Gay marriage on trial

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 Can fundamental constitutional rights -- inalienable rights -- be withdrawn from one group but not another?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.

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.

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."

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.

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.

Gays are considered a "suspect class" (meaning that state courts already have identified them as a group that has been historically discriminated against), and singling out a suspect class to deprive it of a fundamental right is especially questionable. It requires, at the very least, the kind of extra "formality, discussion and deliberation" that the Supreme Court has said in past decisions is available through the revision process.

We live, after all, in a constitutional democracy, not a pure democracy. That means, as every schoolchild is taught, that there are checks and balances on the majority's power over the rights of minorities.

How do the pro-Prop. 8 forces respond?

They say it's all a lot of hooey: Prop. 8 isn't a revision. It only adds 14 words to the document, for goodness' sake! As a brief from the American Center for Law & Justice noted, the amendment involves no redistribution of authority among the branches of state government, no "wholesale diversion from the stated original purpose of the Constitution." Plenty of other amendments have required change at least as sweeping as Prop. 8, they say, and the court has rarely demurred.

"Proposition 8 only clarifies what has been the status quo of marital rights under the California Constitution since its adoption in 1850," says the brief.

So who is right?

It's very difficult to know how the Supreme Court will decide the amendment/revision question. The court has ruled about 10 times on this in the past, and has on just three occasions said that an amendment should have been passed as a revision.

And in those cases, how did the court distinguish a revision from an amendment?

The court has repeatedly said that the kinds of measures that must be considered revisions are those that would enact "far-reaching changes in our governmental framework." That phrase has never been fully or clearly defined, but in general, the measures deemed revisions have tended to involve significant changes in the government's underlying structure or in the separation of powers between the branches of government. Proposition 8 doesn't fall easily in that category.

Other changes, even significant ones, have generally been accepted as amendments. Proposition 13, for instance, was upheld as an amendment, despite its obviously dramatic implications for government. So was the reinstatement of the death penalty, despite a previous decision by the court saying that it deprived Californians of their constitutional protection against cruel or unusual punishment.

That doesn't sound very promising for those who would like to see Prop. 8 struck down.

Well, there's no reason the court can't broaden its view of what constitutes a revision. The anti-Prop. 8 lawyers believe the court should do just that. They say that this is a new issue for the court -- it's the first time in history, they say, that California is seeking to withdraw a fundamental right from a suspect class -- and the court should recognize the significance of that change by deeming it a revision. After all, given this country's historic concern about the tyranny of majorities over minorities, should such a landmark change really be accomplished by a simple majority vote? Does our Constitution guarantee fundamental rights for all, or only for those chosen by the majority?

What's the position of the state of California on all this?

Interestingly, Atty. Gen. Jerry Brown, who is a supporter of gay marriage, disagrees that Prop. 8 should have been passed as a revision.


He apparently doesn't find it persuasive. He says Prop. 8 doesn't fall into the category of very rare cases in which an amendment is insufficient and a revision is necessary.

So he's backing Prop. 8?

No, he makes a separate, although not unrelated, argument of his own for why it should be struck down.

Brown argues that some rights are, as the California Constitution says in Article I, inalienable, and that means they cannot be taken away from a disfavored group by the state or even by the people themselves without, at the very least, a compelling justification. They can't be taken away by amendment, and not by revision either.

Surely he doesn't think the framers of the California Constitution believed in an inalienable right to same-sex marriage?

Of course not. The inalienable rights he's referring to are generally broad, "natural" rights, which predate the federal and the state constitutions and also encompass other, smaller rights within them. One of them, specified in the state Constitution, is the right to liberty. And although that might not have included gay marriage when the Constitution was written, Brown notes that "the scope of liberty evolves over time."

Will his argument fly?

Well, the court is already on record as saying that marriage is a fundamental right. But the other part of Brown's argument -- that certain rights are truly inalienable and may not be rescinded, even by the people -- is new and risky. Many people believe that constitutions are, and should be, changeable, if the proper process is followed.

The pro-Prop. 8 lawyers were not surprisingly underwhelmed by Brown's argument, which they called "detached from reality," and which they described as "the decidedly unorthodox view that natural law calls for this court to tear asunder the judgment of the people. This has never happened in California's long and storied history."

What is the status of gay marriage now?

Same-sex marriages are suspended, pending the outcome of these cases. The court also will take up the issue of retroactivity: If Prop. 8 is ultimately upheld, what becomes of the marriages that took place between May 2008 (when the Supreme Court ruled gay marriage legal) and November 2008 (when Prop. 8 once again declared it illegal)? The court has promised a decision on all these issues within 90 days of the oral arguments.

Nicholas Goldberg is the deputy editor of The Times' editorial pages.

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