California‘s Proposition 8 may have passed in November, but the battle over same-sex marriage has moved back to the courts. This time, the constitutionality of November‘s amendment is on trial.
The California Supreme Court heard oral arguments for three cases working to get Prop 8 overturned last Thursday in San Francisco. Lawyers for two same-sex couples and the city and County of San Francisco had the opportunity to make their cases. Kenneth Starr, dean of the Pepperdine University Law School and former U.S. Solicitor General, argued in support of Prop 8.
The parties discussed whether the change to the constitution was an amendment, which can be done by popular vote, or a revision, which would require two-thirds majority in the legislature. They also debated whether Prop 8 violates separation of powers and what should happen to the marriages that were legal between the legalization of same-sex marriage in the summer and the recent ban.
This time the justices had to keep the new constitution in mind. Justice Joyce Kennard, who voted in support of same sex-marriage in the summer, repeatedly pointed out that this case was different.
“What about the inalienable right of the people to amend the constitution as they see fit?” Justice Joyce Kennard asked the San Francisco District Attorney‘s representative Christopher Krueger. “What I‘m picking up from the oral argument in this case is that the court should willy-nilly disregard the will of the people.“
Fifty-two percent of California‘s population voted in favor of Prop 8 in November, which states that only marriage between a man and a woman is valid and recognized in the state of California. Those who argued Prop 8 is unconstitutional argued the limitation of civil rights undercuts the foundation of the constitution.
“They have carved or attempted to carve an exception from equal protection,“ said Therese Stewart, who represented Prop 8 challenger Robin Tyler. “But the problem is a guarantee of equality that is subject to exceptions by the majority is no guarantee at all.“
Starr argued that the people, whether right or wrong, have the right to amend the constitution as they see fit.
“Under our theory the people are sovereign and they can do very unwise things and things that tug at the equality principle,“ Starr said. He asked the court to preserve this right.
Another argument against Prop 8 pointed to the majority‘s over-stepping of bounds. Shannon Minter, the legal representative for plaintiff Karen Strauss, said Prop 8 violates an important check of democracy.
“Our government is based on the principle not just of majority rule, but equally so on the limit that majorities must always respect minority rights,“ said Shannon Minter, the representative for Strauss.
Several justices asked if Prop 8 took away the many rights same-sex couples enjoyed before it passed, or if it was just the nomenclature that was being denied. In response, the attorneys said the denial of nomenclature creates an unfair separate status, but the rights that existed before had not in fact been removed.
Two professors on opposite sides of the Prop 8 debate offered another solution. They argued marriage should be relegated to religions and the state would only offer civil unions, no matter what genders are involved. Michael Maroko said that solution would satisfy the need for equality.
“If you‘re in the marriage business, do it equally,“ Maroko said. “If they‘re not going to be equal, then get out of the marriage business.“
As for the marriages that have occurred in the interim, several justices asked if the rulings of the court can‘t be trusted as law, what can be? Justice Carlos Moreno asked Starr, “Shouldn‘t the tie go to the runner?”
“Aren‘t those couples who relied on the constitutional pronouncement entitled … to rely on the pronouncement of this court at the time to take the action that they did?” Justice Carol Corrigan asked.
No decision was made but one can be expected in the next 90 days. The entire hearing can be found online at calchannel.com.
ELYSSA THOME can be reached at firstname.lastname@example.org.