The California Supreme Court today heard oral arguments in three lawsuits challenging Proposition 8, the voter-approved constitutional amendment banning gay marriage. Gay rights lawyers faced tough questions from the justices, who expressed a reluctance to overturn the will of voters. KPCC's Frank Stoltze reports.
Frank Stoltze: Lawyers on both sides of the issue delivered their arguments before the seven justices at the state Supreme Court building in San Francisco. Shannon Minter of the National Center for Lesbian Rights led the team opposing Proposition 8. Minter said the measure stripped gays and lesbians of fundamental rights.
Shannon Minter: It puts those couples in a second class status. It deprives them of equal liberty, dignity, and privacy.
Stoltze: Minter said such a "radical" and "sweeping" change of California's constitution amounts to a revision of the document. Revisions require the approval of two-thirds of the legislature before the state places it on the ballot.
Justice Joyce Kennard, who's a potential swing vote, indicated she wasn't buying the argument and wasn't ready to "willy nilly" disregard the will of the people.
Justice Joyce Kennard: Here we are dealing with the power of the people, an inalienable right, to amend the constitution.
Stoltze: Attorney Minter persisted.
Minter: We can not trust the normal political process to operate adequately or fairly because of systemic distortion by very historically entrenched patterns of discrimination.
Stoltze: Pepperdine Law School Dean Kenneth Starr led arguments in favor of Proposition 8. He said that constitutional amendments placed on the ballot need the approval of two-thirds of the legislature only when they involve structural changes in government, like changing its actual form.
Chief Justice Ronald George challenged that notion.
Chief Justice Ronald George: Let's just say there was a very specific amendment that deleted the right of free speech from Article One of the constitution. Is that something that, because it doesn't deal with governmental structure, you feel could be accomplished by way of amendment?
Stoltze: Yes, said Starr.
Kenneth Starr: My answer is the people do have the raw power to define the rights; that's the nature of the consent of the government.
Stoltze: Starr said it would be a "miscarriage of justice" for the court to overturn the results of a fair election.
Like Justice Kennard, Chief Justice George may cast a swing vote in this case. If so, his response to Starr's arguments may dishearten gay rights advocates.
Chief Justice Ronald George: The fact is, there have been initiatives that have restricted and taken away rights of minorities put forth by majority vote. Maybe that shouldn't be the case, but isn't that the system that we have to live with unless and until it's changed?
Stoltze: George also noted that gays and lesbians still enjoy constitutionally protected minority status – the court granted some of that status in its same-sex marriage ruling last May. Starr used that argument too.
Starr: Proposition 8 does not, in fact, erode any of the considerable bundle of rights that this state has very generously provided.
Stoltze: The state Supreme Court also considered what it should do with the 18,000 marriages performed last summer, if the court affirms the legality of Proposition 8. Pepperdine's Starr argued that California should not recognize them. He acknowledged that Prop 8 did not specifically say the state should invalidate those marriages, but he added that the intent was clear.
Starr: Everyone knows what's going on.
Stoltze: Even the court's more conservative justices expressed skepticism at that notion. Justice Ming Chin sounded reluctant to declare the marriages invalid.
Justice Ming Chin: Is that really fair to the people that depended on what this court said was the law? Upended their lives, changed their property responsibilities with their spouses. Is it really fair to throw that out?
Stoltze: Supporters of gay marriage said no; that the court should at least affirm those marriages, even if it's unwilling to overturn Proposition 8. The Supreme Court has 90 days in which to issue a ruling.