The prospects of same-sex marriage in California grew dimmer Thursday, when two Supreme Court justices who helped create the right for gays to marry in last year's historic decision expressed deep reservations about attempts to strike down a statewide referendum passed last fall to ban the practice. "You would have us choose between these two rights: the inalienable right to marry and the right of the people to change their constitution," said Justice Joyce L. Kennard, one of those two key judges. "You ask us to willy-nilly disregard the right of the people to change the constitution of the state of California. But all political power is inherent in the people of California." (See the top 10 ballot measures.)
The justices created the right to marry same-sex partners in California last year in a sweeping 4-3 decision. But in November, Californians went to the polls to amend the constitution to prohibit gay marriage. The amendment passed with 52% of the vote, but protests spread throughout the state in the days immediately after the vote. Several groups sued, arguing that stripping away the right to marriage amounted to such a serious change to the constitution that it should require more than a simple majority vote. (Read "A Brief History of Gay Marriage.")
Chief Justice Ronald George, the Republican justice who authored last year's opinion, appeared to agree that the barrier to constitutional amendments is far too low in California, noting that the Golden State has seen fit to amend its constitution no fewer than 500 times since 1911, while the U.S. Constitution has survived more than 200 years with just 27 amendments. But like Kennard, who had also voted with the majority to establish the right to gay marriage last year, George seemed to suggest Thursday that until the people of California raise the barrier for amendments, the court has little power to overturn their decisions.
That line of thinking was exactly what Kenneth Starr, the former Whitewater independent counsel who is now dean of Pepperdine Law School, had in mind when it was his turn to argue against overturning Prop. 8. Starr is serving as counsel to supporters of traditional marriage who received permission to argue on the initiative's behalf when it became clear that Attorney General Jerry Brown would most likely support efforts to strike down Prop. 8. "The issue before this iconic court has to do with the sovereignty of the people of California," Starr said. "We have heard a lot about individual rights and suspect classification ... But the Attorney General's office points to one inalienable right, the right to marry. But the people, too, have an inalienable right to change their constitution." (Read "From Gay Marriage's Ground Zero.")
When questioned, Starr conceded that his view of the state constitution would permit a simple majority of the voters to repeal any right enshrined in the state constitution, including the right to free speech or a prohibition against racial discrimination. "While it is unthinkable," he said, "... the people do have the raw power" to make whatever changes they desire, so long as they do not alter the basic structure of government. Changes that violate the U.S. Constitution, he added, would of course be struck down on federal grounds, but so far no federal appellate court has ruled that the U.S. constitution protects gay marriage.
The court can take up to 90 more days to issue its ruling, and questions during oral arguments do not always accurately reflect the thinking of individual justices. But Thursday's three-hour session did indicate that the primary argument advanced against Prop. 8 faces big hurdles in the court. Even the lawyers who are asking the court to declare Prop. 8 invalid because it is more like a constitutional revision which would require approval by lawmakers as well as by voters conceded, when asked by the court, that there is essentially no precedent in the court's history that directly supports their position. "We have a pretty well established body of law pertaining to what is and what is not a revision, and those decisions do not give strong support to your position that the people couldn't do when they did when they invalidated or disagreed with one aspect of the marriage decision," Kennard said. "Our past decisional law doesn't support the argument that the people couldn't do what they did." (Read "Activists Rethink Their Gay-Marriage Tactics.")
But a second argument, advanced by Attorney General Brown, is that the most important rights found in the constitution are inalienable and not subject to changes by a simple vote of the majority, because they are too important. That argument, too, seemed to suffer under scrutiny from some justices, who asked how the court was supposed to figure out how to draw the line between rights that can't be taken away and those that are subject to amendment.
The hearings did offer hope for the 18,000 or so same-sex couples who have already married. Starr argued that the language in Prop. 8 means that no gay marriages, even those performed when the practice was legal, can be recognized by state authorities. That argument brought a bristling reply from several justices, who said such a ruling would violate basic notions of fairness. Still, such opposition doesn't guarantee that the court won't strike down the existing marriages. Given that three justices voted against gay marriage in the first place, it may be that all Starr needs to win on that point is to convince a single justice that Prop. 8 should be applied retroactively.