California Justices Hear Arguments in Same-Sex Marriage Case

Oscar Riveiro joins other people during a rally in front of the California Supreme Court Building after arguments were heard for and against Proposition 8.

People rally in front of the California Supreme Court Building as arguments are heard for and against Proposition 8.

Throughout the oral arguments, the court was faced with two choices: It can conclude that Prop 8 is a legitimate amendment and uphold it as the law, which would also require it to determine the legal status of the 18,000 same-sex couples married last summer. Or it can decide that the initiative, because it makes drastic changes to the state's constitutional fabric, qualifies as a more expansive constitutional "revision," instead. Since a revision requires a two-thirds vote of the state legislature before it can appear on the ballot—something Prop 8 never got—this would render the initiative invalid.

Legal experts say it's difficult to tell which direction the court is leaning, although its 4-to-3 majority in last year's marriage ruling does seem surprisingly vulnerable. Justice Joyce Kennard, in particular, who supported striking down the ban on gay marriage last year—and who is seen as a key swing vote on the court—seemed to be openly reconsidering her position. "This case is different," she said today. "In the marriage case, we were asked to do what we usually do: interpret statutory provisions . . . . Here we are dealing with the different case of the power of the people to limit what the judiciary has done."

Because so much of Kennard's questioning focused on whether to invalidate existing same-sex marriages—a step the court would need to take only if it decided to uphold Prop 8—many observers believe she may be about to change sides. At least five of the justices, including Kennard, appeared determined to leave the marriages intact, but reading the impassive faces on the bench is never an exact science. "Everyone who's honest will agree nobody knows how this is going to turn out," says Evan Wolfson, executive director of Freedom to Marry, a gay rights advocacy group.

Like many of the hundreds of demonstrators waving rainbow flags outside the court today, Wolfson, for one, believes that no matter what the justices decide, the political tide is nevertheless slowly shifting toward same-sex marriage. "Even if the court allows Prop 8 to stand," he says, "we continue to make advances, and public opinion continues to move to our side, and other states will end this discrimination, as will California."

The court has 90 days to issue a decision. Whatever its ruling, the fight for same-sex marriage, with new political momentum or without it, will be moving on to new battlegrounds.

• Read more about Prop 8.
• Read more by Justin Ewers.