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California gay marriage battle turns to court role

Tue Jan 6, 2009 2:46am GMT

By Peter Henderson

SAN FRANCISCO (Reuters) - The legal battle over gay marriage in California turned on Monday to whether the state's top court could strike down a change in the state constitution that was approved by voters.

Gay marriage opponents said overturning a same-sex marriage ban would change the nature of California government by gutting the people's right to make law.

Giving such power to the court would create "a sweeping power vested in the least-democratic branch that overrides the precious right of the people to determine how they will be governed," they said in court papers filed on Monday.

"It is essentially changing the constitution-making function from the people to the courts," lawyer Andrew Pugno, a supporter of Proposition 8, which defines marriage as between a man and a woman, said by telephone.

Gay marriage proponents, led by California Attorney General Jerry Brown, argue that the right to marry is part of the "inalienable right" to liberty, so the state Supreme Court must strike down even an amendment to the constitution limiting it.

State voters approved Prop 8 on November 4, removing California from the short list of U.S. states, Canadian provinces and mostly European countries allowing same-sex unions.

The vote in California, which had begun allowing gay marriage only months earlier, sparked protests across the United States, even though a solid majority of states have outlawed same-sex marriage.

California often sets socially liberal precedents for the rest of the United States, but many of its residents have a fundamentalist democratic, anti-government bent. Citizens have wide latitude to change laws and the state constitution directly via popular vote -- which was the case with the gay marriage ban.

The ban was approved by 52 percent of voters. Brown says that, unless there is a compelling societal need, the court must safeguard liberty first and foremost. Lawyers backing the ban, he said, want "to say that a fundamental liberty is only fundamental until 52 percent of the people say otherwise."

The court, which in a summer 2008 opinion opened the door to same-sex marriage -- until the ban was passed in November -- is expected to hear oral arguments in March.

(Reporting by Peter Henderson, Editing by Patricia Zengerle)

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Anti-gay marriage group steps up for Prop. 8

Tuesday, November 11, 2008

(11-10) 16:48 PST SAN FRANCISCO -- A group opposed to same-sex marriage wants to help defend Proposition 8 before the California Supreme Court, saying lawsuits seeking to overturn the Nov. 4 ballot measure threaten the initiative process.

Three suits filed the day after the election open the door to "step-by-step elimination of the people's right to amend the Constitution by initiative," attorneys with Liberty Counsel said Monday in papers submitted on behalf of the Campaign for California Families.

They said Attorney General Jerry Brown's office, which plans to defend Prop. 8 in court, represents only the interests of state officials in "furnishing marriage license forms" and enforcing the law and can't adequately speak for the voters who backed the measure.

Prop. 8, which passed with 52 percent of the vote, amends the state Constitution to allow marriage only between a man and a woman. It would overturn a state Supreme Court ruling on May 15 that granted same-sex couples a constitutional right to marry.

It is being challenged by two groups of same-sex couples, gay-rights advocates and local governments led by the city of San Francisco. They contend Prop. 8 violates fundamental rights of equality and interferes with the judiciary's constitutional duty to protect minorities. Two of the suits argue that the measure amounts to a revision of the state Constitution, which can be placed on the ballot only by a two-thirds vote of the Legislature.

Calling the suits "patently frivolous," Liberty Counsel founder Mathew Staver said in a statement Monday that "it makes no sense that four judges can rewrite the historic definition of marriage and more than 5 million people (who voted for Prop. 8) cannot restore it to its common understanding."

The state Supreme Court has not yet said whether it will accept the suits for review and grant the plaintiffs' request to block enforcement of Prop. 8, an order that would allow gay and lesbian couples to marry while the case was pending. The justices could also address the validity of an estimated 18,000 same-sex marriages that were conducted before the election.

The Campaign for California Families, a conservative religious organization, is asking to intervene in the case and take part in any hearings the court holds. The group that sponsored Prop. 8, Protect Marriage, has said it will also seek to intervene. If the court denies the requests, the groups could still submit written arguments.

