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BACKGROUNDER

Gay marriage on trial

The next round in California's long fight over same-sex unions takes place before the state Supreme Court. And controversial Prop. 8 is just the beginning of the argument.

March 01, 2009|Nicholas Goldberg | Nicholas Goldberg is the deputy editor of The Times' editorial pages.

California's long, tortuous war over same-sex marriage enters its next phase on Thursday, when the state Supreme Court hears oral arguments on three lawsuits challenging Proposition 8, the controversial constitutional amendment that bans gay marriage.

The easy way to think about these cases -- and the way most non-lawyers are likely to do it -- is to decide which side of the issue you're on and root for that side to win. In other words, if you support marriage between same-sex couples, you'll want the cases to succeed so that Proposition 8 will be overturned. If you believe men and women should only be allowed to marry each other, you'll hope the lawsuits fail.

That's fine. It's outcome-based. But frankly, it has very little to do with what the Supreme Court is going to consider in the oral arguments.

Instead, the argument in the courtroom will be broader and more abstract. Who makes law in a democracy? What should we do when laws contradict one another? Who is the ultimate sovereign in the state of California -- the people at the polls or their written Constitution or their appointed judges or their elected legislators? Can fundamental constitutional rights -- inalienable rights -- be withdrawn from one group but not another?

These are big, thorny questions with implications that go well beyond whether gays are allowed to marry. What follows is a cheater's guide to the issues at hand.

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Remind us: How did we get here?

The battle over same-sex marriage sometimes seems endless. Gay couples have been trying to get married in California since the late 1970s, and their opponents have been working just as hard since then to ensure that it does not happen.

Here are some highlights: In March 2000, California voters approved Proposition 22, specifying that only marriages between men and women would be recognized. Then, in 2004, San Francisco Mayor Gavin Newsom decided -- despite Prop. 22 -- to allow gay marriage in his city, setting the stage for the legal battle that followed.

After many twists and turns, the California Supreme Court ruled last May that same-sex couples enjoyed a fundamental "right to marry" in the state Constitution, and that Prop. 22 was therefore unconstitutional. Gay marriages went forward.

But by November, the other side was back, this time with Prop. 8, a voter initiative that would again limit marriage to a man and a woman -- but now as an amendment to the state Constitution rather than a mere change in the law. It passed, and -- surprise! -- is now being challenged.

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Break down the arguments for us. What do the defenders of Prop. 8 say?

They make the simplest and cleanest argument. They say that when the Supreme Court was poised to declare their original law -- Prop. 22 -- unconstitutional, they did just what they were supposed to do. They decided to change the state Constitution itself, to safeguard their position once and for all. They gathered the necessary signatures, qualified Prop. 8 for the ballot and persuaded a majority of voters to approve it.

The way Prop. 8's supporters see it, the people have spoken, amending the state's foundational document to make it crystal clear where they stand. How could any judge possibly misconstrue the simple 14-word amendment or declare unconstitutional something that is now enshrined in the Constitution itself?

"The Constitution has now been amended, by the sovereign people who are its creators," wrote the lawyers defending Prop. 8. "That is the beginning and end of this case."

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That does seem hard to dispute. Democracy is democracy, the people are sovereign and all that. What's the other side say?

Opponents of Prop. 8 argue that although some changes to the Constitution can be made by a simple majority of Californians, others cannot.

They note that there is a difference between an "amendment" of the Constitution, which can be approved by a majority of voters, and a more substantive "revision" of the Constitution, which requires a two-thirds vote of the Legislature before it can get on the ballot.

Proposition 8 was passed as an amendment. But, opponents say, it should've been passed as a revision. This may sound like a dry technical issue, one of process rather than substance. But don't be fooled: It's very much about substance.

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Why should it have been a revision?

Because it's so sweeping. Opponents argue that the freedom of gay people to marry whom they want is a fundamental right -- protected under the California Constitution's guarantees of liberty, privacy and equal protection. These rights can't be denied to a vulnerable minority just because 50.1% of California voters get it into their heads to do so. If anything should require the tougher standards of a "revision," it's this.

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