Online extra: Friends of the Court: Cities, counties push for change

  • by written by Pamela Brown; edited by Molly McKay
  • Friday February 15, 2008
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In his campaign two years ago, San Diego Mayor Jerry Sanders stated his support for domestic partnerships, not marriage. He consistently indicated he would veto the City Council's resolution for San Diego to sign onto the cities and counties' amicus brief that urged the California Supreme Court to grant same-sex couples the right to marry. What happened once the resolution landed on his desk, however, has become one of the most moving and unforgettable moments in this marriage equality movement.

On the eve of his re-election campaign last September, this Republican mayor held an emotional news conference, and with his wife by his side, stated "I have decided to lead with my heart ... to do what I think is right, and to take a stand on behalf of equality and social justice. The right thing for me to do is sign this resolution." (See the entire news conference at

Sanders explained he had personally wrestled with this issue for some time. He said "my opinions on this issue have evolved significantly�as I think the opinions of millions of Americans from all walks of life have.� After talking with his lesbian daughter, Lisa, and a gay staff member, he said, "I want for them the same thing we all want for our loved ones ... for each of them to find a mate whom they love deeply and who loves them back ... and I want their relationships to be protected equally under the law. In the end, I couldn't look any of them in the fact and tell them their relationships – their very lives – were any less meaningful than the marriage I share with my wife."

In all, over 20 California cities and counties, including seven of the 10 largest cities in California, signed onto this amicus brief. In recognition of Freedom to Marry Week, Marriage Equality USA is featuring this cities and counties' amicus brief, along with an amicus brief filed by Professor M.V. Lee Badgett and senior research fellow Gary Gates, which analyzes U.S. Census data on same-sex couples in California. In partnership with the Bay Area Reporter, MEUSA is highlighting each of the 30 amicus "friend of the court" briefs submitted by hundreds of supportive organizations, professional associations, and religious institutions filed before the California Supreme Court in favor of same-sex couples' freedom to marry.

"I issue this Certificate of Inequality to you because your choice of marriage partners displeases some people whose displeasure is, apparently more important than principles of equality." – Yolo County Clerk Freddie Oakley's Certificate of Inequality

Each year, gay and lesbian couples go to their local county clerk's office to request and then be denied marriage licenses. These marriage counter actions provide a means to render visible the discrimination that gay and lesbian couples endure because they are denied the freedom to marry. Yesterday (February 14), hundreds of same-sex couples, accompanied by the friends, families and supporters went to their local marriage counters in over 20 counties across California and were turned away ... hopefully for the last time.

"We are expecting twins in August and hope that their parents can marry before they are born," said Kinna Patel Crocker, MEUSA Sacramento chapter leader. "We are so happy that Sacramento signed on to this brief in support but it is still an affront to our basic dignity as fellow human beings when Ashle and I are turned away from the marriage counter. It hurts to be reminded that we are not treated equally under the law. Year after year, Ashle and I and other gay and lesbian couples have shown up and been open, honest, and courageous. We value commitment, loving and caring relationships, and stability the same as the rest of the community."

Moved by having to turn couples away from his marriage counter, Warren Slocum, San Mateo county clerk, wrote letters to each of the 58 county clerks last year asking them to stand in support of a bill that would allow same-sex couples the freedom to marry.

"I have turned away many same-sex couples who have asked me to unite them in marriage," Slocum wrote. "I'm sure that many of you have faced the same situation. You have kept your oath of office and faithfully administered the duties of the office by adhering to California law and apologized for denying them the right to marry. I think there is a better way that will eliminate the needless harm and financial burdens that our current law places on same-sex couples and their families."

"I'd like to believe that we have the political will and sway to end marriage discrimination based on gender and sexual orientation," Slocum added. "As you know, California is home to the largest number of same-sex couples in the country. We should take the lead ... in urging the passage of AB 43, the Religious Freedom and Civil Marriage Protection Act."

Yolo County Clerk Freddie Oakley produced her own "Certificate of Inequality" that she gives to same-sex couples she has to turn away. Doing so provided Oakley a way to express her frustration of wanting but being unable to issue marriage licenses to gay and lesbian couples in her county.

"It is a very unpleasant task and it gets harder every time I have to do it," Oakley told CBS News in an interview. Oakley has been married to her husband for 38 years, has two kids, and is an evangelical Christian. "I don't think that religion belongs at the office. I think it is wrong. I don't go down and tell my pastor how to preach and I don't want him to stand behind my counter."

"Contrary to popular stereotypes, data from Census 2000 demonstrate that same-sex couples are geographically, demographically, and economically similar to married couples in California. Because same-sex couples and married couples are similarly situated, the right to marry is equally important and valuable to both groups." – Badgett/Gates amicus brief

"We wanted to make sure that the California Supreme Court understood what was at stake for tens of thousands of California families," said Badgett. "The census data gives us the best picture of the broad range of same-sex couples and their children."

This amicus brief confirms Slocum's point that the largest number of same-sex couples in the nation (more than 90,000) live in California. In addition, California has the highest percentage of same-sex couples, followed by Massachusetts, which is currently the only state that allows same-sex couples the right to marry. Same-sex couples live in every county of California, represent every ethnic and racial group, and are active contributors to California's economy. Despite the military's anti-gay "Don't Ask, Don't Tell," a significant portion of gays or lesbians in same-sex relationships have served in the armed forces. In addition, over 70,000 children are being raised by same-sex couples in California, more than any other state in the nation.

