Gay marriage’s day in court

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Is it possible that California, which was both riveted and divided by the Proposition 8 campaign and its aftermath, actually looked away for a couple of months, distracted by shared worries over the economy? After all, it’s hard to boycott supporters of one side or the other when everyone is trying to save money.

This morning, though, our collective eye is glued to the televised (and webcast) oral arguments before the state Supreme Court, which is hearing an unusual line of reasoning by defenders of same-sex marriage. They seek to overturn Proposition 8 by saying it isn’t a constitutional amendment at all, but a constitutional revision that should have been required to go through a much more rigorous process to become law. Another argument, by state Atty. Gen. Jerry Brown, holds that the right to marry whom one wishes is part of Californians’ inalienable right to liberty. As such, he wrote, it cannot be denied to a so-called suspect class -- a group of people who have historically been targets of prejudice -- no matter what the political process.

Should the ruling go against Proposition 8, there almost surely will be a move to unseat one or more justices by people who conveniently ignore the court’s proper job -- which is not to assuage voters or political groups but to interpret law in accordance with the state Constitution. This case is particularly difficult to parse or predict, pitting a history of constitutional case law against a proposition that goes to the heart of what the Constitution is all about: protecting the rights of Californians.


The court has traditionally cast a skeptical eye on arguments that invoke the murky revision clause, which calls for substantial changes to the Constitution to be passed by two-thirds of the Legislature and then by a majority of voters. The two laws it found to be illegal revisions involved sweeping changes to the structure of state government.

The 14 words of Proposition 8, prohibiting the state from recognizing marriage that is not between a man and a woman, don’t fall easily into that category. Their message is simple, and they are about rights rather than about government structure. But if one of the fundamental purposes of the Constitution is the protection of Californians’ rights, perhaps an upending of that purpose also could be rightly construed as substantial.

The honored system of amending the U.S. Constitution, a difficult process meant to eliminate all but the most broadly acceptedchanges to this nation’s basic document, has generally worked well. As a result, people think of constitutional amendments as having great meaning and weight. In reality, California’s constitutional amendments are passed by the same procedure as a state parks bond, with a simple majority vote by the electorate. Considering the ease with which a well-funded ballot initiative can garner millions of votes, the state -- and the high court -- would do well to consider how easily the majority can tyrannize a minority through the amendment process.

Demographics are changing. Younger voters are far more likely than their elders to favor the legalization of same-sex marriage. If the arguments made in defense of same-sex marriage do not succeed this time, we hope to see an election day in the near future that will overturn Proposition 8 and restore equal marriage rights to California. But neither that possibility nor the threat of judicial ouster should carry weight with the justices today. Their job is to look at whether the narrow view presented by case law, or broader claims about the meaning of the Constitution, should prevail in one of this state’s most divisive debates.

Oral arguments on Proposition 8 are scheduled to be broadcast from 9 a.m. to noon on the California Channel, available to cable customers. (A list of local channel numbers for this service is available at “> .) The hearing also will be streamed live on “> . During the hearing, the Times editorial board will be posting commentary and accepting readers’ comments at .