California judge opens hearing on same-sex suits

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From combined dispatches

SAN FRANCISCO -- Ten months after San Francisco's mayor defiantly granted "marriage" licenses to thousands of homosexual couples, a state judge began hearing arguments yesterday in a pair of lawsuits that seek to have California's matrimony law declared unconstitutional.

Superior Court Judge Richard Kramer's courtroom is only the first stop in what is expected to be a yearlong odyssey that ultimately could reach the state's highest court.

The consolidated cases were brought by the city of San Francisco and homosexual advocacy groups representing a dozen same-sex couples. Only Massachusetts allows homosexuals to "marry."

"The assertion that marriage is inherently heterosexual can no longer be maintained, now that there are a number of jurisdictions that allow same-sex couples to marry," Shannon Minter, legal director for the National Center for Lesbian Rights, said in a packed courtroom.

Representing the Alliance Defense Fund, one of two Christian legal groups that oppose homosexual "marriage," lawyer Glen Lavy argued it was in the state's interest to promote marriage as the ideal environment for raising children.

"The state does not recognize marriage to give a welfare benefit to loving committed couples," Mr. Lavy said. "The fundamental right to marry has always been about procreation."

In court papers, the state government had maintained that what the state already has done in advancing homosexual rights is sufficient to ward off a constitutional challenge.

"This is not a state like other states, where rights have been denied same-sex couples," senior Assistant Attorney General Louis Mauro said. "The issue is whether it's unconstitutional to provide those rights and benefits without calling it marriage."

The state also contends that if Californians want to redefine marriage, the way to do it is through the Legislature or a ballot proposition, not the courts.

"If the judge decides the case for the city, it will ignite a huge movement toward a state constitutional amendment," Alliance Defense Fund lawyer Benjamin Bull said. "It's going to happen, and it will pass."

At issue is a 1977 amendment to the California Family Code that defined marriage as "a personal relation arising out of a civil contract between a man and a woman."

The homosexual groups charge that defining marriage as between a man and a woman flouted the liberal state's constitution by discriminating against residents on the basis of sexual orientation.

The lawsuits are an outgrowth of San Francisco Mayor Gavin Newsom's decision last winter to openly challenge state law by granting "marriage" licenses to homosexuals, about 4,000 couples in all.

In her arguments, Miss Minter listed Massachusetts, Canada, Belgium and South Africa as among the places where homosexuals can "marry."

The judge said he would rule sometime after mid-January.

In August, the California Supreme Court dealt the 4,000 "married" couples a blow when it declared their unions null and void because the city had exceeded its powers.

"The same-sex marriages authorized by the officials are void and of no legal effect," the judges said, ruling that until the state acknowledges same-sex "marriages," no city official could sanction them.

That left the way open for proponents of homosexual "marriage" to pursue the constitutionality of the existing laws.