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The California Supreme Court is a conservative institution, with six of seven members appointed by Republican governors. Persuading the court that gays and lesbians have a constitutional right to marriage — especially when the state’s voters have banned it — has to be regarded as an uphill battle. But the court, which includes several women and ethnic minorities, has been unpredictable on issues surrounding discrimination. RONALD GEORGE: The chief justice has shown sensitivity to discrimination issues, both as a jurist and as the state courts’ top administrator. In the latter capacity he angered some fellow conservatives with his appointment of Judge Donna Hitchens, a lesbian, to the Judicial Council’s Committee on Access and Fairness in the Courts. Under George’s watch the council also established a subcommittee on sexual orientation fairness. On the bench, George disappointed gay rights advocates with his opinion in Curran v. Mount Diablo Council of the Boy Scouts, 17 Cal.4th 670, which held that the Scouts are not a “business establishment” subject to the state’s civil rights law. But he sided with gay rights advocates on each of the other four big cases of the past eight years. Conservatives tried to remove George from the court in 1998 after he voted to strike down a law requiring parental consent for abortion. George was re-elected with 75 percent of the vote, and won’t face another election until 2010. KATHRYN MICKLE WERDEGAR: Although a judicial conservative, Werdegar is probably the best hope for proponents of same-sex marriage. Werdegar once worked in the Kennedy Justice Department’s civil rights division, and her husband worked closely with San Francisco’s gay community while head of the city’s public health department in the 1980s. Werdegar was the author of several opinions that favored gay rights, including Sharon S. v. Superior Court, 31 Cal.4th 417, which upheld second-parent adoptions, and Galanty v. Paul Revere Life Insurance Co., 23 Cal.4th 368, which upheld an HIV-positive man’s claim for disability insurance coverage. Werdegar also wrote the lead opinion in Smith v. Fair Employment and Housing Commission, 12 Cal.4th 1143, which held that a Christian landlady could not refuse to rent to unmarried couples based on her religious principles. Although not directly addressing gay rights, that case was seen as a victory by the gay community. Werdegar was re-elected to a 12-year term in 2002. JOYCE KENNARD: The always unpredictable Kennard has sided with gay rights supporters on three of the five major cases. She concurred separately in the Curran Boy Scouts case, saying she would defer to U.S. Supreme Court decisions that favored the Scouts. She dissented from Werdegar’s opinion in the Smith case, arguing that the state had not demonstrated a compelling governmental interest in preventing housing discrimination against unmarried couples. Kennard is arguably the least politically oriented of any of the justices and the most likely to vote her conscience and her view of the law, wherever it may take her. She is scheduled to face the voters in 2006. Kennard, who grew up in Indonesia in a poor family of mixed European and Asian heritage, has spoken of having endured discrimination herself. “When you’re mixed,” she once told The Los Angeles Times, “you don’t belong to any group.” CARLOS MORENO: Moreno, who was appointed to the Supreme Court in 2002, has the least obvious track record on gay rights issues of any of the justices. He is the only justice appointed by a Democratic governor, and so far has steered a centrist course. Moreno was raised Catholic in a working-class Latino neighborhood of Los Angeles. Although he without doubt has experienced discrimination in his life, it is not something he addresses often in public appearances. His next election is in 2010. MING CHIN: Chin is another whose conservative judicial instincts might point in one direction on the gay marriage issue, but whose personal experience with discrimination might point in another. Chin is a solid conservative who often — but not always — sides with Justices Baxter and Brown on hot-button issues. Chin was raised by Chinese immigrant parents and has spoken of the discrimination the family endured. He has served on the Judicial Council’s advisory committee on racial and ethnic bias and on the San Francisco DA’s commission on hate crimes. Chin has shown little fear of political backlash, making clear at his confirmation hearing that he was both pro-choice and pro-death penalty. When he provided the fourth vote in the parental consent case, conservatives revolted and tried — unsuccessfully — to remove him from the bench. Chin’s seat on the Supreme Court is guaranteed until 2010. MARVIN BAXTER: At first blush Baxter, a political and judicial conservative, would seem a highly unlikely vote in favor of same-sex marriage. Baxter was, however, the author of the court’s unanimous opinion in Baluyut v. Superior Court, 12 Cal.4th 826, which sided with a group of gay men challenging their convictions for having sex in a public park. The men argued that the police had targeted them because of their orientation. Baxter also voted to uphold second-parent adoptions in Sharon S., although he wrote separately to suggest a less expansive approach to the issue. JANICE ROGERS BROWN: Brown is the court’s most outspoken conservative and seems the most likely to rule that the courts should defer to the voters. Brown’s nomination by President Bush to the D.C. Circuit U.S. Court of Appeals remains pending, and a vote to uphold same-sex marriage could further jeopardize her chances of confirmation, to say nothing of a future nomination to the U.S. Supreme Court. Brown occasionally defies predictions, though, and has filed some opinions that cut sharply against the conservative grain. She joined the unanimous court in Baluyut and Galanty. She concurred separately in Curran, writing in favor of the Boy Scouts, and dissented in Sharon S., saying the Legislature intended to limit second-parent adoption to parents who had a legal relationship, including a domestic partnership.

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