High-profile attorneys on both sides of the gay-marriage debate presented arguments Thursday during an appeal hearing for Proposition 8, the California initiative that in November reversed a prior court ruling and amended the state's constitution to ban gay marriage.
Pundits said most justices on the California Supreme Court on Thursday seemed prepared to uphold the initiative, but also appeared inclined to continue to recognize the 18,000 same-sex marriages that were certified during the short six-month period in which gay marriage was legal in California.
The voters' November decision overturned a 4-3 vote by the court in May deeming same-sex marriages to be legal. The Supreme Court has 90 days to issue a ruling.
One of the key aspects of the case centers on the meaning of the word "amend."
On Thursday, attorneys opposed to Prop 8 argued that the constitutional change -- which was approved by 52 percent of the voters -- amounts to a deprivation of fundamental rights for a minority group, and so should be considered a revision, not a mere amendment. This, they argued, would require undergoing a process that never happened: putting the proposed change up for approval by the Legislature.
"Prop 8 is not just about the rights of gays and lesbians to marry -- it denied minorities of fundamental rights," civil rights attorney Ray Marshall said during Thursday's proceedings. "For the first time, a ballot initiative has been used to take away a fundamental right from a suspect class."
This, he argued, violates the "equal protection" doctrine of the state's constitution.
Kenneth Starr, the head attorney on the other side of the debate, argued that precedent cases suggest that in order for a constitutional change to amount to a revision, it must somehow fundamentally change the structure of government, which the Prop 8 initiative does not do.
"Under our theory, the people are sovereign, and they can do very unwise things," said Starr, the dean of Pepperdine University's law school who was made famous by his investigation of President Clinton during the Monica Lewinsky scandal.
Lawyers on both sides of the debate were challenged aggressively by the seven justices.
Addressing Marshall's argument about fundamental rights for minorities, Associate Justice Carol Corrigan posited that Californians have stripped the rights of a disenfranchised group over the objection of the court before, citing the state's history with the death penalty.
"It appears to me that life, at least in my view, is a fundamental right," she said.
In 1978, the people of California approved an initiative that significantly broadened the death-penalty laws, despite a California Supreme Court ruling six years before declaring the death penalty to be cruel and unusual punishment. In an opinion upholding the people's decision, the late Justice Stanley Mosk said that although he found the voters' pleasure to be "callous" and "macabre," he had to concur that they had a right to enact the law.
Marshall countered by saying the death penalty applies to all people who commit heinous crimes, rather than targeting any specific group.
Meanwhile, some judges were skeptical of Starr's contention that a change to the constitution can be considered a revision only when it substantially alters the structure of government.
Associate Justice Kathryn Mickle Werdegar said while that might have been true to date, this particular case is unprecedented.
Chief Justice Ronald George challenged Starr with a hypothetical, asking whether a ballot measure to strip the "freedom of speech" article from the constitution would amount to a revision, even though it doesn't significantly alter the structure of government.
On this, Starr stuck to his premise: Even if their decisions are "callous" and "unenlightened," "the people do have the raw power" to define the rights of others.
The passage of Prop 8 sparked a furor across the country in which the exit polls were closely scrutinized to examine how different groups of people voted.
One of the more talked-about statistics is how an overwhelming proportion of black voters -- 70 percent -- approved the ballot measure. Meanwhile, 53 percent of Hispanic voters approved the measure, as did 49 percent of white voters.
In the May Supreme Court decision, Justices Ronald George, Joyce Kennard, Carlos Moreno and Kathryn Mickle Werdegar voted in favor of legalizing gay marriage; justices Marvin Baxter, Ming Chin and Carol Corrigan voted against.
