California Court Expected to Uphold Gay Marriage Ban

In a case with major implications for the future of marriage equality, the California Supreme Court heard oral arguments Thursday on the constitutional validity of Prop. 8.

The measure, which passed with a 52.7 percent vote in November, overturned the Court's May decision legalizing same-sex marriage in the state.

Today opponents of Prop. 8 argued that the measure constitutes a revision to the California constitution, which requires a 2/3rds legislative majority before being put to a popular vote.

The Court also wrangled over whether 18,000 couples that married before Prop. 8 was enacted would have their marriages revoked.

Based on the testimony, much of the media predict that the judges will uphold Prop. 8. Many however are hopeful that at the very least the Court will protect the unions of same-sex couples who have already wed.

In an interview with Reuters, Robin Tyler, one of the lead petitioners in the case said:

"I think they are going to uphold our marriages and they are going to uphold Proposition 8, and it's a loss," ... "What I care about now is getting a million people in the street."

The SF Chronicle writes:

The California Supreme Court, which last year declared the right of gays and lesbians to marry, appeared ready today to uphold the voters' decision to overrule the court and restore the state's ban on same-sex marriage.

"There have been initiatives that have taken away rights from minorities by majority vote" and have been upheld, said Chief Justice Ronald George. "Isn't that the system we have to live with?"

The New York Times had a similar take:

In their questions from the bench, the justices, particularly Justice Joyce L. Kennard, strongly suggested that they did not want to second-guess the will of the state's voters.

One theme that seemed to emerge from the questions was that same-sex couples could be granted the rights of married couples even if they are unable to call themselves married. Even the seemed reluctant to overturn the measure, sighting the will of the voters: Although Justice Kennard had been part of the four-judge majority in last year's case affirming same-sex marriage, she declared from the bench that the state's residents, in passing Proposition 8 with 52 percent of the vote, had not necessarily invalidated the entire decision.

The Oakland Tribune highlights the court's emphasis on the right (or tyranny) of the majority:

Those urging the California Supreme Court to invalidate Proposition 8's ban on same-sex marriage seemed to have had a tough row to hoe Thursday, peppered by justices' questions on balancing marriage rights with voters' rights to change the state constitution.

After three hours of arguments, it seemed as though the seven justices leaned against voiding the 18,000 same-sex marriages performed last year, but their stance on Proposition 8's constitutionality was less clear. They're grappling with issues such as what "inalienable" means when used to describe a constitutional right; whether such rights can be limited or revoked by an amendment, by a revision or at all; and how majority rule balances with protection of historically disadvantaged minorities' fundamental liberties.

The LA Times writes:

During a three-hour televised hearing in San Francisco, only Justices Carlos R. Moreno and Kathryn Mickle Werdegar suggested that the court could overturn the marriage ban as an illegal constitutional revision.

Chief Justice Ronald M. George, who wrote last year's historic ruling allowing same-sex marriage, noted that constitutional amendments have taken away individual rights in the past. He also emphasized that the state Constitution that allowed the court to overturn the ban on same-sex marriage has now been changed by Proposition 8. "Today we have a different state Constitution," George said. Even did not appear hopefull.