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| Attorney Gloria Allred, center, raises her arms alongside Robin Tyler, at left, and Diane Olson, a gay couple from Los Angeles, during a demonstration on the issue of Proposition 8 in San Francisco, Thursday, March 5, 2009. California Supreme Court justices heard arguments Thursday on lawsuits seeking to overturn the state's voter-approved ban on same-sex nuptials as thousands of people demonstrated outside the courthouse. Gay rights advocates are urging the court to overturn Proposition 8 on the grounds it was put before voters improperly, or at least prematurely. |
SAN FRANCISCO (AP) -- As thousands of demonstrators chanted slogans and waved placards outside, California's highest court on Thursday skeptically grilled lawyers seeking to overturn the state's ban on gay marriage.
Attorneys for same-sex couples argued the public's right to change the constitution doesn't extend to depriving an unpopular minority of the right to wed.
But questions and statements from the justices indicated a wariness to override what Associated Justice Joyce Kennard called the people's "very, very broad, well-established" authority to amend the state's governing framework at the ballot box.
"What I am picking up from the oral arguments is that this court should willy-nilly disregard the will of the people," said Kennard, who just 10 months ago voted that prohibiting same-sex marriages violated the civil rights of gays. "The people established the constitution; as judges, our power is very limited."
The justices heard three hours of arguments on the gay marriage ban, known as Proposition 8, which was approved in November with 52 percent of the vote. It effectively reversed a 4-3 Supreme Court decision that legalized gay marriage 4 1/2 months before the election.
Gay rights advocates argued the proposition is such a sweeping change to the constitution's equal protection clause that it was a constitutional revision, not just an amendment. A revision requires legislative approval before it lands on the ballot.
Chief Justice Ron George, who also ruled last year to strike down a pair of laws that limited marriage to a man and a woman, echoed Kennard's qualms about denying the public its voice.
George noted that the state constitution has been amended at least 500 times compared with the 27 times the U.S. Constitution has been altered, and said it was up to the Legislature or voters - not the court - to make the process more difficult.
"It seems what you are saying is, it is just too easy to amend the California Constitution," George told Raymond Marshall, an attorney representing the NAACP and other civil rights groups trying to overturn the ban. "Maybe the solution has to be a political one."
Minutes into Thursday's proceedings, the justices peppered a lawyer representing unwed same sex couples with tough questions over how the 14 words of Proposition 8 represent a denial of fundamental rights when same-sex couples still have the legal benefits of marriage through domestic partnerships.
"Is it your argument in this proceeding that the passage of Proposition 8 also took away in addition to the label of marriage, the core of substantive rights of marriage this court outlined in its decision last year?" asked Kennard.
"One of the core constitutional rights is to be treated with equality, dignity and respect," replied Shannon Minter, legal director of the National Center for Lesbian Rights.
Supporters of the gay marriage ban, represented by former Whitewater prosecutor Kenneth Starr, said it would be a reversal of the Supreme Court's own precedents for the court to overturn the results of a fair election.
"Under our theory the people are sovereign and they can do very unwise things that tug at the equality principle," Starr said.
He also argued that California voters have an "inalienable right" to amend the constitution and that taking away rights through the initiative process is not a revision that alters the structure of government.
"There must be far-reaching change in the basic structure of government," said Starr.
The court also heard arguments on how the gay marriage ban affects the 18,000 marriages of same-sex couples performed before it passed. Many of the justices appeared skeptical that Proposition 8 could be applied retroactively.
George suggested the validity of the earlier marriages was purposely omitted from the ballot initiative as a campaign strategy to increase the likelihood of its passage.
Starr, dean of Pepperdine law school, said the intent of Proposition 8 was to prevent the state from recognizing any same-sex marriages, noting that it was drafted before the high court legalized gay marriage on May 15.
The Supreme Court's seven justices have 90 days after the oral arguments in which to issue a ruling.
The crowd outside the court grew steadily throughout the hearing, with many watching the proceedings on a giant television screen erected across the street in front of City Hall. Demonstrators were evenly split over the gay marriage issue and took turns drowning out each others chants after the hearing.
Dana Tibbits, who drove 400 miles from her home in Ventura County to join the crowd of Proposition 8 supporters, said she there for the "approximately 7 million voters whose voices need to be heard."
"I'm concerned about the justices, the weight of our vote and the weight of our decision," Tibbits said.
Gay marriage supporter Chris Bospuz, 23, said after the hearing: "I was pretty disheartened at the beginning, but I'm optimistic," he said. "It's a civil right and they can't just strip away civil rights."
