Same-sex marriage before California Supreme Court

With bus loads of supporters and protesters watching a live video feed outside the court building in downtown San Francisco, the state Supreme Court heard Thursday oral arguments challenging the legality of Proposition 8, the ballot initiative that state voters approved last November banning same-sex marriage.

A central question the court faces is whether Proposition 8 amounts to a violation of human rights or falls within the limits of people's power to change the state's Constitution.

Other questions at stake: Does Proposition 8 constitute an amendment or a revision of the state Constitution (state legislature approval is required before significant revisions to the Constitution can go to the ballot)? And if the ballot measure stands, what would be the status of some 18,000 same-sex marriages already performed?

"The fundamental question that the court has to answer is just how far can the initiative process be used to change the California constitution and can it literally be used to take away any rights, no matter how fundamental," says David Cruz, professor of law at the University of Southern California (USC), Los Angeles, and a constitutional law expert.

The seven justices heard arguments in favor of overturning the measure from gay rights advocates as well as state attorney Jerry Brown's office, and from Pepperdine University Law School dean Kenneth Starr among others in favor of letting it stand.

The state attorney's office asked the court to invalidate the measure on the ground that certain fundamental rights, including the right to marry, are inalienable, and cannot be put up for a popular vote.

Mr. Starr, the former US independent counsel who headed an investigation that led to former President Bill Clinton's impeachment, argued that Proposition 8 doesn't revise the constitution or allow a majority to take rights away from same-sex couples because it leaves intact California's domestic partner laws.

Californians "will no doubt continue to debate the issue in terms of inalienable rights, justice, tradition and social welfare," Starr said. However, "the judiciary no longer has a role in determining the definition of marriage."

The justices challenged both sides.

"Proposition 8 only deprives same-sex couples of the nomenclature," said Associate Justice Kathryn Werdegard. "Why is that a revision rather than a mere amendment?"

The initiative establishes that a majority of voters can take away rights of a minority, responded Shannon Minter, legal director of the National Center for Lesbian Rights. "The nomenclature is not the point," Minter said. "The point is equality."

The court has to make its decision within 90 days, by June 3. By virtue of having called for oral arguments, the court likely has already formulated what is known as a "draft opinion."

"The justices might have to break new ground in interpreting the state constitution in order to classify Prop. 8 as either a minor amendment which can be adopted using the initiative process or a more profound revision … which cannot," said USC's Professor Cruz after watching the hearings.

That might be difficult since the distinction between a revision and amendment is not clear in the constitution, said John Matsusaka, president of the Referendum and Initiative Institute at USC.

"Proposition 8 is not materially different in form from dozens of other initiatives that have passed over the years," he said.

If the court agrees with the opponents of Proposition 8 that it is a revision rather than an amendment, people might see it "as a somewhat arbitrary change in jurisprudence, and we would see some erosion of confidence in the impartiality of the court," Mr. Matsusaka said, adding, "Those who support initiative rights should be very worried if the court adopts the "revision" argument because it would seem to open the door to challenging just about any successful initiative, and the standard for a successful challenge would be close to arbitrary."

The court will also decide whether to invalidate approximately 18,000 marriages performed before Proposition 8 passed.

At least three justices appeared skeptical that proposition could be applied retroactively. Justice Ronald George suggested the validity of the earlier marriages was purposely omitted from Proposition 8 as a campaign strategy to increase the likelihood of its passage.

Starr said the intent of Proposition 8 was to invalidate those marriages. The proposition was drafted before the high court legalized gay marriage on May 15, he said.

Four out of seven Supreme Court justices voted to legalize same-sex marriage in May, saying bans on same-sex marriages were unconstitutional civil rights violations. One of the four voted against hearing lawsuits seeking to overturn Proposition 8. That has led to speculation that there may be four votes against striking down Proposition 8.

California was the second state after Massachusetts to allow same-sex weddings.

Material from Associated Press was used in this report.