Opponents of Proposition 8 contend that the measure is a constitutional revision because it prohibits California courts from exercising their core duties to protect the rights of a minority and eviscerates equal protection for a constitutionally protected class of people.
If Proposition 8 is upheld, "California courts would be rendered powerless to enforce the guarantee of equal protection for a historically stigmatized and disadvantaged minority," said one of the lawsuits, brought by the National Center for Lesbian Rights and other groups.
Some of the petitioners have urged the court to consider a hypothetical constitutional amendment that reinstated a ban on interracial marriage. The state high court struck down such a ban on federal grounds in 1948 and today's court cited it in overturning the first gay-marriage ban in May.
But Proposition 8's Pugno said voters could indeed resurrect a ban on mixed-race marriages if the issue had been decided purely on state constitutional grounds.
The revision challenge "is a very creative argument, but it really demonstrates they don't have anything left to challenge this," Pugno said. "It's really a long shot. Case after case has challenged what voters have done and the court time after time has upheld the people's power."
He contended that gay rights lawyers resorted to the revision argument because they wanted to keep the cases out of federal court. If the lawsuits had cited federal constitutional grounds for overturning Proposition 8, they could eventually have reached the U.S. Supreme Court.
Gay rights lawyers, fearful that a high court defeat on same-sex marriage would set the movement back decades, have urged supporters to stay out of federal court.
Some legal scholars also have expressed doubt that the California Supreme Court would rule in favor of the challengers, but 19 law professors, including Harvard's Laurence Tribe, a constitutional scholar, have urged the court to strike down the measure as an illegal revision.
In deciding whether to review the lawsuits, the California Supreme Court also could take up the question of the validity of same-sex marriages entered into before the election.
Whatever the court decides, its historic May marriage decision will continue to be influential. It elevated sexual orientation to the constitutional status of race and gender, a ruling that voters did not overturn.
"I don't believe this is a court that is going to give in to political pressure either way," said Hastings law professor Donna Ryu, who wrote the law professors' letter to the court. "I believe they will exercise their duty as the highest judicial officers of the state."
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maura.dolan@latimes.com
