Local News

SAN FRANCISCO (CBS 5 / AP / BCN) ― With thousands chanting slogans and waving placards outside, a majority of California Supreme Court justices seemed inclined at a hearing Thursday to uphold Proposition 8, the state's same-sex marriage ban.

At the same time, the court appeared likely to rule that 18,000 gay and lesbian marriages performed before state voters approved the initiative on Nov. 4 can remain in place.

During the hearing inside San Francisco's State Building, the high court was asked to weigh whether the electorate's decision to ban gay marriage was a denial of fundamental rights or within what one justice called the people's "very broad powers" to amend the state constitution. 

The justices skeptically grilled and quizzed lawyers seeking to overturn Prop. 8 who claimed that it was not within the power of voters alone to amend the constitution.

The attorneys for same-sex couples also sought to persuade the court that the public's right to change the constitution doesn't extend to depriving an unpopular minority of the right to wed.

But the court's seven justices indicated a wariness to override what Associate Justice Joyce Kennard, who could be the key vote on the validity of Proposition 8, called the people's "very, very broad, well-wrought" authority to amend the state's governing framework at the ballot box.

"We are dealing with the power of the people -- an inalienable right to amend the constitution as they like," she explained. 

"What I am picking up from the oral arguments is that this court should willy-nilly disregard the will of the people," continued Kennard, who just 10 months ago voted that prohibiting same-sex marriages violated the civil rights of gays. "The people established the constitution; as judges, our power is very limited."

The justices heard three hours of arguments on a trio of lawsuits challenging the gay marriage ban, known as Proposition 8, which was approved in November with 52 percent of the vote. It effectively reversed a 4-3 state Supreme Court decision that had legalized gay marriage 4 1/2 months before the election.

After the hearing, couples like Chloe Harris, 28, and Frankie Frankeny, 42, who married during the 4 1/2-month window, said they were disheartened by the tone of the hearing and not very hopeful the justices would opt to strike down the ban.

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

Gay rights advocates including same-sex couples, local governments led by the city of San Francisco and civil rights groups argued the proposition was 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.

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 said that as a result of the initiative, "Today we have a different state Constitution." 

He noted that the California 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 California 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 said to 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."

"I think what you are overlooking is the very broad powers of the people to amend the constitution (currently)," Kennard told Marshall as he finished up his arguments. The groups Marshall represents argue that if voters can take the right to marry away from gays, they could also deny other minorities their rights.

A vote by Kennard, and possibly by George, to uphold Proposition 8 would be significant because they were part of the narrow four-member majority that found a constitutional right to gay marriage last May 15.

To same-sex marriage supporters listening to the arguments, Justice Kennard's skepticism to their side proved particularly unsettling. She 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.

"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."

There was also no indication that the three justices who voted against same-sex marriage last year — Associate Justices Marvin Baxter, Ming Chin and Carol Corrigan — favored striking down Proposition 8.

Corrigan asked, "Isn't the very essence of a democracy grounded in the right of people to govern themselves?"

Questions Emerge Over Fundamental Rights

Minutes into Thursday's proceedings, the justices peppered a lawyer representing unwed same-sex couples with tough questions on how Proposition 8 represents a denial of fundamental rights when same-sex couples still have the legal benefits of marriage through domestic partnerships.

George asked what rights were lost other than being able to label their union as a marriage.

"Relegating same-sex couples to domestic partnership does not provide them with everything but a word," replied Shannon Minter, legal director of the National Center for Lesbian Rights. "It puts those couples in a second-class status."

"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," Minter responded. 

Kennard, Baxter and Chin pointed out 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."

In an unusual move, California Attorney General Jerry Brown sided with same-sex marriage advocates and refused to defend Proposition 8.

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

Supporters of the gay marriage ban — represented by Kenneth Starr, the former Whitewater prosecutor who investigated President Bill Clinton — said it would be a reversal of the Supreme Court's own precedents for the court to overturn the results of a fair election.

He also argued that that California voters have an "inalienable right" to amend the constitution as long as it does not change the government's basic structure.

"There must be far-reaching change in the basic structure of government," said Starr, adding that there's a long line of previous state Supreme Court decisions supporting his position.

"We are asking you simply to stay the jurisprudencial course, not to stray on a new course," Starr said, noting that gay couples would still enjoy the full "panoply of rights" of domestic partners.

Associate Justice Kathryn Werdegar, however, felt compelled to point out that none of the previous state Supreme Court cases stated that something "must" alter the structure of government to qualify as a "revision." 

"This is a new day," she said.

Starr said he and Werdegar would have to "agree to disagree" and that "rights are important but they don't go to structure."

Werdegar also noted that none of the prior court decisions dealt with the amendment-versus-revision question in the context of minority rights.

But Starr told the court, "The people have the raw power to define these rights. Under our theory, the people are sovereign and they can do very unwise things that tug at equality principles."