These statistics clearly illustrate gay and lesbian couples live throughout California and look like any other married couple, except they can't marry. As a result, a growing number of elected officials who represent these couples are fighting for these families to receive the same dignity, rights, and respect as any other in their district. As described in the cities and counties' amicus brief, "municipal amici ... were pioneers in the creation of domestic partnerships ... to create legal recognition of gay and lesbian families, and establish at least a floor of decency in government treatment of same-sex couples. But they were aware that their legislative enactments were a long way from the ceiling of true equality with married couples."

In Los Angeles, California's largest city and home to the largest number of same-sex couples in the state, not only did the city council sign onto this amicus brief, it also unanimously passed a resolution in support of the freedom to marry. A news release issued by then-Councilman, now Council President Eric Garcetti stated, "Americans have reaffirmed time and again that the government must not discriminate. We hold many different religious beliefs that no government action can intrude upon. But our secular institutions must recognize the right of each and all to join in freedom and love with our chosen partners to build our lives together. The rights that marriage confers must not be denied based on someone's choice of partner."

Once passed, the bill was hand-delivered to Mayor Antonio Villaraigosa, who signed the bill and then immediately faxed it to Sacramento.

"The desire to exclude gays and lesbians from the right to marry ... is the result from a long unhappy tradition of invidious discrimination against gays and lesbians in Western society generally, and California specifically. The current laws that embody and perpetuate that tradition are intended to mark gay and lesbian Californians as less than full and equal citizens." – Cities & Counties' amicus brief.

In what can be described as one of the most creative amicus briefs, citing Oscar Wilde and The Canterbury Tales , the cities and counties' amicus brief clearly illustrates the animosity and hatred gays have faced over time and how that has contributed to the current exclusion of marriage for same-sex couples. For example, this amicus brief points out that in The Canterbury Tales , the most disreputable characters – the summoner and the pardoner – were gay and "lest the reader not understand the degree to which these men were hated, Chaucer depicted them as romantically engaged."

This amicus brief goes on to describe an abhorrent history of discrimination against gays and lesbians where the state could take for granted that gays and lesbians wouldn't consider asking for the right to marry because "it was unthinkable that a gay or lesbian couple could be permitted to exist in society, much less participate in it openly." However, as gays and became more visible, the state then passed legislation to restrict the once gender-neutral language in the family code to specify marriage to only be between a man and a woman."

As Slocum describes in his letter to the other county clerks, "We have an historic role as county clerks and commissioners of marriage in California. Prior to 1977, the California Family Code recognized marriage as a relationship arising out of a civil contract between 'two persons.' I have been told that in 1977, the County Clerks Association of California sponsored legislation to change that definition to ensure that only 'a man and a woman' could receive a civil marriage license ... I believe a replacement of this law is in order."

As further described in the cities and counties' amicus brief, "While it may be true that the state itself harbors no specific ill will toward its gay and lesbian residents, and that the state asserts an interest in denying those residents the marriage right only to enforce in law the popular will, it is apparent that the popular will is motivated by a simple prejudice against gays and lesbians."

And the cities and counties' amicus brief then quotes from briefs filed on behalf of the freedom to marry to illustrate that hatred still exists today.

"Our state constitution guarantees not near-equality, but equality itself." – Cities & Counties' amicus brief

As described in the cities and counties' amicus brief, "The attorney general and the Court of Appeal offer only one reason why gay and lesbian couples are not permitted to marry: it has always been that way, and (as evidenced by the 1997 amendments to the Family Law Act and the 2000 ballot measure) many people want it to remain that way." But, "the simple desire to enshrine in law antipathy toward a popularly-disfavored group is not, and can never be, a legitimate goal of American government. "

Furthermore, the cities and counties' amicus brief contends "the creation of domestic partnerships does not cure the constitutional infirmity caused by the state's denial of marriage equality for gay and lesbian Californians. ... It is insufficient merely to move toward the goal of true equality, to move 'closer' to the goal of realizing the promise of actual equality for all Californians and all California families. For equality before the law is not a mere aspiration; it is a constitutional guarantee. It is a right held by all Californians that cannot, without doing violence to that guarantee, be delayed or parceled out bit by bit through legislative gradualism."

In addition to San Diego, Los Angeles, Sacramento, and San Mateo County, the cities of San Jose, Long Beach, Oakland, Santa Rosa, Berkeley, Santa Monica, Santa Cruz, Palm Springs, West Hollywood, Signal Hill, Sebastopol, Fairfax, Cloverdale, Davis, and Cotati and the counties of Santa Cruz, and Marin signed onto this amicus brief that can be found online at:

A complete copy of M.V. Lee Badgett and Gary J. Gates's amicus brief can be found online at:

M.V. Lee Badgett, is the research director at the Williams Institute. She is also the director of the Center for Public Policy and Administration and an associate professor of economics at the University of Massachusetts-Amherst. Her book, Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men (University of Chicago Press) presents her groundbreaking work on sexual orientation discrimination and family policy. For more information on Badgett, go to

Gary J. Gates, Ph.D., is a senior research fellow at UCLA School of Law. Gates is co-author of The Gay and Lesbian Atlas and is widely acknowledged as the nation's leading expert on the demography and geography of the gay and lesbian population. For more information on Gates, go to

Marriage Equality USA (MEUSA) is a national, nonprofit organization created to secure legally recognized civil marriage equality without regard to gender identity or sexual orientation at the federal and state level. For more information, go to

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Online series looks at legal arguments in marriage case

Friends of the Court: Briefs by black groups cite equality