A similar question arose earlier this year when the court was reviewing state laws prohibiting same-sex marriage. The court allowed the same two organizations to take part in oral arguments, where they contended the laws were valid because children are better off with opposite-sex parents. The state did not make that argument, and none of the justices writing majority and dissenting opinions in the case endorsed it.

The court eventually decided that the conservative groups were not proper parties to the case because their rights were not at stake. In the new filing, however, the Campaign for California Families argues that it has a right to defend the ballot measure that it helped to pass.

"None of the (state officials sued in the case) has the same interests that the campaign and its members have in preserving the people's will as expressed in Proposition 8," the group's lawyers said.

The lead case is Strauss vs. Horton, S168047.

 

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Prop. 8 repercussions hit Sacramento theater

3:09 PM, November 11, 2008
Los Angeles Times.com

The blowback from last Tuesday's passage of Prop. 8, which prohibits same-sex marriage in California, has hit the California Musical Theatre, a major nonprofit stage company in Sacramento, following the revelation via the Web that its artistic director gave $1,000 to back the state constitutional amendment.

Among those weighing in with dismay over Scott Eckern's donation are Tony winners Jeff Whitty, who wrote the book for "Avenue Q," and Marc Shaiman, composer and co-lyricist of "Hairspray." Shaiman said Tuesday that he phoned Eckern on Friday to protest, then e-mailed more than 1,000 contacts to alert them about the donation.Marc Shaiman, composer of Hairspray

"Of course it's his right to donate the money," said Shaiman, who was disappointed that Eckern, a California Musical Theatre employee since 1984 and its artistic director since 2003, had benefited from last season's touring production of "Hairspray," then piped money to a cause the L.A.-based Shaiman deplores. In their conversation, Shaiman said, "he basically gave me that thing we're just sick of hearing -- 'these are my religious beliefs, but it's nothing personal' " against gay people. "I don't want to hear that anymore. I just told him I'm disgusted at that use of money that came in some way from a show I created." (Update: The “Hairspray” production at California Musical Theatre last August was not a touring production, but one mounted by CMT itself. A touring version of “Hairspray” was seen at the theater in 2004.)

Whitty, whose "Avenue Q" is scheduled to play the Sacramento theater in March, was among those alerted by Shaiman's e-mail. On Monday,  he wrote in his whitless.com blog that "like Marc, I'll work to prevent CMT from producing any of my future shows with Mr. Eckern at the helm. To me, he's one of those hypocrites who profits from the contributions of gays ... but thinks of us as ultimately damned."

Jeff Whitty winning a Tony award for Avenue Q But today, despite wanting to "make an example of somebody," Whitty blogged that he reversed his stance on a boycott, writing that Eckern had given him a "convincing and sincere apology" and didn't deserve to be targeted for more censure. Whitty said he would "look forward to working with the California Musical Theatre in the future."

Shaiman said he would keep pushing for public acknowledgment and redress that would not damage the theater for one individual's political views but would make it clear that anti-gay views won't be accepted in the theater community. A benefit event at California Musical Theatre might be appropriate, he said, allowing backers of gay marriage an artistic platform while raising money to help mount a legal appeal to overturn Prop. 8.

In any case, Shaiman said, the response should be measured. When told that Eckern's donation had been posted on a website called antigayblacklist.com that calls for a boycott against businesses and professionals who backed Prop. 8 -- including some public school teachers -- the composer, who also writes film music, questioned using the word "blacklist," the term for the exclusion of artists in 1950s Hollywood for having suspected Communist leanings. "We have to watch ourselves and not become what we're fighting against," he said.   

Eckern released a statement today apologizing "for any harm or injury" caused by his donation. He said he would donate $1,000 -- commensurate to what he gave Prop. 8 backers -- to the Human Rights Campaign, a group that supports equal rights for gays and lesbians. .

