According to most of California’s major newspapers, today was not our day.
California Supreme Court justices directed sharp questioning today at attorneys seeking to overturn Proposition 8, the voter-approved ban on same-sex marriage. Justice Joyce Kennard, one of the justices in the majority of the 4-3 ruling last year that legalized gay and lesbian marriages – a decision that voters overturned in approving Prop. 8 in November – said at one point that opponents of the measure would have the court choose between “two rights … the inalienable right to marry and the right of the people to change the constitution as they see fit. And what I’m picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people.”
The California Supreme Court today appeared inclined to uphold Proposition 8, but showed obvious reluctance to void thousands of same-sex marriages already in place when voters restored a ban on gay marriage last fall. During three hours of arguments in San Francisco, the justices peppered lawyers opposing Proposition 8 with questions that suggested they do not believe they have the authority to trump the will of the voters. At the same time, even justices who voted against striking down’s California’s previous ban on gay marriage, indicated that Proposition 8 should not wipe out an estimated 18,000 same-sex marriages that took place last year. “Is that really fair to people who depended on what this court said was the law?” Justice Ming Chin asked Ken Starr, the former Clinton impeachment prosecutor who argued that same-sex marriages shouldn’t be recognized under Proposition 8.
The California Supreme Court appeared ready today to vote to uphold Proposition 8, the November ballot measure that banned gay marriage, but also seemed ready to decide unanimously to recognize existing same-sex marriages. During a three-hour televised hearing in San Francisco, only two of the court’s seven justices indicated a possible readiness to overturn the initiative. Chief Justice Ronald M. George noted that the court was following a different Constitution when it approved gay marriage last May. “Today we have a different state Constitution,” he said. Justice Joyce L. Kennard, who usually votes in favor of gay rights, voted against accepting the revision challenge to Proposition 8 but said she would hear arguments over the validity of existing same-sex marriages. Kennard said during the hearing that “Prop. 8 did not take away the whole bundle of rights that this court articulated in the marriage case.”
The seven justices, who will render their decision on Proposition 8 within 90 days, immediately questioned opponents’ view that the November initiative was an improper revision of the state constitution. Justice Joyce Kennard noted that the Proposition 8 added just 14 words to the state constitution: “Only marriage between a man and a woman is valid or recognized in California,” and so could not be considered a revision based simply on length. Chief Justice Ron George noted that the California constitution has been properly amended hundreds of times, much more frequently than the U.S. constitution. He raised the possibility that the change gay-marriage proponents oppose is simply the result of California’s system, which gives the people the right to amend the constitution through the initiative process.