California Supreme Court signals mixed response to Proposition 8

(From the LA Times)

Reporting from San Francisco and Los Angeles -- The California Supreme Court appeared ready today to vote to uphold Proposition 8, the November ballot measure that banned gay marriage, but also seemed ready to decide unanimously to recognize existing same-sex marriages.

During a three-hour televised hearing in San Francisco, only two of the court's seven justices indicated a possible readiness to overturn the initiative. Chief Justice Ronald M. George noted that the court was following a different Constitution when it approved gay marriage last May.



* Rallies against Prop. 8 in Los Angeles and San Francisco
Photos: Rallies against Prop. 8...

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Times coverage of Proposition 8
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Live blog: Supreme Court hears Prop. 8 arguments

"Today we have a different state Constitution," he said.

Justice Joyce L. Kennard, who usually votes in favor of gay rights, voted against accepting the revision challenge to Proposition 8 but said she would hear arguments over the validity of existing same-sex marriages.

Kennard said during the hearing that "Prop. 8 did not take away the whole bundle of rights that this court articulated in the marriage case."

She said that "a very important holding" – giving sexual orientation the same constitutional status as race or gender – was not changed.

"Is it still your view that the sky has fallen and gays and lesbians are left with nothing?" she asked gay rights lawyers?

Kennard told them they also had the right to return to voters with their own initiative.

Even the court's conservatives appeared ready to vote to uphold existing marriages.

Justice Carol A. Corrigan, who voted against giving gays marriage rights last May, said couples who wed before the election relied on the law of the state at the time. Aren't those couples "entitled, if nothing else as a matter of equity, to rely on the law as it existed at the time they married?" she said.

George is often a swing vote on the court, sometimes siding with the court's conservative wing and other times, particularly in civil cases, voting with the more liberal justices.

The court is considering legal challenges to Proposition 8. If the court upholds the measure, it also must decide the fate of an estimated 18,000 same-sex marriages that took place before voters reinstated a marriage ban in November.

The state high court ruled 4-3 last May 15 that same-sex couples should be entitled to marry. George wrote the ruling, which was signed by Justices Joyce L. Kennard, Kathryn Mickle Werdegar and Carlos R. Moreno.

Justices Marvin R. Baxter, Ming W. Chin and Carol A. Corrigan voted against overturning the state's previous ban, arguing that the matter should be left to voters.

Six of the court's justices were appointed by Republican governors. Moreno is the only Democratic appointee.

After Proposition 8 was passed by voters in November, gay rights lawyers challenged the measure as an impermissible constitutional revision rather than a more limited amendment. Only Moreno voted to put the measure on hold pending a decision on the challenges.

The anti-Proposition 8 lawyers took the floor first.

Raymond C. Marshall of the Asian Pacific American Legal Center argued that nothing is more fundamental than the equal protection doctrine as he sought to cast Proposition 8 as an unconstitutional deprivation of the right to marry targeted against gays.

"This is the first time a ballot initiative will have been used to take away a fundamental right from a suspect class," he told the justices.

Michael Maroko, another anti-Proposition 8 speaker, told the justices that "if the state stuck its finger into the marriage business, it should do it equally. . . . If gay couples don't have the right to marry, straight couples shouldn't either."
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