Calif. high court weighs gay marriage ban

[March 06, 2009]  SAN FRANCISCO (AP) -- The mood was somber among gay rights supporters after a bruising, three-hour hearing before the justices of California's highest court, who expressed considerable skepticism at the idea of overturning the state's voter-approved ban on same-sex marriage.

Thursday's arguments pitted the right of the people to change their constitution against the right to wed. The California Supreme Court's seven justices indicated a wariness to override the will of voters, who approved Proposition 8 in November -- 4 1/2 months after the same court had ruled 4-3 to legalize gay marriage.

Couples like Chloe Harris, 28, and Frankie Frankeny, 42, who married during the 4 1/2-months same-sex marriage was legal, said they were disheartened by the tone of the hearing and not very hopeful the justices would rule in their favor.

"We don't go vote on anyone else's rights," Frankeny said. "It's so demeaning."

Attorneys for same-sex couples took a more measured stance.

"I think they are struggling with the issues," said Jennifer Pizer, of the gay rights group Lambda Legal. "It's hard to read the tea leaves."

Gay rights advocates -- including same-sex couples, local governments led by San Francisco and civil rights groups -- argued Proposition 8 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.

But Associate Justices Joyce Kennard, Marvin Baxter and Ming Chin noted that voters successfully overturned a 1972 Supreme Court ruling that struck down the death penalty as cruel and unusual punishment. When the measure was challenged, the court upheld it as a properly enacted amendment.

"It would appear to me that life is, at least in my view, a fundamental right," Kennard said. "The court said that particular initiative restoring the death penalty in California was not a revision."

To same-sex marriage supporters listening to the arguments, Justice Kennard's outspoken wariness proved particularly unsettling. Just 10 months ago, she was part of the court majority that held that prohibiting same-sex marriages violated the civil rights of gays.

Yet Kennard made it clear Thursday that her position in last year's gay marriage ruling would have no bearing on how she rules this time around. She repeatedly pointed to the public's "very, very broad, well-wrought" authority to amend the state's governing framework at the ballot box.

"It appears to me that what some of these briefs have been trying to get across is that those of us who were in the majority in the marriage cases last year would of course have to agree that Proposition 8 is invalid," she said. "I don't see it that way."

Chief Justice Ronald 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 voters their 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."

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.

"We are asking you simply to stay the jurisprudencial course, not to stray on a new course," Starr said.

Associate Justice Kathryn Werdegar, however, felt compelled to point out that none of the previous Supreme Court cases that dealt with the amendment-versus-revision question in the context of minority rights.

Minutes into Thursday's proceedings, the justices peppered a lawyer representing unwed same-sex couples with tough questions on why Proposition 8 represents 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?" Kennard asked.

"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.

In an unusual move, California Attorney General Jerry Brown sided with same-sex marriage advocates and refused to defend Proposition 8, which narrowly passed with 52 percent of the vote.

Arguing on Brown's behalf, Senior Assistant Attorney General Christopher Krueger told the justices that prohibiting gays and lesbians to marry infringes on "inalienable" rights to liberty and privacy.

The court also heard arguments on how Proposition 8, if upheld, affects the 18,000 same-sex marriages performed before it passed. Many of the justices did appear reluctant to invalidate the existing marriages.

"Is that really fair to the people who depended on what this court said, upended their lives ... to throw that out?" asked Justice Chin.

Starr, the dean of Pepperdine University law school, replied that the married couples had to have known "there was a swirl of uncertainty" surrounding their unions.

George said if there was indeed uncertainty, the benefit of the doubt should go the newlyweds.

Outside the courthouse, thousands of people chanted slogans and waved placards, with many watching the proceedings on a giant television screen erected across the street in front of San Francisco City Hall. Demonstrators were evenly split over the gay marriage issue and took turns drowning out each others chants after the hearing.

Robin Tyler, who along with her wife, Diane Olson, brought one of the challenges heard by the justices, said afterward that gay and lesbians cannot afford to get discouraged, no matter how the court rules.

"If this court rules to uphold Proposition 8, there will be a million of us on the streets marching," Tyler said. "We are not going away. We will not be invisible. We have had it."

The Supreme Court has 90 days to issue a ruling.

[Associated Press; By LISA LEFF and PAUL ELIAS]

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