After talking with many friends and colleagues, he said, "I have a better idea ... how deeply felt these issues are, and I am deeply saddened that my acting upon my religious convictions has been devastating to those I love and admire." He noted that his sister, a lesbian, is in a domestic partnership relationship.

Richard Lewis, the executive producer whose family founded California Musical Theatre decades ago, said Eckern's views were his own, not the theater's, and affirmed "appreciation ... for the [lesbian, gay, bisexual, transgender] community who have played a crucial role in our success." A torrent of e-mails and calls protesting Eckern's donation began on Friday and has continued, said Lewis, who likened the  blowup to when Los Angeles Dodgers executive Al Campanis questioned on national television whether black ballplayers had the right stuff to be successful baseball managers.

"We're looking at the magnitude of the situation and need to discuss whether we take any action.... We don't want to rush into things and do something foolish," Lewis added. "We just put the initial statement out there: 'Don't punish the theater for what Scott chose to do.' "

The theater, which presents touring Broadway shows and produces its own summer musical festival of seven shows, hiring scores of actors and designers who commonly work in New York, has no policy against employees being politically active or making political contributions, Lewis said. He dismissed the notion that Eckern could be fired for backing Prop. 8 or that it would be allowable under California employment law.

-- Mike Boehm

Photos: Marc Shaiman, top; Jeff Whitty, with Tony Award

Photo credits: Shaiman, Al Seib / Los Angeles Times; Whitty, Jeff Christensen / Reuters

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=====================
California Supreme Court overturns gay marriage ban

In a 4-3 decision, the justices rule that people have a fundamental 'right to marry' the person of their choice and that gender restrictions violate the state Constitution's equal protection guarantee
By Maura Dolan, Los Angeles Times Staff Writer
May 16, 2008
SAN FRANCISCO -- -- The California Supreme Court struck down the state's ban on same-sex marriage Thursday in a broadly worded decision that would invalidate virtually any law that discriminates on the basis of sexual orientation.

The 4-3 ruling declared that the state Constitution protects a fundamental "right to marry" that extends equally to same-sex couples. It tossed a highly emotional issue into the election year while opening the way for tens of thousands of gay people to wed in California, starting as early as mid-June.

The majority opinion, by Chief Justice Ronald M. George, declared that any law that discriminates on the basis of sexual orientation will from this point on be constitutionally suspect in California in the same way as laws that discriminate by race or gender, making the state's high court the first in the nation to adopt such a stringent standard.

The decision was a bold surprise from a moderately conservative, Republican-dominated court that legal scholars have long dubbed "cautious," and experts said it was likely to influence other courts around the country.

But the scope of the court's decision could be thrown into question by an initiative already heading toward the November ballot. The initiative would amend the state Constitution to prohibit same-sex unions.
The campaign over that measure began within minutes of the decision. The state's Catholic bishops and other opponents of same-sex marriage denounced the court's ruling. But Gov. Arnold Schwarzenegger, who previously has vetoed two bills in favor of gay marriage, issued a statement saying he "respects" the decision and "will not support an amendment to the constitution that would overturn" it.

The ruling was greeted with loud cheering and whooping when it was released at the high court's headquarters here Thursday morning. About 100 people lined up outside to purchase copies of the decision for $10 apiece. Some people bought 10 to 15 copies, calling it a historic document. One man said he planned to give them out as Christmas presents.

Gay groups planned celebrations up and down the state.

"I can finally say I will be able to marry John, the man that I love," said Stuart Gaffney, one of the plaintiffs in the case, referring to his partner of 21 years, John Lewis. "Today is the happiest and most romantic day of our lives."

Conservative and religious-affiliated groups denounced the decision and pledged to bring enough voters to the polls in November to overturn it. Mathew Staver, founder of Liberty Counsel, called the decision "outrageous" and "nonsense."

"No matter how you stretch California's Constitution, you cannot find anywhere in its text, its history or tradition that now, after so many years, it magically protects what most societies condemn," Staver said.

The decision came after high courts in New York, Washington and New Jersey refused to extend marriage rights to gay couples. Only Massachusetts' top court has ruled in favor of permitting gays to wed.

