by Anthony Glassman

San Francisco--An apparently divided California Supreme Court heard arguments on March 4 on whether same-sex couples have the right to marry, or if the broad benefits they enjoy under the state?s domestic partner laws satisfies equal protection requirements.

The city of San Francisco and 23 couples challenged the constitutionality of the state?s ban on same-sex marriages after the Supreme Court annulled weddings performed in San Francisco in 2004. Mayor Gavin Newsom had ordered city clerks to grant marriage licenses to same-sex couples following George W. Bush?s call in the State of the Union address for federal marriage ban amendment.

However, when the court annulled the marriages, it did not decide on the legality of the state?s ban on them.

An attorney for the state told the justices that the domestic partnership laws grants virtually all of the state rights and benefits of marriage to couples, same as marriage.

Deputy Attorney General Christopher Krueger claimed the right of the state to adhere to the ?common and traditional basis of marriage,? reported the San Francisco Chronicle, while also ?providing all the rights and benefits associated with marriage.?

That brought critical responses from three of the justices.

Justice Carlos Moreno asked him, ?Are you saying that separate is equal here??

Chief Justice Ronald George noted that laws barring interracial marriage were considered ?traditional? before being thrown out by the California high court in 1948, the first such ruling in the nation.

Justice Joyce Kennard also pointed to the ?tradition? of treating a wife as the property of her husband.

Chief Deputy City Attorney Therese Steward told the justices that the status of full marriage ?conveys loyalty and intimacy and commitment.?

Three other justices said that redrawing the lines of marriage in this instance was a role for legislators and the people of the state.

In 2000, voters approved Proposition 22, which defined marriage as an opposite-sex institution. Since then, however, lawmakers have twice passed measures that would implement full same-sex marriage. Both bills were vetoed by Gov. Arnold Schwarzenegger, who cited Proposition 22 and punted the issue to the courts.

Justices Carol Corrigan, Ming Chin and Marvin Baxter all questioned whether it was for the ?court to decide, or is it for the people of California to decide?? in the words of Justice Corrigan.

The presumptive swing vote, Justice Kathryn Mickle Werdegar, asked, ?Why is this the moment of truth, as opposed to ten years from now??

Corrigan, though, was also critical of arguments put forward by Glen Lavy, an attorney for the Proposition 22 Legal Defense and Education Fund. Lavy said the marriage was the state?s way of regulating procreation by couples.

The justice pointed out that his rationale would allow the state to ban marriages between opposite-sex couples who would not, or could not, have children.

Lavy also made the pedantic argument that gay men and lesbians are not discriminated against by the law because they can get married--just not to a member of the same sex.

?The are allowed to marry, but they are not allowed to form a same-sex couple and call it marriage,? he said.

?Words matter. Names matter,? countered Stewart.

The court must rule within 90 days, by Monday, June 2.