California Justices Hear Arguments in Same-Sex Marriage Case

SAN FRANCISCO—As the justices filed into the California Supreme Court here today to hear arguments on the legality of Proposition 8, the voter-approved initiative that eliminated same-sex marriage in this state, it felt like déjà vu all over again.

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.

Only a year ago, in the same courtroom, the same court found a law with wording similar to Prop 8 unconstitutional, saying gays and lesbians had the same fundamental right to marry that straight people do and that denying them that right violated the state's equal-protection laws. The landmark ruling was hailed in some quarters as a historic victory—and condemned in others as a case of unbridled judicial activism. Six months after the decision, after 18,000 same-sex marriages had been conducted across the state, 52 percent of voters approved Proposition 8, eliminating gays' right to marry by amending the Constitution with a simple majority vote.

The outcome seemed to catch many gay rights advocates flat-footed. Amid a storm of protests in the fall, it left only two states, Massachusetts and Connecticut, where gay marriage is legal, while 30 others, including California, now have constitutional amendments defining marriage as only between a man and a woman.

Supporters of same-sex marriage say they are still making progress in a handful of other states. Lawmakers in Hawaii, the first state to amend its constitution to ban gay marriage more than a decade ago, are considering legislation that would allow gay couples to form civil unions. Bills legalizing same-sex marriage are likely to be introduced in five northeastern states over the next year, including New Jersey and New York. A gay rights group also filed suit in federal court this week, demanding equal access to federal benefits like Social Security payments for married same-sex couples—a first step toward a potential U.S. Supreme Court case.

Still, as hundreds of demonstrators filled the plaza outside the courthouse here today, chanting into megaphones and waving rainbow flags, it was clear that California remains the most visible—and, with 1 out of every 6 same-sex couples in the country living here, perhaps the most important—battleground in the fight over gay marriage. "The vote in November didn't slow the process down anywhere in the country; if anything, it accelerated it," says Brad Sears, executive director of the sexual orientation law institute at UCLA. But because of California's size—not to mention its symbolism—legalizing same-sex marriage here would put enormous pressure on the courts and Congress to push for a national resolution. "A decision to overturn Prop 8," says Sears, "would be a game-changer nationally."

Inside the courtroom, the justices listened to oral arguments today on three lawsuits filed against Proposition 8 in the fall, wrestling with many of the same legal issues they dealt with last year. Opponents of same-sex marriage, represented by Kenneth Starr, the onetime Clinton-era prosecutor who is serving as the lead attorney defending the new law, insisted the court had no choice but to bow to the will of the majority. "The people have the raw power to define rights," Starr, resplendent in a pink tie, told the justices. "I know there is an enormous amount of humanity and emotion involved in this," he said, "but the people are sovereign.... As long as it is in fact clear to the people what they're voting on, we govern ourselves and we must govern ourselves."

Supporters of same-sex marriage, meanwhile, responded that the initiative, just like the law the court rejected last year, is discriminatory and unconstitutional on its face. "What Proposition 8 does is establish a constitutional precedent that a majority can take away the rights of a group based on a characteristic that has no relevance to their participation in society," Shannon Minter, the legal director of the National Center for Lesbian Rights, told the justices. "Our government is based on the principle not just of majority rule but an equally important principle that the majority must respect the rights of the minority—that the check on the majority is just as important as majority rule." Because the justices found last year that gays and lesbians had a fundamental right to marry, Minter said, it would be unprecedented for the same court to allow a simple majority to take that right away.

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.