Calif. court appears likely to uphold Prop 8

by Michael Foust, posted Thursday, March 05, 2009 (5 years ago)

SAN FRANCISCO (BP)--The California Supreme Court appeared willing Thursday to allow Proposition 8 to stand, with key justices during oral arguments expressing skepticism at the legal reasoning made by attorneys urging the striking of the "gay marriage" ban.

At issue is an amendment to the state constitution passed by a majority of voters last fall defining marriage as being between one man and one woman. Prop 8 overturned a 4-3 ruling six months earlier by the court legalizing "gay marriage." California became one of 30 states with such an amendment.

"From what I'm picking up from the oral arguments in this case is that this court should willy-nilly disregard the will of the people," Justice Joyce Kennard, who voted with the court's majority last year, told an attorney who was arguing against Prop 8. "… The people established the constitution. As judges, our power is very limited."

If Kennard and the three minority justices from last year vote to uphold Prop 8, then it will stand. But she may have company, as Chief Justice Ronald M. George and others also seemed critical of legal arguments put forth by Prop 8 opponents. Prop 8 opponents had an uphill battle with Kennard, who had voted not to even take the case.

If Prop 8 is upheld, the justices also must determine whether the thousands of "gay marriages" conducted prior to November remain valid. The court was less than clear which direction it would take there.

California Attorney General Jerry Brown's office argued that Prop 8 should be overturned because it invalidated constitutionally protected inalienable rights. An attorney for the city of San Francisco asserted that Prop 8 was a constitutional revision -- in other words, a drastic change -- and is therefore invalid because constitutional revisions cannot be placed on the ballot by the initiative process alone, as Prop 8 was. But justices seemed skeptical at both arguments.

Court observers watched the oral arguments closely because California's justices -- unlike those on many other courts -- write draft opinions prior to oral arguments. From there, the opinions are tweaked but rarely changed dramatically, experts say. The arguments, then, gave an indication of what the justices had already decided.

George, who wrote the majority opinion last year legalizing "gay marriage," said the state constitution has been amended more than 500 times.

"Maybe the solution has to be a political one … but the fact is there have been initiatives that have restricted and taken away rights of minorities put forth by majority vote," George told an attorney arguing that Prop 8 amounted to a revision. "Maybe that shouldn't be the case, but isn't that the system that we have to live with unless and until it's changed?"

Kennard went so far as to say that people shouldn't assume that the four justices who voted to legalize "gay marriage" would vote to overturn Prop 8. The two pertain to completely different legal issues, she said.

"To me, the issue presented last year in the marriage cases pertained to this court's authority to interpret a statutory provision in light of the state constitution," she told an attorney for the city of San Francisco. "Today we have a completely different issue. … We have a pretty well established body of law in California pertaining to what is or is not a revision. Those decisions do not give strong support to your position that the people couldn't do what they did when they invalidated or disagreed with one aspect of the marriage decision. The people did not invalidate the entire decision."

The justices were particularly critical of the legal reasoning presented by Christopher E. Krueger, senior assistant attorney general for the state. Brown did not appear before the court.

"In your particular theory, you rely on cases that date back to the middle of the 1800s, and my research has shown that the cases on which you so strongly rely on … have been soundly rejected," she told him. "… What about the inalienable right of the people to amend the constitution as the people see fit? From the beginning of our state constitutional history, the right of the people to alter or change the provision of the state constitution has been a basic right, a fundamental right -- to use your term -- an inalienable right. But you would have us choose between these two rights -- the right that you have mentioned to this court, the inalienable right to marry -- and the right of the people to change the constitution as they see fit."

The justices were far less critical of the arguments made by Pepperdine University School of Law Dean Kenneth Starr, who represented ProtectMarriage.com, the group that backed Prop 8. Starr argued that in amending the constitution, the citizens of California are sovereign.

"The people do have the raw power to define the rights," Starr said.

The court is expected to issue a ruling within 90 days.

Prop 8 states, "Only marriage between a man and a woman is valid and recognized in California."


Michael Foust is an assistant editor of Baptist Press

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