous same-sex couples in the case. "It comes a little too close to saying the state would rather destroy the fundamental right to marry than let gay people participate in it."

Geoff Kors, Equality California executive director, which is also involved in the case, said the argument contradicts the state's stance when it defended domestic partnership laws in another court case.

"The state and attorney general took the position in the AB205 legislation that domestic partnership and marriage is significantly different. It seems contradictory," said Kors.

Kors also called the AG's argument that the gay community has no standing to complain about being kept from marrying because it advocated for DPs "ludicrous."

"We always said this was unequal to marriage but we need the protections we can get," he said. "It wasn't a very proud moment to be asking for less than equality but we needed some protections for families in need and who were really suffering."

In its brief filed with the court last week, Herrera attacked the state's reasoning behind its arguments, saying if the court were to follow Brown's logic it would be turning its back on already established law.

The attorney general is asking "the court to alter this state's constitutional landscape in dramatic ways," wrote Herrera's office in its brief. "They do so because only through a sharp deviation from settled principles of constitutional law could the court allow the state to continue denying marriage licenses to same-sex couples."

The city contends if the court were to adopt such reasoning then "the state would be free to prevent any number of groups from getting married – i.e. people who have been divorced, deadbeat parents, or elderly couples." And if the notion of "marriage as a constitutionally insignificant label" were indeed true, the city argued that "the attorney general fails to explain why, if the title 'marriage' has so little meaning, the state and its allies are working so hard to ensure that lesbians and gay men remain excluded from it."

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