The court's ruling repeatedly invoked the words "respect and dignity" and framed the marriage question as one that deeply affected not just couples but also their children. California has more than 100,000 households headed by gay couples, about a quarter with children, according to 2000 census data.

"Our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation," George wrote for the majority. "An individual's sexual orientation -- like a person's race or gender -- does not constitute a legitimate basis upon which to deny or withhold legal rights."

Many gay Californians said that even the state's broadly worded domestic partnership law provided only a second-class substitute for marriage. The court agreed.

Giving a different name, such as "domestic partnership," to the "official family relationship" of same-sex couples imposes "appreciable harm" both on the couples and their children, the court said.

The distinction might cast "doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples," George wrote, joined by Justices Joyce L. Kennard, Kathryn Mickle Werdegar and Carlos R. Moreno. All but Moreno were appointed by Republican governors. George was appointed by Gov. Pete Wilson in 1991.

The ruling cited a 60-year-old precedent that struck down a ban on interracial marriage in California.

The three dissenting justices argued that it was up to the electorate or the Legislature to decide whether gays should be permitted to marry.

In 2000, 61% of California voters approved a ballot measure, Proposition 22, that said "only marriage between a man and a woman is valid and recognized in California."

Since then, the Legislature has passed one of the strongest domestic partnership laws in the country, giving registered same-sex couples most of the rights of married people.

"In my view, California should allow our gay and lesbian neighbors to call their unions marriage," Justice Carol A. Corrigan wrote in the first sentence of her dissent.

"But I, and this court, must acknowledge that a majority of Californians hold a different view and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not."

Justice Marvin R. Baxter, joined by Justice Ming W. Chin, said the ruling "creates the opportunity for further judicial extension of this perceived constitutional right into dangerous territory."

"Who can say that in 10, 15 or 20 years, an activist court might not rely on the majority's analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?" Baxter wrote.

The decision takes effect in 30 days. Gay couples would then be permitted to marry in California, even if they do not live in the state, gay rights lawyers said. Under federal law, however, other states would not have to recognize those marriages as valid. And same-sex couples would remain ineligible for certain federal benefits, including Social Security benefits for spouses and joint filing for income taxes.

Lawyers on both sides of the debate said they were uncertain how a victory for the proposed November initiative -- which both sides predict will qualify for the ballot -- would affect gay couples who marry during the next several months.

University of Santa Clara law professor Gerald Uelmen, who has closely followed the state high court for decades, said he was "blown away" and "very surprised" by the ruling.

"The court is exerting some leadership here, and I think it needs to be said that it is a new role for the court," Uelmen said.

"This has not been a court that has been willing to stick its neck out and lead the way on cutting-edge issues like this that involve such strong political feelings."

Uelmen said the court's vote probably reflected the fact that a growing number of Californians favor marriage for gay couples. He noted the case attracted a record number of friend-of-the-court briefs, most of them in favor of same-sex marriage.

Although critics of the ruling, including the dissenters, argued the court should have waited for the voters to decide the question of same-sex marriage, "the majority is not always supposed to have its way" in constitutional democracies, said University of Pennsylvania constitutional law professor Kermit Roosevelt, one of many legal scholars who weighed in on the case Thursday.

Roosevelt predicted more states would follow California's example and that the U.S. Supreme Court would eventually rule in favor of same-sex marriage.

"That decision will come at the end of a process that is now just beginning," Roosevelt said. He predicted it would follow the pattern of state courts that struck down laws banning interracial marriage decades ago.

The decision followed several recent rulings by the state high court recognizing the rights of same-sex parents, including those not biologically related to their children. The children in those families figured prominently in the court's reasoning in those cases.

The road to Thursday's ruling began with San Francisco's highly publicized same-sex weddings, which in 2004 helped spur a conservative backlash in an election year and a national dialogue over gay rights.

Several states later passed constitutional amendments banning gay marriage, and same-sex marriage became an issue in the race for president.

