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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.

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The initiative establishes that a majority of voters can take away rights of a minority, responded Shannon Minter, legal director of the National Center for Lesbian Rights. "The nomenclature is not the point," Minter said. "The point is equality."

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The court has to make its decision within 90 days, by June 3. By virtue of having called for oral arguments, the court likely has already formulated what is known as a "draft opinion."

"The justices might have to break new ground in interpreting the state constitution in order to classify Prop. 8 as either a minor amendment which can be adopted using the initiative process or a more profound revision … which cannot," said USC's Professor Cruz after watching the hearings.

That might be difficult since the distinction between a revision and amendment is not clear in the constitution, said John Matsusaka, president of the Referendum and Initiative Institute at USC.

"Proposition 8 is not materially different in form from dozens of other initiatives that have passed over the years," he said.

If the court agrees with the opponents of Proposition 8 that it is a revision rather than an amendment, people might see it "as a somewhat arbitrary change in jurisprudence, and we would see some erosion of confidence in the impartiality of the court," Mr. Matsusaka said, adding, "Those who support initiative rights should be very worried if the court adopts the "revision" argument because it would seem to open the door to challenging just about any successful initiative, and the standard for a successful challenge would be close to arbitrary."

The court will also decide whether to invalidate approximately 18,000 marriages performed before Proposition 8 passed.

At least three justices appeared skeptical that proposition could be applied retroactively. Justice Ronald George suggested the validity of the earlier marriages was purposely omitted from Proposition 8 as a campaign strategy to increase the likelihood of its passage.

Starr said the intent of Proposition 8 was to invalidate those marriages. The proposition was drafted before the high court legalized gay marriage on May 15, he said.

Four out of seven Supreme Court justices voted to legalize same-sex marriage in May, saying bans on same-sex marriages were unconstitutional civil rights violations. One of the four voted against hearing lawsuits seeking to overturn Proposition 8. That has led to speculation that there may be four votes against striking down Proposition 8.

California was the second state after Massachusetts to allow same-sex weddings.

Material from Associated Press was used in this report.