The California Supreme Court tomorrow hears arguments on three lawsuits to overturn Proposition 8, the voter-approved November measure that bans same-sex marriage. The case is one of the most closely watched in state history. KPCC's Frank Stoltze says the court's decision will also be watched by the rest of the country.
Frank Stoltze: For gays and lesbians across the state, 2008 was a difficult year. In May, the state Supreme Court said they could marry. More than 18,000 couples did. In November, 52 percent of California voters reversed the court's decision.
Attorney Jennifer Pizer worked on the case. She also got married last year.
Jennifer Pizer: The past year has had among the most intense highs and lows of my personal and professional life. We are needing to touch and connect with lots of people who haven't thought about us gay people very much.
Stoltze: The last year has also rocked religious conservatives. They won their battle to ban same-sex marriage. But they regard the court case challenging Proposition 8 as a threat to their values, and to the social fabric. Mike Spence heads the California Republican Assembly, a socially conservative political action group.
Mike Spence: It's important to society if you view family as its basic unit, and that the best way to raise families is with one mother and one father that are married; and so it's very important and very emotional.
Stoltze: The case before the California Supreme Court may turn on a more procedural question: whether Proposition 8 was an amendment to the state constitution or a revision to it.
Attorney Mark Rosenbaum of the American Civil Liberties Union of Southern California filed a friend-of-the-court brief arguing that the justices should overturn Prop 8 because it was a revision.
Mark Rosenbaum: What Article 18 of our constitution says – and it's a terribly important principle – it says that if there are going to be changes to core principles of our constitution, if the basic governmental plan is to be altered, then we have to use a more deliberative process.
Stoltze: That process involves sending the proposed change through the state legislature, where it must win two-thirds support before voters can decide on it.
Chapman Law School Dean John Eastman argues that Proposition 8 was a constitutional amendment, not a revision that would involve more structural changes to government.
John Eastman: You can imagine that if we said we are not going to have an executive branch anymore, we are going to have a parliamentary system; or we're not going to have two houses of the legislature but only one; those kind of structural changes require revision.
Stoltze: The state Supreme Court has heard only a handful of cases that argue a ballot measure was a revision. In most cases, the court's rejected the argument and deferred to the will of voters. But the ACLU's Rosenbaum says it's never heard such a challenge involving a measure that deals with the rights of a group.
Rosenbaum: Proposition 8 represents the first time in the history of California that the majority has voted to strip away a fundamental right, an inalienable right, from a historically disadvantaged minority.
Stoltze: Rosenbaum maintains that's what made Prop 8 a constitutional revision that needed to go through the legislature first.
But Eastman of Chapman Law School counters that same-sex marriage is not a fundamental right.
Eastman: It's something that existed in this state only since last May, and only because of a fairly aggressive and expansive interpretation of the equal protection clause that the California Supreme Court gave. The people, in their vote in November, corrected or challenged that broad interpretation of equal protection.
Stoltze: In taking the case, the state Supreme Court has asked each side to address whether Proposition 8 also violated the constitution's separation of powers doctrine and, if it upholds the measure, what should happen to the thousands of couples who got married.
Shannon Minter, who directs the National Center for Lesbian Rights, will lead oral arguments against Prop 8. Pepperdine Law School Dean Ken Starr, the independent counsel who investigated President Clinton, will lead oral arguments in its favor.
Attorney Jennifer Pizer says Chief Justice Ronald George will be the man to watch on the bench.
Pizer: He is the chief. He provides very important leadership, and he was the author of the marriage cases decision last year. But everyone needs to keep in mind – it's what they tell us the first day of law school – don't assume you know what a judge or justice is thinking just because of what they ask. They often test out different ideas just to test out different ideas.
Stoltze: The justices ruled four-to-three in favor of same-sex marriage last year. Pizer predicts another close vote. The court will issue its decision within 90 days.