After a month of jubilant gay weddings here, the California Supreme Court intervened and ordered the city to stop issuing licenses to same-sex couples.

The state high court later invalidated the licenses, saying the city should have waited for a judicial ruling before acting.

The plan by San Francisco Mayor Gavin Newsom, City Atty. Dennis Herrera and gay rights lawyers to challenge state law by marrying same-sex couples was carefully drawn.

City officials chose the first couples to wed, hoping their long unions and sympathetic stories would put a face on same-sex marriage that courts would find difficult to reject. The city also decided to begin the weddings on a day when courts were closed to deprive opponents of quick legal intervention. One of the first couples to wed has since separated.

The long parade of weddings at City Hall -- across the street from the California Supreme Court -- provided a dramatic backdrop for the gay rights debate.

As the issue moved into the high court, Brad Sears, executive director of the Williams Institute at UCLA's law school, which examines sexual orientation and the law, said the state's broad domestic partner law had undercut the traditional argument that children were better off being raised by opposite-sex parents.

"Taking those issues off the table, which the domestic partners act did, might have made this an easier case for everyone," Sears said. Once the state recognized the right of gays to rear children, the fight for same-sex marriage was shaped as "the right to have a family" and the ruling became "about family being protected."

The court concluded that giving gays a separate institution -- domestic partnership -- "marked gays and lesbians as second-class citizens," Sears said.

The Massachusetts high court ruling that permitted gays there to marry did not give sexual orientation the same kind of constitutional protection that Thursday's decision did, nor was the Massachusetts ruling as explicit in stating that marriage licenses must be given to same-sex couples in the immediate future, legal analysts said.

Sears said recent polls show that Californians are divided over same-sex marriage. Forty-three percent of Californians supported gay marriage in a Field Poll taken a year ago.

He added that the issue was likely to affect the political debate even outside California.

"It is going to give some new teeth to an issue that was losing its potency in terms of being a wedge issue," Sears said.

Times staff writers Patrick McGreevy in Sacramento, Rong-Gong Lin II, Jean-Paul Renaud, Francisco Vara-Orta, Molly Hennessy-Fiske in Los Angeles and John M. Glionna and Lee Romney in San Francisco contributed to this report.

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Gay revelers celebrate pride, marriage rights

SAN FRANCISCO (AP) — A lesbian motorcycle group dressed in bridal veils, wedding gowns and leather lent a matrimonial touch to San Francisco's gay pride parade Sunday as revelers celebrated their newfound freedom to marry.

The riders tossed bouquets as they led the city's 38th annual gay pride parade down Market Street. Some of the motorcycles were adorned with signs that read "Just Married."

Huge crowds lined the route as city tourism officials predicted the largest turnout yet for the parade, which typically draws tens of thousands.

The county clerk's office was busy Friday handing out marriage licenses and handling wedding ceremonies. Same-sex marriage has been legal in California since June 16, after a state Supreme Court decision.

San Francisco Mayor Gavin Newsom received ovations along the parade route for his role in working to overturn the state's gay marriage ban.

Though City Hall was closed Sunday, parade organizers put up a wedding pavilion across the street where couples could get information about tying the knot or celebrate newly sanctioned unions.

Wade French, 51, and his partner, Brent Lok, 54, wed in San Francisco the day after the court's decision took effect. At the parade, Lok wore a T-shirt reading "Finally married..." while French's shirt read "after 30 years together."

"We always come to the parade, but this year is a different feeling because we're celebrating something that's personal to us," Lok said.

The couple said they were asking friends and family not to send wedding gifts and instead make donations to a nonprofit group working to fight a ballot measure that would once again ban gay marriage in the state.

In a taped interview Sunday morning on NBC's "Meet the Press," Gov. Arnold Schwarzenegger called the measure "a waste of time."

"I personally believe that marriage should be between a man and a woman," Schwarzenegger said. "But at the same time I think that my, you know, belief, I don't want to force on anyone else."

