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Calif. Supreme Court to Rule on Proposition 8 Challenge

March 5, 2009 at 12:00 AM EDT
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orrespondent Spencer Michels describes the scene inside and outside the courtroom at Thursday's California Supreme Court hearing on the legality of the state's same-sex marriage ban.
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SPENCER MICHELS, correspondent: The stakes were high this morning as hundreds of people on both sides of the same-sex marriage debate gathered outside the California Supreme Court in San Francisco.

Today’s proceedings, which were broadcast live, focused on three lawsuits seeking to overturn Proposition 8, a constitutional amendment which defines marriage as between a man and a woman. Californians voted for the measure, 52 percent to 48 percent, last November.

California voters had once before, in the year 2000, passed a ballot measure designed to ban gay marriage. But in May of 2008, the California Supreme Court declared that law unconstitutional because it failed to provide equal protection for gays and lesbians.

That opened the door for same-sex couples to legally marry in the state; 18,000 tied the knot between May and November of last year.

Opponents of same-sex marriage responded with Proposition 8, this time a change to the state constitution. Its passing not only halted the new weddings, but it put the status of the 18,000 previously married couples into question.

Last night, advocates of same-sex marriage staged a vigil, marching from the Castro District, where many gays live, to the California Supreme Court.

Among those protesting were Jennie Olsen and Julie Dorf, a married lesbian couple, with their two daughters. Before the election, their 5-year-old daughter Sylvie worried that Prop 8 would split up their family.

JENNIE OLSEN: Sylvie said to me, just very casually, “So, if Prop 8 wins, who do I go with, Mommy Julie or Mommy Jennie?”

SPENCER MICHELS: What do you want to see the California Supreme Court do at this point?

JULIE DORF: Well, I mean, we hope that, at a minimum, they uphold the marriages that have already occurred. And more than that, I think it’s time to say measures that are specifically taking rights away from minorities should not be allowed to be voted upon by the Californian people.

SPENCER MICHELS: Sponsors of Proposition 8 argue that a majority of voters elected to ban same-sex marriage and the will of the people cannot be denied. Frank Schubert was campaign manager for Yes on 8.

FRANK SCHUBERT, campaign manager, Project Marriage: The people are the supreme power in California. They created the judiciary, they created the Legislature, and they control the Constitution, and they have decided that marriage should be between a man and a woman.

SPENCER MICHELS: Their case was argued in court by Kenneth Starr, the former prosecutor in the impeachment of President Bill Clinton.

KENNETH STARR, former impeachment prosecutor: We want to restore the traditional definition that has been in place since this state was founded. And almost every other court in the country has agreed with the rationality of that.

SPENCER MICHELS: Proponents of same-sex marriage argued that Proposition 8 did not go through the correct procedures to amend the state’s constitution. University of California law professor Vikram Amar explained.

VIKRAM AMAR, University of California, Davis: The challengers to Proposition 8 argue that the change that it makes is so fundamental that it ought to be considered a revision, not an amendment. And because the Legislature did not initiate Proposition 8, then it’s invalid, because it didn’t go through the right procedure.

SPENCER MICHELS: Such revisions are very rare. Attorney Shannon Minter represented same-sex couples in court.

SHANNON MINTER, attorney: The core of our argument is that a simple majority cannot be permitted to take away rights from a historically disadvantaged minority.

SPENCER MICHELS: But Justice Joyce Kennard was skeptical of that argument.

JUSTICE JOYCE LUTHER KENNARD: The people are those that have created the Constitution. And I think what you’re overlooking is the very broad powers of the people to amend by initiative the Constitution.

SPENCER MICHELS: This week, the state legislature passed a resolution siding with opponents of Proposition 8. Gay activist and state Assemblyman Tom Ammiano argued that marriage for gays and lesbians is a civil right.

TOM AMMIANO, state assemblyman: The Constitution has to recognize it may make you uncomfortable, it may make you want to move away, but that doesn’t make it right.

SPENCER MICHELS: But George Niederauer, the Catholic archbishop of San Francisco, who worked hard to get Prop 8 passed, sees things differently.

GEORGE NIEDERAUER, archbishop of San Francisco: California’s been a state for nearly 160 years. For all of that time, until May of this year, there was no civil right in California for same-sex couples to marry.

SPENCER MICHELS: Despite Prop 8′s passage, the closeness of the vote and public opinion polls suggest the trend is in favor of those supporting same-sex marriage.
Law Professor Vikram Amar says that’s a fact the California Supreme Court may take note of, a court that 50 years ago struck down a ban on interracial marriage nearly two decades before the U.S. Supreme Court did.

VIKRAM AMAR: When the courts banned racial segregation in schools or eliminated barriers to interracial marriage, that might have seemed a little aggressive at the time, but within a generation Americans broadly rallied around that and today we take it for granted.

SPENCER MICHELS: Nonetheless, some legal scholars say the Supreme Court may be reluctant to overturn the vote of the people. A decision on the case is expected within 90 days.