Academic

Trial courts hear CA, NY marriage equality battles

By Hunter

UPDATE: Judge dismisses challenge to wording of Prop 8. Both title and arguments included on the ballot will remain as proposed by the Secretary of State. [Link to decision]

A California trial court judge is likely to rule today in the challenges brought by both proponents and opponents of Prop 8, which would amend the state’s constitution to ban same-sex marriage. At a hearing yesterday, Judge Timothy Frawley of Sacramento Superior Court indicated that he was likely to reject the arguments of both sides and leave the language of the ballot measure as it has been proposed by the Secretary of State. Pro-SSM advocates wanted the office to cut out arguments by Prop 8 proponents that California schools would have to teach that SSM had the same validity as traditional marriage, unless voters adopted Prop 8. (See my earlier post) Anti-SSM advocates objected to the purpose of Prop 8 being phrased as “eliminating” the right of same-sex couples to marry rather than restoring or protecting traditional marriage. See details here.

Meanwhile in New York, Governor Paterson’s executive order directing state agencies to recognize out-of-state marriages of same-sex couples as valid under New York appears headed for validation as within his powers, as it certainly should.

Paterson Win On Gay Rites Looks Likely - August 8, 2008 - The New York Sun

By ABRAHAM RIESMAN, Special to the Sun | August 8, 2008

A New York Supreme Court judge seems poised to uphold Governor Paterson’s pro-gay marriage policies against an attack from a Christian legal group.

The Alliance Defense Fund has sued Mr. Paterson, claiming the governor overstepped his boundaries when he issued an executive order in May calling for state agencies to ensure recognition of same-sex unions performed legally outside of New York. Currently, such marriages cannot be legally performed in the state.

During oral arguments yesterday, Judge Lucy Billings sharply questioned the lawyer representing the group, Brian Raum.

The most heated exchange came over one of the Alliance Defense Fund’s key arguments: that the word “marriage” fundamentally means a bond between a man and a woman.

Mr. Raum argued that, if Mr. Paterson’s interpretation of New York law were to stand, “then marriage would mean nothing. It would mean whatever any foreign jurisdiction says.”

“Yes, it does mean that in New York,” Judge Billings replied. She said that there could be an exception if a certain marriage were deemed “abhorrent” but did not say gay marriages fit that definition.

Judge Billings also implied that she would rule against the Alliance Defense Fund, forcing them to appeal their case. “The petitioners, I’m sure, are headed to a higher court,” she said.

Recognition of out-of-state same-sex marriages has long been honored under New York common law. In 2006, the state’s highest court, the Court of Appeals, ruled that the state constitution does not explicitly require the recognition of gay marriages but left open the question of whether such marriages could be recognized.

The Alliance Defense Fund argues that Mr. Paterson would need a new law explicitly honoring out-of-state gay marriages in order to issue a directive like the one he made in May….

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Nan Hunter, cross posted from hunter of justice

Full post as published by Feminist Law Professors on August 08, 2008 (boomark / email).