Proposition 8’s Same-Sex Marriage Ban Goes to California's Supreme Court

SAN FRANCISCO—A majority of California voters may have supported Proposition 8, the constitutional amendment passed four months ago that eliminated the rights of same-sex couples to marry. But as the state Supreme Court prepares to hear oral arguments on a series of legal challenges to the law tomorrow, more and more members of the state's political establishment continue to take a public stand against it—raising questions, in some quarters, about why so many politicians here have opted to openly break with a majority of voters.

This week, both houses of the state Legislature and the state's attorney general, Jerry Brown, roundly condemned the law and asked the Supreme Court to overturn it. The state's governor, Arnold Schwarzenegger, both of its U.S. senators, Dianne Feinstein and Barbara Boxer, and its highest-ranking congresswoman, Nancy Pelosi, have all made statements since the election denouncing the law. Proposition 8, which defines marriage as only between a man and a woman, passed in November with 52 percent of the vote.

In a party-line vote on Monday, the Democrat-controlled state Legislature took a legal stand against the law, passing a nonbinding resolution declaring that voters alone did not have the right to amend the Constitution in this case. The resolution asserts that Prop. 8, because it strips a minority group of a constitutionally protected right by mere majority vote, is an improper revision of the Constitution. Since a revision requires a two-thirds vote of the state Legislature before it can appear on the ballot—something Proposition 8 never got—lawmakers have asked the court to render the law invalid.

"We're talking about a radical revision to our Constitution," says Mark Leno, an openly gay state senator from San Francisco who has sponsored several bills passed by lawmakers in the past few years that would have legalized same-sex marriage, only to see Schwarzenegger veto them. "Do we have a constitutional democracy in California, or do we have mob rule, where a majority of Californians can change the Constitution at any time?"

Brown, whose office argued against the legalization of same-sex marriage last year when the Supreme Court first heard arguments on the subject, is also urging the court to invalidate Proposition 8. "The case touches the heart of our democracy," Brown said in a statement yesterday, comparing the initiative to a law passed in 1964 by 65 percent of voters that would have legalized racial discrimination in the selling or renting of housing. The California Supreme Court ultimately struck down that proposition. "As California's attorney general," Brown said, "I believe the court should strike down Proposition 8 for remarkably similar reasons—because it unconstitutionally discriminates against same-sex couples and deprives them of the fundamental right to marry."

There has been a lot of discussion among political analysts here in the past few months about why so many high-profile political figures in the state have been willing to throw their support behind a position disapproved of by a majority of voters. Schwarzenegger has explained away his previous vetoes of same-sex marriage legislation by saying he refused to sign the bills while the Supreme Court was considering the matter. But Brown, in particular, who is considering a run for governor in 2010, has seemed to abruptly change sides in the past year.

Experts believe there are two likely explanations for the A-list political support: First, only a small majority of voters supported Proposition 8, far fewer than have supported bans on same-sex marriage in the past, and polls show the support dwindling. Because younger voters and most Democrats in this state don't have an objection to gays and lesbians marrying, there is very little political pressure on many Democratic politicians in the state to support a ban.

There are also legitimate constitutional questions about Proposition 8, experts say. Once the Supreme Court found the ban on gay marriage unconstitutional last year, the legal landscape changed. The court not only said marriage was a fundamental right but set a precedent by putting sexual orientation in the same legally protected class as race and gender. For Brown, especially, this meant that upholding the law, no matter what the voters said, now meant fighting Proposition 8.

"The idea that a simple majority can vote away a fundamental right from one minority, whoever it may be—the more [Brown] looked at it, the more he said to himself, 'This is not the way American constitutionalism is supposed to work,' " says Evan Wolfson, executive director of Freedom to Marry, a gay rights advocacy group. "There are other attorneys general in other cases in other states who've said, 'We're with you; we believe gay people should have the freedom to marry. But my job is to defend the law, and I have to do my job.' People tend to understand that. But I think when he was preparing to defend it, he decided it really was indefensible."

The court's ruling last spring rested on a 4-to-3 majority. If the justices vote the same way in the cases before them tomorrow, Proposition 8 would be invalidated. After the court hears arguments tomorrow, it will have 90 days to issue a decision.