The initiative set to go before voters in November would provide that "only marriage between a man and a woman is valid or recognized in California." Its language was taken directly from a gay marriage ban enacted by voters in 2000, one of two the state Supreme Court found unconstitutional and struck down on May 15.

Julie Kendall, 59, walked with her partner of 23 years, Melinda Kendall, 50, holding a sign that read, "We're here, we're queer and we're registered at Macy's."

Though both women were grinning, they said they were worried voters might pass the ballot initiative.

"I'm calling and e-mailing my friends urging them to get involved in the campaign. I'm reminding them this is a civil rights issue," Julie Kendall said.

The pair first wed in 2004 when Newsom ordered the city to begin issuing licenses to same-sex couples in defiance of state law. The state Supreme Court later nullified those marriages. The couple said they got a new marriage license and plan to wed next month.

In New York City, residents cheered Gov. David Paterson as he joined the city's annual gay pride march a month after he directed state agencies to provide full marriage benefits to same-sex couples who were legally married elsewhere.

Jim Saslow carried a bouquet to the march down Manhattan's Fifth Avenue and wore a wedding gown stamped with the words, "Coming Here Soon?"

"Everyone here is thinking if California can do it then we should be able to do it here soon," he said.

Overseas, gay pride marches in the Bulgarian capital of Sofia and the Czech Republic city of Brno came under attack Saturday by extremists who threw rocks and eggs. No serious injuries were reported.

In Paris, more than half a million people celebrated in the streets below a river of rainbow flags.

In India, hundreds chanted for gay rights in Calcutta, Bangalore and New Delhi in the largest display of gay pride in the deeply conservative country, where homosexual acts are illegal. The marches came days before the Delhi High Court is expected to hear arguments on overturning a law against homosexual sex that dates to the British colonial era.

Associated Press writers Sam Dolnick in New Delhi and Karen Matthews in New York contributed to this report.

McCain Supports Efforts to Ban Gay Marriage

The GOP candidate speaks out against same-sex unions in California

By Justin Ewers
Posted June 27, 2008

SAN FRANCISCO—After several weeks of silence on the issue of same-sex marriage, Sen. John McCain has made it official. The presumptive Republican nominee for president has endorsed efforts to ban gay marriage in California.

McCain sent this short statement to the Protect Marriage campaign, one of the conservative groups spearheading an effort to amend the state Constitution in November and define marriage as between a man and a woman:

"I support the efforts of the people of California to recognize marriage as a unique institution between a man and a woman, just as we did in my home state of Arizona. I do not believe judges should be making these decisions."

McCain's stance on same-sex marriage comes as no surprise to political analysts, since he has never varied widely from the mainstream of the Republican Party on the issue. While McCain voted against a federal constitutional amendment supported by President Bush in 2004, he has said he thinks states should be able to determine their own approaches to marriage—and he has repeatedly said the matter should be left to voters, not judges, to decide. In 2006, McCain supported a failed initiative in Arizona, his home state, that would have amended the state Constitution and banned same-sex marriage. Another effort to place a constitutional ban on the Arizona ballot this fall was defeated in the state Senate this week.

Many experts believe the timing of McCain's announcement is no accident. Earlier this week, James Dobson, the founder of the conservative group Focus on the Family, railed against both Barack Obama and McCain on his radio show, saying he was disappointed that the likely Republican nominee, in particular, had not been muscular enough on an issue that is dear to the hearts of evangelical Christians.

Most of Dobson's ire was directed at Obama, the Democratic presidential nominee, who Dobson said was "deliberately distorting the traditional understanding of the Bible to fit his own world view." Still, Dobson had harsh words for McCain as well, complaining that the Arizona senator has not done enough in his home state to convince voters to ban same-sex marriage. "That is very disappointing," Dobson said. Neither candidate, Dobson declared, "give[s] a hoot about the family."

Obama, who does not support gay marriage but believes same-sex couples should be allowed to enter into civil unions, has not yet taken a position on the California initiative.

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