Corrigan suggested a slightly different wording of that theory.

"If they decide a certain legal situation is wise," Corrigan said, "it is not for the judicial branch to say otherwise."

However, Chief Deputy San Francisco City Attorney Therese Stewart, representing the cities and counties in the case, argued, "The people themselves imposed limits. They made a distinction between the two types of processes (revision and amendment) for reworking their constitution." 

Impact On Existing Gay Marriages

The court also heard arguments on how Proposition 8, if upheld, affects the 18,000 marriages of same-sex couples performed before it passed.

On the discussion of whether the earlier marriages are valid, Associate Justice Carlos Moreno noted Proposition 8 states that marriage "is" limited to a man and a woman."

"I know people can argue over what 'is' means," Moreno said.

"The language has to be unequivocal," replied Stewart, arguing to overturn Proposition 8. "I don't think that's the case here."

Many of the justices, even those who did not approve same-sex marriage last year, appeared reluctant to retroactively 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.

Justice Baxter agreed by also asking, "When the state's highest court has declared a right to marry, under due process principles, how can one deny the validity of these marriages?"

Starr, the dean of Pepperdine law school and a former U.S. solicitor general, replied that the couples who got married 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.

George also 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 maintained the intent of Proposition 8 was to invalidate those marriages. Starr noted that the measure was drafted before the high court legalized gay marriage.

Crowds Watch Outside On Jumbotron

The large crowd outside the court building grew steadily throughout the hearing, with many watching the proceedings on a giant television screen erected across the street in Civic Plaza in front of San Francisco City Hall.

Demonstrators were evenly split over the gay marriage issue and took turns drowning out each others chants during the hearing. They held signs lobbying the justices to take their side.

The signs bore messages ranging from "We all deserve the freedom to marry -- love will prevail," to "A moral wrong is not a civil right" and "The people voted to protect children" as well as "Marriage Still = 1 Man + 1 Woman."

Dana Tibbits, who drove 400 miles from her home in Ventura County to join the crowd of Proposition 8 supporters, said she was there for the "approximately 7 million voters whose voices need to be heard."

"I'm concerned about the justices, the weight of our vote and the weight of our decision," Tibbits said.

On the other side, Ronald Cruz, 31, a law student at UC Berkeley, said he wanted the measure overturned.

"The rallies and marches make it clear we are not taking second class treatment anymore and that is what drives court decisions on civil rights," he said.

Ted Stodolka, of San Francisco, said he was "completely in support of gay marriage" and surveyed the Proposition 8 supporters with both amusement and irritation.

"I'm getting a bit angry watching all of it," he said. "I guess their intolerance for us is changing into me being a bit intolerant of them," he said, smiling. "I'm trying to control that."

"When you try to engage, they either won't or can't articulate why they feel Proposition 8 should stand," Stodolka said.

"I struggle a bit with my own demons, as well, growing up Catholic," he said. "But the one thing that is clear to me, when people try to keep an exclusive right to a group of people, that gets my hackles up."

"That's why I came out today," he said.

Despite the tension at times between Prop. 8 supporters and opponents, both sides crowded together in the plaza to watch the proceedings on the big screen. Before the broadcast, interfaith religious leaders spoke to the crowd.

Kenny Vick of San Francisco, a former U.S. Navy petty officer second class, held up a sign stating he had fought for the freedoms of America, and said those freedoms should include gay marriage.

Vick said he has been with his partner, Richard Griffin, for 22 years and camped out overnight to get married in San Francisco in 2004, only to have the marriage annulled months later.

Vick and Griffin married again on Aug. 22 after the Supreme Court decided to allow gays and lesbians to marry, and although he could have a second marriage invalidated depending on the court's decision, he seemed pleased with how the hearing was going.

"We remain hopefully optimistic," Vick said. "I think that the line of questioning has been very, very good."

He described the crowd as mostly "peaceful and respectful of each other."

Robin Tyler, who along with her wife, Diane Olson, brought one of the challenges heard by the justices, said afterward that gay people can not 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."
 
Ruling To Come Within 90 Days

The California Supreme Court now has 90 days to issue a ruling after hearing Thursday's oral arguments on Prop. 8.

At a news conference outside the State Building after the hearing, Minter expressed the fears of many in the gay community, saying, "We are concerned about what it would mean if a simple majority can take a fundamental right away from a historically disfavored minority."

"I hope the court will not basically sell our constitution down the river. I think that is what is at stake here," added Stewart. "(But) If it does, I'm confident we will go back to the ballot box."

Starr did not stay to talk to the media, but Andrew Pugno, another lawyer for the initiative sponsors, said he thought the hearing went well.

Pugno said, "I saw broad recognition by the court that the issue is the inalienable right of voters to amend the constitution."

(© CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed. The Associated Press and Bay City News contributed to this report.)