JURIST Guest Columnist Douglas NeJaime of UCLA School of Law says that in the California marriage case the state's lawyers are attempting a difficult balancing act between an increasingly institutionalized pro-gay perspective held by those at the highest level of state government and the state’s own marriage restriction, itself a remnant of ideas that have been displaced by these new pro-gay principles…

It might be easy to view the marriage equality case heard by the California Supreme Court last week as just another in a long string of similar challenges across the US. After all, we’ve seen this show many times before, from New England and the Mid-Atlantic to the Midwest and the West Coast. This case, however, differs in a significant way that might suggest an emerging trajectory for marriage challenges: procreation and parenting were barely mentioned until a whole three hours into the oral argument. It took the presentations of private social conservative advocacy groups to put arguments based on procreation and childrearing before the court.

The California marriage dispute represents the consolidation of six separate cases — three challenges by same-sex couples to the denial of marriage licenses, a suit by the city and county of San Francisco challenging the state’s marriage restriction, and two actions by groups seeking declarations that California’s marriage laws are constitutional. While the legal standing of social conservative groups Proposition 22 Legal Defense and Education Fund and the Campaign for California Families served as a significant side issue at the trial and appellate levels, all the interested parties eventually made their way to the California Supreme Court, where four attorneys argued for the petitioners — those seeking the right to marry for same-sex couples — and four attorneys argued for the respondents — those defending the state’s restriction.

The California Deputy Attorney General, Christopher Krueger, barely uttered “May it please the Court,” before Justice Kennard noted at length that the petitioners presented a fairly unified front, while those in favor of the respondents were in seeming disarray. Justice Kennard distinguished between “the state entities,” which included the Attorney General’s office and Governor Schwarzenegger’s attorney, and “the private entities,” which included Proposition 22 Legal Defense and Education Fund and the Campaign for California Families.

As Justice Kennard and her colleagues probed further, we learned that the state entities were willing to submit three main arguments in favor of the state’s marriage restriction: tradition, legislative primacy, and the will of the people. The state entities were not willing to argue that the marriage restriction is reasonable to further responsible procreation, to provide an optimum environment for rearing children, or to protect or promote marriage between different-sex couples. And now we arrive at the exact reason that the private entities clung so fiercely to a place in the litigation — to put before the court arguments that they saw as justifying the restriction on marriage yet not advanced by the state’s attorneys.

Exposing these divergent positions appeared to undermine the state’s position on multiple levels. The private entities presented arguments that even the most conservative justices found specious, including, for instance, the notion that the marriage restriction is necessary to ensure integration of the sexes. The private entities also presented a view of marriage as a universal, invaluable status and as vital to families and children. This stood in stark contrast to the state’s attempt to minimize the symbolic differences between marriage and domestic partnership. Indeed, after the Campaign for California Families’ presentation on the significance of marriage, Justice Chin, half in jest, asked the San Francisco Deputy City Attorney, “Did he just make your argument for you?” More interesting than these various moments in the argument and what they might mean for the court’s decision, though, is what the inconsistencies between the state and private entities demonstrate on a broader scale. They serve as first-hand evidence of the installation of pro-gay decision-makers in official state positions and the mainstreaming of gay centrist positions.

In previous marriage equality cases, the state willingly advanced or allowed arguments based on procreation and childrearing. In New York, the state’s highest court relied primarily on these arguments to uphold the state’s restriction. The New Jersey appellate court credited these ideas before reversal by the state supreme court. And in Massachusetts, the dissent strongly appealed to responsible procreation and the value of different-sex parents. Yet in California, the state made none of these arguments.

The state’s unwillingness to argue from procreation and childrearing makes sense as a matter of demographic reality; as the Williams Institute has shown, and as Chief Justice George pointed out, approximately 30% of same-sex couples in California are raising children. Yet recognition of demographics cannot account for this shift. After all, Massachusetts, New York, and New Jersey certainly had a significant portion of children being raised by same-sex couples.

The state’s reluctance also makes sense in light of a domestic partnership statute that provides practically all the substantive benefits and obligations of marriage and numerous court decisions recognizing the ability of same-sex couples to parent effectively. Yet the law does not recognize actual marriage, and this certainly is tied up in normative notions of family. Moreover, other states have pro-gay law and policy. New Jersey’s comprehensive domestic partnership scheme and favorable family law posture did not prevent the appeal to arguments from procreation and childrearing in that state.

Rather, to fully understand the state’s position, we must look to a shift in mainstream thought characterized by an increasingly institutionalized pro-gay perspective that hews to a gay centrist paradigm of coupling, parenting, and general respectability. What were once considered controversial, left/progressive positions, and what still constitute the dreaded “homosexual agenda” in social conservative circles, are now mainstream ideas held by those at the highest level of state government. And yet these same state decision-makers are charged with defending the state’s marriage restriction, itself a remnant of ideas that have been displaced by these new pro-gay principles. It is a difficult balancing act that the state’s advocates now attempt. Indeed, Mr. Krueger’s seeming discomfort at the podium as he defended the state’s marriage restriction perhaps best typifies the uneasy ground on which the state now stands. The fact that the Governor was represented by a separate attorney before the court, rather than Mr. Krueger, only underscores the fine lines being drawn within the state.

Lesbians and gay men have made great strides in debunking harmful stereotypes and proving themselves capable citizens, yet the state still attempts to uphold restrictions that burden their participation. We just might find that it is impossible to defend such restrictions when those charged with the task are unwilling to appeal to the actual justifications animating them.

Douglas NeJaime is the Williams Institute Law Teaching Fellow at UCLA School of Law
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