By Maura Dolan
March 6, 2009
Reporting from San Francisco
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.
Justice Carol A. Corrigan also observed that people have the right to amend their constitutions: "Isn't the essence of democracy grounded in the right of people to govern themselves?"
Shannon Price Minter, a lawyer with the National Center for Lesbian Rights, countered that Proposition 8 stripped the marriage ruling of a "core element": "the right to be treated with equal dignity and respect."
The initiative did not merely take away the word "marriage," he said. "Nomenclature is not the point," Minter added. "The point is equality."
Dealing with words
Justice Ming W. Chin raised an argument by some scholars that the court could uphold Proposition 8 but require the state to replace the term "marriage" with another name, such as "civil union."
"Is that a viable solution and is that really within the province of this court?" Chin asked skeptically.
Michael Maroko, representing one of the same-sex couples, was blunt.
"If you're in the marriage business, do it equally," he said. If same-sex couples cannot marry, "then straight couples don't have that right either."
On the legality of existing marriages, Kennard noted that the Proposition 8 ballot argument said that only a marriage between a man and a woman would be recognized regardless of where or when performed.
But she said that language "was buried in the middle of the rebuttal argument."
Pepperdine Law School Dean Kenneth Starr, who was hired for the case by the Proposition 8 campaign, urged the court to deny state recognition of existing same-sex marriages while leaving intact rights couples acquired during their marriages, such as inheritances.
"Is that really fair to the people who depended on what this court said was the law of the land?" Chin asked.
George suggested that the Proposition 8 campaign might have been deliberately vague on how it would affect already married same-sex couples "as a matter of strategy, political strategy."
Starr, realizing that he was making no headway, said facetiously: "I see my argument is very persuasive."
The lawyer who fared the worst at Thursday's hearing was state Senior Assistant Atty. Gen. Christopher Krueger, who argued that Proposition 8 should be overturned because it repealed an "inalienable right" without compelling justification.
Atty. Gen. Jerry Brown came up with that novel legal theory after initially saying he would defend Proposition 8.
The justices pressed Krueger to define an "inalienable right."
"How do we know what is an inalienable right?" Moreno asked. "Do we just know it when we see it?"
George noted that voters can amend the Constitution.
"Is that an inalienable right?" he asked.
Kennard told Krueger that his argument relied on 19th century case law that was later overturned. Starr described the attorney general's supporting cases as "quaint."
After the hearing, gay rights lawyers who spoke at a news conference were largely drowned out by a raucous crowd waving signs and shouting, "Stop the hate!" and "Yes on 8!"
San Francisco Chief Deputy City Atty. Theresa Stewart, one of the lawyers in the case, said she was hopeful that the court would not "sell our Constitution down the river."
But she also seemed to forecast defeat when she added: "I have full confidence that we will eventually go back to the ballot box, and we will prevail."
Andrew P. Pugno, a lawyer for the Proposition 8 campaign, said he and supporters "were very pleased how the argument went."
"It appeared there was a broad understanding on the court that ultimately the inalienable right of the people to amend our Constitution will determine the outcome of the case," Pugno said.
He said he found it "perplexing" that the court appeared ready to uphold Proposition 8 and at the same time say "that some gay marriages nevertheless will continue to be recognized."
"Just on its face to the average person, that seems inconsistent," he said.
Times staff writers Carol J. Williams, Jessica Garrison and Maria L. LaGanga contributed to this report.
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