The California Supreme Court will decide today if barring same-sex couples from marriage violates the state’s constitution.
The Court agreed to hear the case in 2006 after the California Court of Appeal reversed a decision by San Francisco Superior Court Judge Richard A. Kramer that barring same-sex couples from marriage unconstitutionally discriminates on the basis of sex and violates the fundamental right to marry.
California has the highest number of same-sex couples of any US state.
Fifteen of them are represented by the National Centre for Lesbian Rights, Lambda Legal, the American Civil Liberties Union, Heller Ehrman LLP, and the Law Office of David C. Codell.
The cases, along with four others, were consolidated into one appeal, which is now before the Supreme Court.
Attorneys argued that California violates its own constitution by denying same-sex partners the right to marry.
“However the Court decides, the ruling will make history and have enormous impact on the movement for gay and lesbian civil rights, as well as the lives of many thousands of same-sex couples and their families across the country.” Lambda Legal said in a statement.
“It also will set the stage for a battle to protect the California Constitution from an anti-gay constitutional amendment initiative likely to appear on the November ballot.”
The Republican governor of California, Arnold Schwarzenegger, said last month he will fight against any bans on gay marriage.
He surprised delegates at the convention of the Log Cabin Republicans, the nation’s largest gay Republican group.
Mr Schwarzenegger has previously vetoed attempts to legalise gay marriage but said he will oppose a statewide vote for a constitutional ban: “I will always be there to fight against that.
“I think we need a constitutional amendment so that a foreign-born (person) can run for President, but not against gay marriage. That would be a total waste of time.”
The case currently before the California Supreme Court attracted more “friend of the court” briefs than any other case in recent memory.
Specifically, the court received 45 such briefs from 145 different organisations hoping to persuade it to decide the case in their favour.
A brief filed by the city and county of San Francisco claimed that by denying marriage to gay couples, “the state segregates them and their families from the rest of society, continuing to marginalise them.”
The brief also said that the ban “reinforces in the public mind the already entrenched inferior status of lesbians and gay men.”
San Francisco caused a stir in 2004 by issuing marriage licenses to same-sex couples, which were later voided by the state.
In 2005 Superior Court Judge Richard Kramer ruled that the ban serves no rational purpose, and that it is unconstitutional because it denies same-sex couples equality.
This ruling was later overturned by the Court of Appeal, who concluded that the ban does not violate constitutional rights, and only legislators can define the institution of marriage.
The Court of Appeal considered whether the constitution offered a fundamental right to “same-sex marriage.”
The San Francisco brief said that this goes against established precedent.
“Past courts have not treated marriage claims by interracial couples as involving the right to ‘mixed race marriage,’” it read.
The brief issued by the couples urged the court that “marriage should [not] remain exclusively heterosexual merely because it always has been so.”
Former state Assemblyman Larry Bowler, a proponent of the ban, said last year: “We fully expect the California Supreme Court to destroy marriage for a man and a women.
“At least four justices on that San Francisco bench are against the broad majority of California voters, who want marriage preserved and protected.
“The high court could deal a low blow to the voters by creating so-called same-sex marriages in late 2007 or early 2008.”