The California Supreme Court today appeared inclined to uphold Proposition 8, but showed obvious reluctance to void thousands of same-sex marriages already in place when voters restored a ban on gay marriage last fall.
During three hours of arguments in San Francisco, the justices peppered lawyers opposing Proposition 8 with questions that suggested they do not believe they have the authority to trump the will of the voters.
At the same time, even justices who voted against striking down California’s previous ban on gay marriage indicated that Proposition 8 should not wipe out an estimated 18,000 same-sex marriages that took place last year. Those couples mobilized around the state to obtain marriage licenses after the Supreme Court ruled last May that California’s prior ban on gay marriage was unconstitutional.
Proposition 8 amended the California Constitution to confine marriage to heterosexual couples, and its backers insist that the Supreme Court cannot overturn the will of the voters if they choose to change the state constitution.
During today’s arguments, the majority of the court remarked that the current case is very different than last year’s, primarily because the voters amended the constitution the court is bound to follow. “I stand by what I said in the marriage cases,” Justice Joyce Kennard, a key vote in legalizing gay marriage last year, said at one point. “But this case is different. We’re dealing with the power of the people.”
Justice Carol Corrigan, who dissented in last year’s decision, remained reluctant to interfere with voters and legislators. ”Is the essence of your argument that the people have the right to amend their constitution as long as it isn’t done in a way the Supreme Court doesn’t like?” Corrigan asked one civil rights lawyer.
Christoper Krueger, the senior deputy assistant attorney general who argued for Brown, had the roughest ride during arguments, as all of the justices appeared poised to reject his argument that last year’s ruling created an “inalienable right” for same-sex couples to wed. “What I’m picking up from the argument is that the court should willy, nilly disregard the will of the people,” Kennard told him. “As judges, our powers are limited.”
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