Everyone’s Got an Opinion on Gay Marriage

In its third year, the state court litigation over California’s ban on gay marriage is still riling up a number of amici on both sides of the issue. A dozen briefs were filed by Monday’s deadline for consideration by the First District Court of Appeal, which has had the case since the San Francisco Superior Court ruled last year that the state’s current ban on same-sex marriage is unconstitutional. The state attorney general’s office is among the litigants arguing to keep marriage in California as-is — one man, one woman. The city of San Francisco and a number of same-sex couples and gay and lesbian advocacy groups are hoping that the First District upholds the lower court’s ruling in favor of allowing same-sex marriage.

In the pro-gay-marriage corner are eight amicus curiae briefs, including from the California NAACP, “more than 200? religious groups or clergy members, and a number of civil rights groups, bar associations and gay-friendly organizations.

In the other corner, the keep-the-law-as-is folk can count three amicus briefs, one from four religious organizations, another from United Families International and Family Leader Foundation, and one from a bunch of professors in the legal/political/sociological arenas.

It’s tough to choose a side for the last brief. A pro se man from Illinois submitted a brief saying he’s against same-sex marriage but for civil unions. But not the kind of two-person civil unions we see in, say, Vermont. Rather, he recommends that California recognize a new kind of civil union, for “marriage groups? of up to seven people of the same gender — but including at least one person of the opposite gender.

If he doesn’t win over the appeals court, the Illinois guy should at least get points for originality. While many of the amici rehash or elaborate on ideas that were already batted about at the trial level — like whether the state’s real interest in marriage is procreation — his argument appears to be a fresh-out-of-the-box new one.

Pam Smith

(Click “read the rest? for a list of the briefs and links to .pdf versions.)


Pro Gay Marriage:

  • California NAACP (.pdf)
  • “More than 200? religious organizations or clergy (.pdf)
  • Asian/Pacific Islander groups (.pdf)
  • Civil rights groups and bar associations (.pdf)
  • Law professors and others (.pdf)
  • Bay Area Lawyers for Individual Freedom and other LGBT-friendly groups (.pdf)
  • Groups that fight sex discrimination (.pdf)
  • Other groups that fight for the rights of LGBT people or their kids (.pdf).

Opposing Gay Marriage:

  • four religious organizations (.pdf)
  • United Families International and Family Leader Foundation (.pdf)
  • Professors in the legal/political/sociological arenas (.pdf).


  • Sorry — the Illinois pro se‘s brief doesn’t appear to be online, either.



One Response to “Everyone’s Got an Opinion on Gay Marriage”

  1. confidentialservices Says:

    In section 300 of the California Family Code, I read that a Marriage is a personal relationship arising out of a civil contract between a man and a woman, to which the consent of the
    parties capable of making that contract is necessary. As I see it, if the phrase between a man and a woman is removed, then the entire definition of a Marriage becomes a personal relationship arising out of a civil contract, to which the consent of the parties capable of making that contract is necissary. I admit that its not a very good definition, but its the best that California law seems to provide. Analyzing the results of the change with my non attorney language skills, I notice that the last part of the definition says that the contract can only be entered into by parties capable of entering into that contract. Unless I’m missing some significance that phrase is not worth inserting because any contract can only be entered into by parties capable of entering into the particular contract. After removing that excess verbage, I seem to be left the term marriage being defined as “A personal relationship arising out of a civil contract.” Couldn’t it be said that personal relationships arise out of every civil contract e.g. business partners? It seems to me that to remove the requirement of the parties to a Marriage being a man and a woman would effectively detete the word from our legal lexicon. The California family code already has provisions for equal treatment of other personal relationships based on the intimacy that Marriage traditionally solemnizes, called Domestic Partnerships, which expressly exclude opposite sex couples unless one is over 62 years old. In my view, if the specification of opposite genders as a requirement for Marriage is unconstitutional based on the 14th amendment, then it follows that 297 (a) et. seq. of the California Family Code must also be unconstitutional on the same basis, and both Marriages and Domestic Partnerships should be halted, and couples desiring a civil union should simply enter into a civil contract specifying the terms of the relationship that they desire, having the same force and effect as any other civil contract.

    I think a better alternative to legal battles over the nature of marriage would be to institute laws in each state recognizing domestic partnerships, and giving them respect equal to that given marriages under the law.

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