California Court to Weigh Gay Marriage Ban

March 5, 2009

SAN FRANCISCO — Under intense pressure from both sides in the debate over same-sex marriage, the California Supreme Court will hear arguments Thursday on the ballot initiative passed by voters last November that outlawed such unions.

On the eve of the hearing, opponents of Proposition 8 rallied Wednesday in San Francisco.

For opponents of the measure, Proposition 8, the three-hour hearing is a critical legal test. But it is also, they say, a prime moment to rally their forces and demonstrate resilience after a stinging election loss that many among them believe could have been avoided.

“It’s a need for the community to show that we will not be passive participants to our own struggle,” said Kate Kendell, executive director of the National Center for Lesbian Rights. “I think it goes to the heart of what we’ve seen since Nov. 5, and what we’ve come to appreciate as the critical importance of everyone stepping up and stepping out.”

To that end, Thursday’s hearing is being treated by some activists as a combination of election night and Super Bowl. In San Francisco, for example, Proposition 8 opponents have erected a Jumbotron screen in front of the courthouse for spectators unable to squeeze into the courtroom.

“This is our lives on the line,” said Molly McKay, media director of the volunteer group Marriage Equality USA. “We don’t want them to have to worry about getting in.”

Ms. McKay’s organization, one of several grass-roots groups that have taken a larger role in the debate on same-sex marriage since the election loss, also organized candlelight vigils around the state for Wednesday night. But more established gay rights groups like Equality California are using the hearing as a rallying point as well, having begun a television campaign on Tuesday with advertisements depicting the quest for same-sex marriage as part of a long-term civil rights campaign.

Supporters of Proposition 8, meanwhile, have taken a quieter tack. Frank Schubert, the campaign manager for Protect Marriage, the leading group behind the initiative, said supporters held a day of prayer on Sunday, asking that the justices “be granted wisdom and for our opponents to understand that our support of Proposition 8 is to affirm traditional marriage, not denigrate gays.”

Mr. Schubert also said his side had asked that supporters who choose to show up outside the courthouse on Thursday not provoke confrontations and not carry signs unless they bear positive language.

While the fall campaign was heated — and expensive, with each side spending more than $40 million — the hearing is bound to seem somewhat anticlimactic to many. The court will only hear oral arguments on Thursday, and has 90 days to come to a decision.

And for all the passion surrounding the issue of same-sex marriage, the question before the court is one that may seem technical, even dry: Does the initiative approved by Californians merely amend the State Constitution or, as gay rights groups hope the court will rule, revise it?

Under California law, an amendment is a matter that the state’s longstanding initiative process deals with routinely. A revision, however, entails a fundamental change to the Constitution, and requires approval of either two-thirds of each house in the Legislature or a constitutional convention. That could be much harder to achieve than passage in a referendum.

What elevates the ban on same-sex marriage to the level of a fundamental rewriting of the Constitution, opponents of Proposition 8 argue, is that it denies a right — the ability to marry — that the California Supreme Court earlier last year called inalienable. To take away that right now, they argue, would violate federal and state constitutional guarantees of equal treatment.

That court decision, in May, identified gay men and lesbians as a group that had historically suffered discrimination, and opened the door for some 18,000 same-sex couples to marry before Proposition 8 passed in November. The justices are also expected to rule on the validity of those marriages when they now decide the fate of the proposition.

Kenneth W. Starr, dean of the Pepperdine University School of Law and a former federal appeals judge and United States solicitor general, will argue before the justices on behalf of the measure’s backers. In a brief, Mr. Starr said efforts to overturn Proposition 8 ignored “the will of the people” expressed in an “open, fair election.”

But Shannon Minter, legal director of the National Center for Lesbian Rights, said that if a measure limiting what he described as the fundamental rights of gay people could be adopted by voter-approved amendment, then “any right can be taken away from any group” through a ballot measure. Mr. Minter will be Mr. Starr’s opponent at the hearing.

Andrew P. Pugno, a lawyer working with Mr. Starr on the case, disagreed with the notion that Proposition 8 altered “some solidly entrenched right.” He also said the case could put to the test the state’s entire initiative process, which has been used in the past to legislate matters as varied as property tax rates and a ban on affirmative action.

“If the court strikes down Proposition 8,” Mr. Pugno said, “the initiative process itself is put into doubt.”

The case has also taken on some curious political ramifications. After initially saying his office would protect the measure, California’s attorney general, Jerry Brown, a potential candidate for governor in 2010, declared that he would be unable to argue in favor of it.

Instead, Mr. Brown filed a brief last year arguing against it. To rule in favor of the measure, the brief maintained, would be to say that the California Constitution’s “foundational guarantee of individual rights is no guarantee at all.”