Brief explainer
What's the document behind Mayor Sanders' change of heart?
By Kelly Davis
Confused by why Mayor Jerry Sanders publicly announced last week that he supports same-sex marriages? At least one TV news reporter was, initially reporting that Sanders had signed a bill to allow same-sex marriage in San Diego.
Not quite. The mayor, a Republican who in the past has pledged support for same-sex civil unions but not marriage, changed his position and signed a resolution that allowed San Diego to join 19 other California cities and counties in collectively submitting a legal document known as an amicus curiae, or "friend of the court," brief in a state Supreme Court case.
Amicus briefs are filed by individuals or groups who are not party to a lawsuit but believe they have a stake in the outcome of a case. The goal of a good amicus brief, said David Blair-Loy, legal director for the San Diego/Imperial Counties chapter of the American Civil Liberties Union, is to amplify a key issue in a case or "provide information to the court... that might not have been covered by the parties.
"You have the luxury of not having to raise all the other issues in the case," he said.
The case San Diego signed on to support, called In Re: Marriage Cases, is one that's worked its way up from a San Francisco superior court to the state Supreme Court. It's a consolidation of cases filed in 2004 on behalf of 20 gay and lesbian couples who want to be legally married in California. The city of San Francisco, which three years ago attempted to marry same-sex couples, is also party to the case.
In 2005, a San Francisco judge ruled in favor of the couples, agreeing that California's narrow definition of what constitutes marriage is discriminatory. The state Attorney General's office appealed that ruling and won. That kicked the case up to the state's highest court, which will hear arguments within the next few months.
While more than 250 religious, civil-rights and legal organizations filed amicus briefs in the appeals-court case, the Supreme Court hearing will be the first in which local governments have submitted a brief--all 19 signed on to a single document authored by West Hollywood Deputy City Attorney J. Stephen Lewis.
"It gives the California Supreme Court a sense of where are the local governments, where are the people," said Blair-Loy about the brief's significance. "It's useful for the court to see who is on what side of the issue."
The 54-page local-government amicus brief largely takes issue with an argument made by former state Attorney General Bill Lockyer in the appeals-court case. "The word ‘marriage,'" Lockyer argued, "has a particular meaning for millions of Californians, and that common understanding of marriage is important to them." The local-government brief counters that it's animosity towards gays and lesbians "and a desire to enshrine in law a popular view of them as lesser citizens" that drives marriage exclusivity. This puts local governments in a bind, the brief argues, because it's their obligation to treat all citizens equally. Furthermore, the brief says, there's no legitimate government interest in prohibiting same-sex marriage.
Opponents of same-sex marriage, however, continue to argue that there's popular interest in limiting marriage rights, and they cite the 2000 ballot initiative, Prop. 22. Most people think Prop. 22 banned same-sex marriage in California. It didn't. Three decades ago, the state Legislature passed a law that limited marriage in California to a union between a man and a woman. Prop. 22 "didn't do anything regarding the definition of marriage," said Geoff Kors, executive director of Equality California, a gay-rights group. "What it did, and what the proponents specifically requested that it did, was say that California won't be required to recognize marriages between lesbian and gay couples from other states and countries, because that was the concern."
Prop. 22, authored by a state Senator from Palmdale who was 70 at the time, won support of 61.4 percent of California voters and 62 percent of San Diego County voters and is still used as evidence of public opposition to same-sex marriage. But Kors points to a September 2006 survey conducted by the Public Policy Institute of California that found that among likely voters statewide, 47 percent supported same-sex marriage and 46 percent opposed it. "It's a dead heat," Kors said.
A Field Poll conducted earlier this year found that with each generation, Californians become more accepting of same-sex marriage. Of those born in the 1940s, only 40 percent support same-sex marriage. Among people born in the 1970s, 51 percent support it, and of those born in the 1980s, 58 percent support same-sex marriage. Next year's election introduces a new decade of voters: those born in the first year of the 1990s.
Write to kellyd@sdcitybeat.com and editor@sdcitybeat.com.
Published: 09/26/2007
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