Gay Marriage Showdown in California

March 5, 2009 — -- Hundreds gathered before a giant TV screen outside a San Francisco courthouse today to watch as the seven justices of the California Supreme Court heard arguments for and against the validity of the state's voter-imposed ban on same-sex marriage.

Gay rights groups, couples and more than a dozen local governments are asking the court to strike down Proposition 8, the ballot initiative passed by voters on Election Day that declared that only marriage between a man and woman is valid or recognized under California's constitution.

They argue the gay marriage ban is a drastic change to the constitution that deprives a minority of fundamental rights and therefore exceeds the power of initiatives.

"What Proposition 8 accomplishes, if it were upheld by this court," Shannon P. Minter, lead counsel for those petitioning the court to invalidate Proposition 8, told the justices, "is to establish the constitutional principle that a majority can take away a fundamental right from a group defined as a suspect class" that has already suffered a history of discrimination.

Proposition 8 opponents have the support of Gov. Arnold Schwarzenegger and both houses of the California State Legislature, which passed nonbinding resolutions this week calling the initiative unconstitutional.

But Proposition 8's sponsors claim voters have the right to amend the constitution by initiative and that it would be a miscarriage of justice for the court to overturn the results of a fair election.

Former Whitewater special prosecutor Kenneth M. Starr, representing the backers of Proposition 8, began his argument saying "the right of the people is inalienable to control their constitution through the initiative process."

Justice Ming W. Chin asked Starr if the people of California have the right to change their constitution in a way that violates the U.S. Constitution.

Starr referred to the late Justice Stanley Mosk, who called the re-institution of capital punishment "macabre."

"The people do have the raw power to define rights," Starr said.