http://www.latimes.com/news/la-me-prop8-supreme-court6-2009mar06,0,7440203.story?track=ntothtml
From the Los Angeles Times
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.
By Maura
Dolan
March 6, 2009
Reporting from 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
businessThe 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 wordsJustice
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.
maura.dolan@latimes.comTimes
staff writers Carol J. Williams, Jessica Garrison and Maria L. LaGanga
contributed to this report.