SAN FRANCISCO — The California Supreme Court may reveal Thursday whether it intends to uphold Proposition 8, and if so, whether an estimated 18,000 same-sex marriages will remain valid, during a high-stakes televised session that has sparked plans for demonstrations throughout the state.
By now, the court already has drafted a decision on the case, with an author and at least three other justices willing to sign it. Oral arguments sometimes result in changes to the draft, but rarely do they change the majority position. The ruling is due in 90 days.
Chief Justice Ronald M. George, who wrote the historic May 15, 2008, decision that gave same-sex couples the right to marry, will be the one to watch during the hearing because he is often in the majority and usually writes the rulings in the most controversial cases.
Most legal analysts expect that the court will garner enough votes to uphold existing marriages but not enough to overturn Proposition 8. The dissenters in May's 4-3 marriage ruling said the decision should be left to the voters.
One conservative constitutional scholar has said that the court could both affirm its historic May 15 ruling giving gays equality and uphold Proposition 8 by requiring the state to use a term other than "marriage" and apply it to all couples, gay and straight.
"The alternatives are for the court to accept Proposition 8 and authorize the people to rewrite the Constitution in a way that undermines a basic principle of equality," said Pepperdine law professor Douglas Kmiec. If the court overturns Proposition 8, "that is the short course toward impeachment."
The court is under intense pressure. Opponents of gay marriage have threatened to mount a campaign to boot justices who vote to overturn the initiative. The last time voters ousted state high court justices was in 1986, when then-Chief Justice Rose Bird and two colleagues lost a retention election.
On the other side, the Legislature has passed two resolutions opposing Proposition 8, and protests are being planned statewide to urge the court to throw out the measure.
Thousands are expected to descend Thursday on the San Francisco Civic Center to watch the hearing live on a giant outdoor screen, just steps from the courtroom where the justices will be prodding lawyers in a jammed courtroom.
