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Same-sex marriage before California Supreme Court

The court must rule in 90 days on the legality of Proposition 8, which bans same-sex marriage.

By Daniel B. WoodStaff writer of The Christian Science Monitor / March 6, 2009

Supporting and opposing views converged during a demonstration on the issue of Proposition 8 in San Francisco, Thursday.

Marcio Jose Sanchez/AP


Los Angeles

With bus loads of supporters and protesters watching a live video feed outside the court building in downtown San Francisco, the state Supreme Court heard Thursday oral arguments challenging the legality of Proposition 8, the ballot initiative that state voters approved last November banning same-sex marriage.

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A central question the court faces is whether Proposition 8 amounts to a violation of human rights or falls within the limits of people's power to change the state's Constitution.

Other questions at stake: Does Proposition 8 constitute an amendment or a revision of the state Constitution (state legislature approval is required before significant revisions to the Constitution can go to the ballot)? And if the ballot measure stands, what would be the status of some 18,000 same-sex marriages already performed?

"The fundamental question that the court has to answer is just how far can the initiative process be used to change the California constitution and can it literally be used to take away any rights, no matter how fundamental," says David Cruz, professor of law at the University of Southern California (USC), Los Angeles, and a constitutional law expert.

The seven justices heard arguments in favor of overturning the measure from gay rights advocates as well as state attorney Jerry Brown's office, and from Pepperdine University Law School dean Kenneth Starr among others in favor of letting it stand.

The state attorney's office asked the court to invalidate the measure on the ground that certain fundamental rights, including the right to marry, are inalienable, and cannot be put up for a popular vote.

Mr. Starr, the former US independent counsel who headed an investigation that led to former President Bill Clinton's impeachment, argued that Proposition 8 doesn't revise the constitution or allow a majority to take rights away from same-sex couples because it leaves intact California's domestic partner laws.

Californians "will no doubt continue to debate the issue in terms of inalienable rights, justice, tradition and social welfare," Starr said. However, "the judiciary no longer has a role in determining the definition of marriage."

The justices challenged both sides.

"Proposition 8 only deprives same-sex couples of the nomenclature," said Associate Justice Kathryn Werdegard. "Why is that a revision rather than a mere amendment?"