updated 12/19/2004 3:35:50 PM ET 2004-12-19T20:35:50

After a coast-to-coast airing from family rooms to polling places, the debate over same-sex marriage returns to San Francisco, the site of an exuberant but short-lived gay wedding march.

Oral arguments begin Wednesday in a pair of lawsuits seeking to have California’s one-man, one-woman marriage law declared unconstitutional. The move would put the state on par with Massachusetts, the only state where gays and lesbians can legally wed.

The trial is the first stop in what is expected to be a yearlong odyssey that may end in the state’s highest court.

Attorney Glen Lavy, who will argue for upholding the state’s existing marriage statutes on behalf of the Alliance Defense Fund, a group opposed to gay marriage, said much is at stake because California has more same-sex couples than any other state.

“It’s a particularly powerful stronghold for them, so winning in San Francisco would be a very big deal,” he said.

Constitutional challenge
Proponents of marriage rights for same-sex couples say California presents one of the best opportunities to further their cause.

The consolidated cases were brought by the city of San Francisco and by gay advocacy groups representing a dozen same-sex couples. They were the result of San Francisco Mayor Gavin Newsom’s decision last winter to defy state law by granting marriage licenses to gays and lesbians, about 4,000 in all.

The California Supreme Court ordered San Francisco officials to stop sanctioning the marriages. But it also invited the city to request a judicial review of Newsom’s claim that the state’s ban on gay matrimony violated the civil rights of his same-sex constituents. The justices suggested they might be willing to decide that core constitutional issue, but only after it passed through the lower courts.

The plaintiffs in the case — eight lesbian couples and four gay couples — include couples who wed in San Francisco, only to see their marriages later nullified by the Supreme Court, and couples who never got the chance to marry during the short window, from mid-February to mid-March.

California’s attorney general argues that the state’s marriage law does not run afoul of the Constitution because marriage always has been understood as a union between a man and a woman.

Hoping to follow Massachusetts
Supporting that position is the Alliance Defense Fund and a second Christian legal group, Florida-based Liberty Counsel. The two groups plan to take the argument further, maintaining that same-sex couples have no basis for claiming the right to marry because the primary purpose of marriage is procreation.

In 2000, California voters approved Proposition 22, which says the state can recognize only marriages between a man and a woman. But the measure only amended a statute, not the Constitution.

The plaintiffs are relying heavily on the same argument that persuaded Massachusetts’ highest court to legalize gay marriage there this year — that prohibiting gays from marrying violates their right to equal protection under the law.

The Massachusetts Legislature later gave preliminary approval to a constitutional amendment banning gay marriage but legalizing civil unions. The measure must be approved again during the next legislative session and by voters in November 2006.

Since the California lawsuits were filed in March, gay rights advocates have had mixed success advancing similar claims in other states.

Nine challenges to marriage laws have been lodged in New York, but two trial judges have rejected the equal protection argument. Two others in Washington state reached the opposite conclusion, ruling that marriage is a fundamental right for gay men and lesbians.

Lawsuits seeking marriage rights or challenging bans on same-sex marriage also have been filed in Connecticut, Nebraska, New Jersey and Oregon. Oregon is one of 11 states that adopted constitutional bans on gay marriage during the November election. Those votes have been widely viewed as part of a backlash against Massachusetts and Newsom’s actions in San Francisco.

As with the Massachusetts Constitution, the California Constitution affords its citizens even greater rights than the U.S. Constitution, recognizing a fundamental right to “safety, happiness and privacy,” said Joe Grodin, a professor at the University of California Hastings College of the Law in San Francisco.

“The right of privacy has been interpreted to include a right of intimate association and that’s part of what’s involved here,” he said.

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