Oral Argument Set for California Same-Sex Marriage Case

I received a notification today that the California Supreme Court has set In re Marriage Cases (Case No. S14799) for oral argument. The argument will be held on Tuesday, March 4, 2008, at 9 a.m. in San Francisco—maybe we’ll be lucky and even get a live broadcast of the argument, as they did with three arguments yesterday. It will be interesting to see how the argument goes in this constitutional challenge to California’s ban on same-sex marriage. In particular, I will be interested to see whether the California Supreme Court gives any hint as to whether it intends to follow the lead of courts in New Jersey and Connecticut that have expressed doubt that the failure to extend the right to marry to same-sex couples rises to the level of a constitutional violation when an alternative status (e.g., a civil union in New Jersey and Connecticut and a domestic partnership in California) affords them substantially all of the rights and obligations of marriage. That the California Supreme Court might go in this direction is indicated by its June 20, 2007 order directing all parties in the case to submit supplemental briefs addressing the following questions:

1. What differences in legal rights or benefits and legal obligations or duties exist under current California law affecting those couples who are registered domestic partners as compared to those couples who are legally married spouses? Please list all of the current differences of which you are aware.

2. What, if any, are the minimum, constitutionally-guaranteed substantive attributes or rights that are embodied within the fundamental constitutional “right to marry” that is referred to in cases such as Perez v. Sharp (1948) 32 Cal.2d 711, 713-714? In other words, what set of substantive rights and/or obligations, if any, does a married couple possess that, because of their constitutionally protected status under the state Constitution, may not (in the absence of a compelling interest) be eliminated or abrogated by the Legislature, or by the people through the initiative process, without amending the California Constitution?

3. Do the terms “marriage” or “marry” themselves have constitutional significance under the California Constitution? Could the Legislature, consistent with the California Constitution, change the name of the legal relationship of “marriage” to some other name, assuming the legislation preserved all of the rights and obligations that are now associated with marriage?

4. Should Family Code section 308.5 – which provides that “[o]nly marriage between a man and a woman is valid or recognized in California” – be interpreted to prohibit only the recognition in California of same-sex marriages that are entered into in another state or country or does the provision also apply to and prohibit same-sex marriages entered into within California? Under the Full Faith and Credit Clause and the Privileges and Immunities Clause of the federal Constitution (U.S. Const., art. IV, secs. 1, 2, cl.1), could California recognize same-sex marriages that are entered into within California but deny such recognition to same-sex marriages that are entered into in another state? Do these federal constitutional provisions affect how Family Code section 308.5 should be interpreted?

-Anthony C. Infanti