PROPOSITION 8, the ban on gay marriage in the state of California passed last November, looks increasingly likely to be upheld by the state’s supreme court.
The court, which had earlier last year declared the right of gays and lesbians to marry, strongly indicated on Thursday that it would uphold as valid the decision of voters to overrule it and restore the state’s previous ban on same-sex marriage.
However, the court also indicated it would allow same-sex couples who wed before the November election to remain legally married.
The hearing was a disappointment for gay rights lawyers, who hoped the same court majority that overturned the previous marriage ban last year would conclude that Proposition 8 was an impermissible constitutional revision.
Two members of that majority, including chief justice Ronald George, expressed deep scepticism regarding the gay rights lawyers’ arguments. In the absence of their votes against it, Proposition 8 appears almost certain to survive.
The other two justices who ruled in favour of marriage rights last year seemed more open to the revision challenge.
The court revealed no division on whether to uphold the marriages of an estimated 18,000 same-sex couples who wed before November. Even the court’s most conservative member said they married with the blessing of “the highest court of the state”. “How can we deny the validity of those marriages?” Judge Marvin Baxter asked.
The court’s ruling is due within 90 days. Gay marriage advocates have all but conceded defeat.
Kate Kendell, executive director of the US National Centre for Lesbian Rights, which represented some of the plaintiffs, acknowledged that the court had appeared sceptical over their arguments.
“I think conversations about going back to the ballot need to happen vigorously and strategically,” Ms Kendell said. “2010 would be the next state-wide ballot, and in campaign terms that is just around the corner.”
The Proposition 8 campaign followed the California supreme court’s landmark 4-3 ruling on May 15th, 2008, overturning a ban on same-sex marriage. Gay couples quickly lined up to marry, many of them from out of state.
Business in weddings was brisk until November 4th, when Proposition 8 passed with just 52 per cent of the vote.
Opponents and supporters of gay marriage flocked on Thursday to the state building where the California supreme court is housed, each side trying to drown out the other with chants.
Gay rights lawyers had argued that Proposition 8 removed a fundamental right from a minority that has suffered discrimination. As such, it revised the constitution, instead of merely amending it, they said. Revisions can be placed on the ballot only by a two-thirds vote of the legislature, or a constitutional convention.
Judge Joyce Kennard, traditionally a strong supporter of gay rights, repeatedly noted that Proposition 8 was a mere 14 words and simply took away the “label” of marriage. “I think what you are overlooking is the very broad powers of the people to amend the constitution,” she said. Judge George noted the California constitution had been amended more than 500 times, and asked whether the problem was that “it’s just too easy to amend the California constitution”.
Judge Ming Chin raised an argument from some scholars that the court could uphold Proposition 8 but require the state to replace the term marriage with another, such as civil union. “Is that a viable solution and is that really within the province of this court?” Judge Chin asked sceptically.
Michael Maroko, representing one of the same-sex couples, was blunt. “If you’re in the marriage business, do it equally.” If same- sex couples cannot marry, “then straight couples don’t have that right either”, he insisted. – (LA Times-Washington Post service)