By Howard Mintz - San Jose Mercury News
The California Supreme Court will try again this week to settle the states intractable legal conflict over gay marriage.
In a test that will put the justices back on the political hot seat the Supreme Court on Thursday will consider legal arguments over the validity of Proposition 8. The ballot measure approved by voters last fall restored a ban on same-sex marriage and erased last years historic ruling upholding the right of gay and lesbian couples to wed.
The Supreme Court which has 90 days to rule will hear three hours of arguments from lawyers representing all corners of the debate which has generated an avalanche of legal briefs from groups aligned for and against gay marriage.
At stake will be the ability of same-sex couples to resume marrying in California as well as the fate of an estimated 18000 gay and lesbian couples who got their marriage licenses before the Proposition 8 gay marriage ban was passed by a 52 to 48 percent margin. The Supreme Court will rule on whether those marriages remain valid.
Divided decision
The Supreme Court was sharply divided 4-3 when it ruled in favor of gay marriage last year and most legal experts predict another close vote. But this time the case before the justices raises different issues that make it tougher to overturn the existing law. Now the court will be reviewing a voter-approved change to the California Constitution that trumped their own ruling last May finding
a ban on gay marriage to be unconstitutional.
Itll be a surprise if the California Supreme Court isnt legally humbled by the constitutional amendment said Marc Spindleman an Ohio State University law professor following gay marriage issues around the country.
Civil rights groups same-sex couples and a number of local governments including San Francisco and Santa Clara counties sued to overturn Proposition 8 arguing that the measure amounted to an improper method of amending the state constitution and that it targets a minority group by depriving them of the equal right to marry.
Attorney General Jerry Brown in a nearly unprecedented move for the states top lawyer refused to defend the voter-backed ballot measure and threw his support behind civil rights lawyers.
Brown goes even further than civil rights groups contending that voters cannot strip away an existing fundamental right and he maintains there is now an equal right to marry because of the Supreme Courts ruling last year.
That precedent provides the guidance for this case as well Brown said in an interview. Its the same language cast in a different wrapper called an amendment.
But Proposition 8 backers urged the justices to reject Browns reasoning saying in briefs that it would provoke a constitutional revolution if a court could overrule voters who choose to amend their own constitution. Kenneth Starr the former Clinton-era independent counsel and now dean of the Pepperdine University Law School will argue the case for the Proposition 8 side. He declined comment for this story.
However Andrew Pugno a lead lawyer for Proposition 8 said the Supreme Court has a very different circumstance to review than the last case which involved a restriction in the family law code and another ballot measure Proposition 22 that did not involve changing the state constitution.
Now the voters have changed the constitution itself in a way that reverses the Supreme Courts ruling Pugno said.
Still married?
The Supreme Court has been in similar positions with other ballot measures including in 1978 when voters amended the state constitution to restore the death penalty after Chief Justice Rose Birds court struck it down. But while the court has typically deferred to voters in rare cases involving constitutional amendments civil rights lawyers say the gay marriage circumstance is very different.
The majority cannot selectively deny a fundamental right to any one group said Shannon Minter legal director for the National Center for Lesbian Rights. Thats a bedrock principle of our democracy.
Even if the Supreme Court upholds Proposition 8 there is a vital lingering question as to whether thousands of existing same-sex marriages would be nullified.
Gay marriage opponents say if the constitutional ban is upheld they dont envision those marriages remaining valid. But civil rights lawyers insist courts seldom take away existing rights retroactively. And most legal experts agree with that position raising the prospect that California could have two classes of same-sex couples: those who married before Proposition 8 was passed and those who will be unable to marry in the future.
Never before has a court applied a subsequent change in the qualifications for marriage to retroactively invalidate a marriage that was validly entered into before the effective date of that change in the law a group of leading law professors wrote in a brief. It is simply unprecedented.
Nullifying voters
In the end the justices must determine how much power they have to override the voters. In last Mays ruling the three dissenting justices said the Supreme Court should not overturn a gay marriage ban put in place by voters and legislators. Legal experts say that sentiment could be even more difficult to overcome now that voters approved Proposition 8 the law being challenged in the current case.
It sets the upper boundary on the number of votes there are to overturn Prop. 8 said Brad Sears a UCLA law professor and expert on sexual orientation law. The heart of this decision is really about the separation of powers in our state government. We have an open legal question here.
