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California Supreme Court looks unlikely to kill Proposition 8

State justices appear unwilling to overturn the gay-marriage ban but suggest that pre-vote weddings are valid.

March 06, 2009|Maura Dolan

SAN FRANCISCO — The California Supreme Court strongly indicated Thursday it would rule that Proposition 8 validly abolished the right for gays to marry but would allow same-sex couples who wed before the November election to remain legally married.

The long-awaited hearing, which came as dueling demonstrators chanted and carried banners outside, was a disappointment for gay rights lawyers.

They had hoped the same court majority that overturned the state's previous marriage ban would conclude that Proposition 8 was an impermissible constitutional revision.

Two members of that majority -- Chief Justice Ronald M. George and Justice Joyce L. Kennard -- expressed deep skepticism toward the gay rights lawyers' arguments. Without their votes, Proposition 8 appeared almost certain to survive.

The other two justices who ruled in favor of marriage rights last year -- Carlos R. Moreno and Kathryn Mickle Werdegar -- seemed more open to the revision challenge. Moreno even helped gay rights lawyers with their arguments.

But the court revealed no division on whether to uphold the marriages of an estimated 18,000 same-sex couples who wed before November.

Even Justice Marvin Baxter, the court's most conservative member, observed that the couples got married after receiving the right by "the highest court of the state."

"How can we deny the validity of those marriages?" Baxter asked.

The court's ruling is due within 90 days.

Gay marriage advocates all but conceded defeat.

Kate Kendell, executive director of the National Center for Lesbian Rights, which represented some of the plaintiffs, acknowledged that the court had appeared skeptical of their arguments.

"I think conversations about going back to the ballot need to happen vigorously and strategically," Kendell said. "2010 would be the next statewide ballot, and in campaign terms, that is just around the corner. I just don't know whether we have the groundwork in place to mount such an effort or the financial resources."

A brisk business

The Proposition 8 campaign followed the California Supreme Court's landmark 4-3 ruling May 15 to overturn a ban on same-sex marriage. Gay couples quickly lined up to marry, many of them from out of state.

The wedding business was brisk until Nov. 4, when Proposition 8 passed with 52% of the vote. The two sides spent a total of more than $80 million, the most ever for an initiative about a social issue.

The legal challenges to the measure have been closely watched nationwide. Both opponents and supporters of gay marriage flocked Thursday to the state building in San Francisco where the California Supreme Court is housed, each trying to drown out the other side with chants.

Gay rights lawyers had argued that Proposition 8 removed a fundamental right from a protected minority that has suffered discrimination.

As such, it revised the Constitution, instead of merely amending it, they said. Revisions can be placed on the ballot only by a two-thirds vote of the Legislature or a constitutional convention.

Kennard, traditionally a strong supporter of gay rights, repeatedly noted that Proposition 8 was a mere 14 words and simply took away the "label" of marriage.

She reminded lawyers that the "core" part of last year's marriage ruling required the state to give sexual orientation the same constitutional protection as race and gender.

Proposition 8 "hasn't destroyed equal protection," Kennard said.

"I think what you are overlooking is the very broad powers of the people to amend the Constitution," she said.

She described the Proposition 8 case as "completely different" from last year's marriage cases and stressed that previous high court decisions "don't support" the challenges.

"What I am picking up from this case is that the court should willy-nilly disregard the will of the people," Kennard said.

George also indicated that the elevated constitutional status of sexual orientation was more important than the "mere designation" of marriage.

He noted that the state's Constitution has been amended more than 500 times and asked whether the real problem was that "it's just too easy to amend the California Constitution."

"Maybe the solution has to be a political one," George said, and until the amendment process is changed, "isn't this the system we have to live with?"

When Werdegar, one of the more liberal members of the court, called the Proposition 8 case "unique" and observed that it raised unprecedented questions, George was quick to jump in.

"It is not unique in the history of California that the initiative process has been used to restrict the right of one minority or another," said the chief justice, who wrote the May 15 landmark marriage ruling.

What if gays had won the right to marry by initiative and a later initiative took that right away? George asked.

"Are you saying it is a one-way street -- that you can extend rights by way of initiative and take them away only by revision, the same rights?"

Exceptions have long been carved from equal protection guarantees, he said.

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