By Lisa Keen
Thousands of people gathered outside the state supreme court building in San Francisco last Thursday, while inside, the court heard three hours of arguments on whether it should overturn Proposition 8, a constitutional amendment passed last November to ban gay marriage.
It's expected to be a tough call, especially for the pro-gay marriage side.
The key legal dispute before the court is whether Proposition 8 simply amended the state constitution or whether it significantly revised it. If the initiative amended the constitution, then it stands. But if the initiative revised the constitution, then it was improperly presented to voters and should, instead, have been approved by a two-thirds majority of the legislature.
Attorneys seeking to strike Proposition 8 argued the latter.
"This is the first time an initiative has been used to take away a fundamental right from a suspect class," said Ray Marshall, an California NAACP attorney representing organizations that had filed briefs asking the court o strike down Proposition 8.
But the seven justices – of which six are Republican appointees – seemed skeptical and had harsh questions for the attorneys seeking to strike down Proposition 8.
Associate Justice Joyce Kennard suggested the rights of gays in this instance are "similar to a group of criminal defendants" in California's death penalty history. Although the California Supreme Court ruled in 1976 that the death penalty was unconstitutional, the voters, by initiative in 1977, instituted an even broader death penalty law.
"It would appear to me that life – at least in my view – is a fundamental right and yet the people…restoring the death penalty was not considered a revision," said Kennard.
But Marshall countered. The death penalty, he said, was not reinstated for use against only one segment of criminal defendants, such as blacks, but against all criminal defendants in death penalty cases. And San Francisco's Chief Deputy City Attorney Therese Stewart said weighing more heavily on the people's right to pass an initiative when fundamental rights are at stake is like "protecting the moat while allowing the castle to burn down."
An awkward moment for pro-gay attorneys came during the arguments of Christopher Krueger, who was representing the California Attorney General's office. Attorney General Jerry Brown supports equal marriage rights and has said he believes Proposition 8 is unconstitutional; but Krueger was questioned heavily about Brown's disagreement that Proposition 8 is a revision.
"On which side are you?" asked Justice Kennard, bluntly, before Krueger had a chance to even begin his argument. Krueger acknowledged that he considered himself on the side of those challenging Proposition 8. And he tried to make the point that Proposition 8 is an "unprecedented kind of amendment" – that it took away a fundamental right without a compelling need to do so.
Kennard seemed to dismiss the argument as a "novel theory" and then the justices became mired in a discussion of what constitutes an "inalienable right" – something Krueger seemed to struggle with, too.
Kenneth Starr – best known as the independent counsel who investigated President Clinton's statements concerning an alleged affair with intern Monica Lewinsky – represented those interested in preserving Proposition 8. His point was simple: The voters have spoken.
"Rights are important," said Starr, "but they don't go to structure (of government). …Rights are ultimately defined by the people."
A second key issue in the case is what happens to the validity of the 18,000 or more marriage licenses issued to same-sex couples in California between June and November of last year, before Proposition 8 was passed and went into effect.
Even Kennard, who seemed reluctant to strike down the initiative, seemed even more reluctant to declare those licenses invalid.
Starr argued that the purpose of the initiative was clearly intended to invalidate all same-sex marriages, including those licensed during the June to November time period before Proposition 8 passed.
In fact, noted several justices, the 14 words of the initiative said just this: "Only marriage between a man and a woman is valid or recognized in California." Language interpreting the purpose as intending to apply the initiative to same-sex marriages "regardless of when or where they are performed" appeared only in the middle of a campaign position paper on the measure.
"It was buried," said Kennard. "One cannot expect voters to be familiar with language that is buried somewhere in a rebuttal argument."
There was extraordinary interest in today's oral argument – so much so that, in several California cities, including Los Angeles, San Francisco and West Hollywood, large jumbotron screens were erected outside and in large auditoriums to carry the broadcast of the courtroom live.
Gay civil rights attorneys watching the arguments hold out hope for a positive – if split – decision. Jon Davidson of Lambda Legal Defense and Education Fund said justices often "wrestle with one another and use the lawyers as spoilers" in deliberating over a case. The three hours set aside for this argument, he noted, "is extraordinarily unusual."
"They're taking the case very, very seriously."
Evan Wolfson, head of the national Freedom to Marry group, said he was "very disappointed" to hear some of the justices suggest the only loss for gay couples was use of the word "marriage." That, he said, "really minimizes the harm that exclusion from marriage and the selective denial of fundamental rights inflicts on gay people."
And it was a disappointment driven home by Shannon Minter, legal director for the National Center for Lesbian Rights, in his final remarks to the court. When Chief Justice Ronald George suggested the argument that gay couples were being denied rights was a bit disingenuous and may have been an argument chosen for strategic reasons, than legal ones, Minter was blunt.
"There is nothing strategic about the impact this decision will have on the lives of tens of thousands of same-sex couples and their children," said Minter. "Being relegated to a different legal status and singled out on the basis of a characteristic with no relationship to ability to participate marks (gay couples) as second-class citizens, and there is real harm done to their children. It will exacerbate exponentially the outsider status enshrined in our state constitution."
The California Supreme Court is also expected to issue its opinion within 90 days, or early June. Should it uphold Proposition 8, it is also expected to render an opinion on the legal status of the 18,000 or so marriage licenses that were issued to same-sex couples between May and November of last year, before Proposition 8 passed.
