Judges mull rival Prop. 8 debates
By: Joshua Sabatini and Brent Begin
San Francisco Examiner
March 5, 2009
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| Shannon Minter, standing, speaks to the California Supreme Court in San Francisco, Thursday, March 5, 2009 on the constitutionality of the state's voter-approved Proposition 8 that bans gay unions. The court will decide whether to uphold the same-sex marriage ban and whether same-sex couple marriages will remain valid. (AP) |
SAN FRANCISCO — Now the wait begins.
All the buildup, all the legal filings come down to this: Seven California Supreme Court justices have 90 days to rule whether the voter-approved ban on same-sex marriage will stand.
The court heard arguments Thursday for and against Proposition 8, an amendment to the state constitution, defining marriage as between a man and a woman.
Gay-rights advocates are urging the court to overturn Prop. 8 which was approved Nov. 4 by 52 percent of voters. They say the ballot measure was put before voters improperly, or at least prematurely.
The sponsors of Prop 8, represented by Pepperdine law school dean and former Whitewater prosecutor Kenneth Starr, argue against overturning the will of the voters.
The justices heard three hours of arguments weighing whether voters’ decision to ban same-sex marriage was a denial of a fundamental right or within what one justice called the people’s “very broad powers” to amend the state constitution.
Prop. 8 changed the California Constitution to trump last year’s 4-3 state Supreme Court decision that legalized same-sex marriage. Then, the court found that denying same-sex couples the right to wed was an unconstitutional civil-rights violation.
Thursday, attorneys on both sides were riddled with a barrage of questions, especially from Associate Justice Joyce Kennard, who sided with the majority that legalized same-sex marriage last year. Kennard, however, said her previous ruling does not mean she has to agree with the latest argument.
“Today, we have a completely different issue,” she said, going on to ask whether the court was being asked to “willy-nilly” disregard the will of the people. The question, Kennard said, is whether majorities must always respect minority rights at the cost of “our Democratic society.”
Chief Justice Ronald George also questioned whether overturning Prop. 8 is best handled in the courtroom.
“It’s just too easy to amend the constitution,” he said. “Maybe the solution has to be a political one.”
To allow voters to take away a fundamental right without addressing the structure of the constitution is akin to “protecting the moat while we allow the castle to burn down,” San Francisco Chief Deputy City Attorney Therese Stewart said, one of three lawyers representing same-sex marriage advocates.
Starr said any attempt to overturn the will of the voters through a revision would lead to an “unprecedented revolution.”
“The people do have the raw power to define rights,” Starr said.
If the justices do overturn Prop. 8, same-sex marriage advocates say they will return to the ballot box to again change the constitution.
“Maybe that’s the outcome,” Mayor Gavin Newsom said. “Lose on this, but we win on that. And we go back to the process once again in two years.”
Couples left wondering whether same-sex marriages are valid
They are married — for now.
Thursday’s hearing didn’t provide any answers to the thousands of same-sex couples waiting to hear if their marriages licenses will be stripped away by the California Supreme Court.
About 18,000 same-sex couples were legally married in California after the state high court ruled same-sex marriage was constitutional on May 15. The passage of Proposition 8 in November halted ceremonies.
As the California Supreme Court debates the validity of Prop. 8, justices are also being asked to decide if the marriages performed before Nov. 7 are valid.
The 14 words comprising Prop. 8 are, “Only marriage between a man and a woman is valid or recognized in California.”
Chief Justice Ronald George suggested that the measure was left “deliberately ambiguous” to make the proposition more appealing to voters. If voters knew they were taking away previously granted marriage licenses, they may not have voted for the measure, he told attorneys arguing in favor of Prop. 8 — including Kenneth Starr, the former Whitewater prosecutor who pursued impeachment charges against President Bill Clinton.
Michael Maroko, who was the only attorney to file arguments against taking away marriage licenses, was confident after the arguments that at least those who have already gone to the alter would remain married.
“I wish the justices wouldn’t have spent so much time on the retroactivity matter,” Maroko said. “Retroactivity is not an issue if they throw the whole [proposition] out.”
Mayor Gavin Newsom, who listened to a portion of Thursday’s legal arguments, said he did not know if the court was convinced that Prop. 8 should be overturned. He did, however, say he was hopeful the ban on same-sex marriage would not be retroactive.
“The idea of stripping away the rights of 18,000 couples retroactively, I don’t think there was a very compelling argument to do that,” Newsom said.
What the court is deciding
- Is Prop. 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
- Does Prop. 8 violate the separation of powers doctrine under the California Constitution?
- If Prop. 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?
— AP
Wire services contributed to this report.
