Justices seem to be leaning in favor of Prop. 8
Thursday, March 5, 2009
(03-05) 17:10 PST SAN FRANCISCO -- The California Supreme Court, which last year declared the right of gays and lesbians to marry, appeared ready Thursday to uphold the voters' decision to overrule the court and restore the state's ban on same-sex marriage.
"There have been initiatives that have taken away rights from minorities by majority vote" and have been upheld by the courts, said Chief Justice Ronald George. "Isn't that the system we have to live with?"
George wrote the majority opinion in the court's 4-3 ruling in May striking down California's ban on same-sex marriages - which voters, in turn, reversed in November by approving Proposition 8, a constitutional amendment defining marriage as being only between a man and a woman.
Another member of last year's majority, Justice Joyce Kennard, said the challenge to Prop. 8 brought by advocates of same-sex marriage involved "a completely different issue" from the court's ruling that the marriage laws violated gays' and lesbians' rights to be treated equally and wed the partner of their choice.
"Here we are dealing with the power of the people, the inalienable right, to amend the Constitution," Kennard said. Speaking to a lawyer for same-sex couples, she said those who want to overturn the voters' decision "have the right to go to the people and present an initiative."
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'New to us'
But Justice Kathryn Mickle Werdegar said no previous case had presented the question of whether an initiative could be used to take away fundamental rights. "This is new to us," she said.
Starr also argued that Prop. 8 was a modest measure that left the rights of same-sex couples undisturbed under California's domestic-partner laws and other statutes banning discrimination based on sexual orientation.
The initiative "does not erode any of the bundle of rights that this state has very generously provided," he said, but merely "restores the traditional definition of marriage."
Several justices seemed to agree. Kennard said the voters arguably "took away the label of marriage, but ... left intact most of what this court declared," including unprecedented constitutional protections for gays and lesbians.
Christopher Krueger, a senior assistant in Attorney General Jerry Brown's office, also urged the court to overturn Prop. 8, saying the equality and individual liberty at the heart of last year's ruling were "inalienable rights" that should not be subject to a majority vote.
The court seemed unconvinced. Justice Carol Corrigan said Krueger appeared to be arguing that people may amend the Constitution "unless they do it in a way that this court doesn't like."
The lead case is Strauss vs. Horton, S168047.
E-mail Bob Egelko at email@example.com.Source