- The Washington Times - Friday, March 6, 2009

SAN FRANCISCO

As thousands demonstrated outside, California Supreme Court justices on Thursday weighed whether a voter decision to ban same-sex marriage was a denial of fundamental rights or within what one justice called the people’s “very broad powers” to amend the state constitution.

Gay rights advocates are urging the court to overturn the ban, approved in November as Proposition 8, on the grounds that it was put before voters improperly, or at least prematurely. Under state law, the Legislature must approve significant constitutional changes before they can go on the ballot.

Proposition 8’s sponsors, represented by Pepperdine law school dean and Whitewater scandal prosecutor Kenneth Starr, said it would be a miscarriage of justice for the court to overturn the results of a fair election.

The ballot initiative, which passed with 52 percent of the vote, changed the California Constitution to trump last year’s 4-3 Supreme Court decision to legalized gay marriage. The court found that denying same-sex couples the right to wed was an unconstitutional civil rights violation.

California voters first enacted a ban on gay marriage in 2000.

Minutes into the Thursday proceedings, the justices peppered lawyer Shannon Minter, arguing for same-sex couples, with tough questions on how the 14 words of Proposition 8 represent a denial of fundamental rights.

Chief Justice Ron George asked what rights were lost other than being able to call their union a marriage.

“Relegating same-sex couples to domestic partnership does not provide them with everything but a word,” Mr. Minter said. “It puts those couples in a second-class status.”

The Supreme Court heard arguments on three points:

c Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

c Does it violate the separation of powers doctrine under the California Constitution? c And, if it’s constitutional, does it affect the 18,000 marriages of same-sex couples performed in the 4 1/2 months before it passed?

Justice Joyce Kennard said the court was being asked to decide between two rights: the right of the people to change the constitution and the right to marry.

“And what I’m picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people,” she said.

Mr. Starr said Proposition 8 sought to restore the traditional definition of marriage and deny recognition of same-sex marriage. He said that gay couples still have the full “panoply of rights” of domestic partners.

He also argued that California voters have an “inalienable right” to amend the constitution and that taking away rights through the initiative process is not a revision that alters the structure of government. A revision to the constitution would have required legislative approval.

The Supreme Court’s seven justices have 90 days to issue a ruling.


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