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.

Can Court 'Willy-Nilly' Disregard Public Ballot?

At least one justice expressed some hesitancy to overturn the will of the voters.

"The state constitution talks about 'the great power of the people' and their right to amend the guiding principles," Justice Joyce L. Kennard said. "As judges, our power is very limited. We would like to hear from you why this court can willy-nilly disregard the will of the people to change the constitution."

The hearing was broadcast live on a state-operated cable TV channel and streamed live on the Internet. It was also displayed on a huge JumboTron video screen in downtown San Francisco's Civic Center Plaza, where people on both sides of the issue gathered to watch and held signs lobbying the justices to take their side.

Dana Tibbits, who drove 400 miles from her home in Ventura County to join the crowd of Proposition 8 supporters, told ABC's KGO-TV she was there for the "approximately 7 million voters whose voices need to be heard."

"I'm concerned about the justices, the weight of our vote and the weight of our decision," Tibbits said.

On the other side, Ronald Cruz, 31, a law student at UC Berkeley, told KGO-TV he wanted the measure overturned.

"The rallies and marches make it clear we are not taking second-class treatment anymore and that is what drives court decisions on civil rights," he said.

The court is due to issue a ruling within 90 days of today's proceedings.

Chief Justice Ronald M. George said that the court's decision on whether Proposition 8 deprives gay citizens of an inalienable right "is going to have implications for future efforts if everything that could conceivably be characterized as an inalienable right is outside the people's initiative power."

Along with the constitutionality arguments, the court also heard opinions on whether the 18,000 same-sex marriages performed before the November election should remain legally recognized even if the justices uphold Proposition 8.

Activist: Gay Marriage Foes 'Clouding the Issue'

In an interview on ABC News Now, author and gay rights activist Cleve Jones admitted Proposition 8 opponents, "those who favor full equality for all citizens [and] equal protection under the law, didn't run a very effective campaign" before the November election.

"I think the opposition did a very good job of clouding the issue and trying to make it about sex or religion or children," he added.

But he said, "I don't think that we've taken a giant step backwards. I think history is on our side."

Jones added that "regardless of the court's decision, it's very important for people to understand that the majority of the rights that heterosexual people are granted through marriage will still be denied to gay people. So those who are in same-sex relationships or married, who have been married in Massachusetts and in Connecticut and even those marriages that were performed in California, they're still second class. They don't have the most important rights, which, of course, are determined by the federal government, not the states. I'm talking particularly about Social Security."