California Court Weighing Gay Marriage Ban - NYTimes.com

California Court Weighing Gay Marriage Ban - NYTimes.com

By JOHN SCHWARTZ and JESSE McKINLEY

SAN FRANCISCO — In a bruising hearing, California’s Supreme Court justices seemed ready on Thursday to uphold the ban on same-sex marriage that was passed by the state’s voters in November.

But the justices, who ruled just last May that same-sex marriage is a constitutional right, also appeared reluctant to undo the 18,000 marriages conducted before the ban was passed.

The court has 90 days to issue a ruling in the case.

In their questions from the bench, the justices, particularly Joyce L. Kennard, strongly suggested that they did not want to second-guess the will of the voters. One theme that seemed to emerge from the questions was that same-sex couples could be granted the rights of married couples even if they are unable to call themselves married.

Although Justice Kennard had been part of the four-judge majority in last year’s case affirming same-sex marriage, she said from the bench that the state’s residents, in passing Proposition 8 with 52 percent of the vote, had not necessarily invalidated the entire decision.

The measure left intact, she said, the substantive rights that the court had granted same-sex couples. The biggest change, she argued, was “the label of marriage.”

Justice Kennard asked a lawyer opposing Proposition 8 a question that resonated in the hearing.

“Is it still your view,” she said, “that the sky has fallen in as a result of Proposition 8, and that gays and lesbians are left with nothing?”

The lawyer, Shannon Minter, the legal director of the National Center for Lesbian Rights, argued that if the court upheld Proposition 8, same-sex couples would have “our outsider status enshrined in our Constitution.” The right to marry, he said, was inalienable.

But Justice Kennard argued that the people’s right to alter their Constitution is inalienable as well.

“And what I’m picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people,” she said, clearly signaling her reluctance to do so.

Chief Justice Ronald M. George also appeared skeptical of the challengers, suggesting that what the opponents of the ban really wanted was to change the initiative process and make it harder to change the State Constitution. That, he said, was an issue to take up with the Legislature and not with the courts.

Only two justices, Carlos R. Moreno and Kathryn M. Werdegar, asked questions that indicated they would vote to overturn Proposition 8.

Nonetheless, Justice Kennard, who had sounded so supportive of the argument that voters could choose to take away a right, pushed back against the notion that Proposition 8 should invalidate the 18,000 marriages that had been legally approved before the vote. Without very explicit language in the law to that effect, she said, there was no evidence that the voters understood that thousands of people and their families “would, after passage of Proposition 8, be unmarried.” Several other justices made it clear they agreed.

Speaking for supporters of Proposition 8, Kenneth W. Starr, dean of the Pepperdine University School of Law and a former United States solicitor general, asked that he be allowed to “respectfully disagree” with that interpretation.

Mr. Starr said that under the California system, the fairness of an initiative is not the most important issue. “The people are sovereign — and can do unwise things,” he said. Same-sex couples, he argued, would still have substantial legal protections.

Opponents of Proposition 8 argued that the voters had gone too far in taking away the right to marry from gay men and lesbians, who had been identified by the court in May’s ruling as being historically subjected to prejudice. Any effort to take a fundamental right like marriage away from such a group must receive the highest level of judicial scrutiny, opponents of the ban said. Mr. Minter said the initiative should be considered a revision to the State Constitution and not just an amendment to it. Revisions require action by the Legislature or a constitutional convention.

Michael Maroko, a Los Angeles lawyer representing gay couples, told the court that the state should treat its citizens equally, and if same-sex couples could not use the word “marriage,” no one else married under the auspices of the state should, either. “If it’s not going to be equal, then get out of the marriage business,” he said.

As Thursday’s arguments approached, protests and vigils were held across the state, and the hearings were carried live on a giant screen outside the Earl Warren Building, where the case was being heard, and online. Hundreds of supporters and opponents of the initiative gathered on the courthouse steps bearing signs, banners and a sense of tense anticipation.

“We knew we had to be here to see it with our own eyes,” said Katherine Stoner, 61, who had traveled from Monterey with her partner of 34 years, Michelle Welsh.

Another, smaller group of same-sex marriage opponents held signs with messages like “Gay = Pervert” and “A Moral Wrong Can’t Be a Civil Right.”

As the crowd filed out of the courthouse, Andrew P. Pugno, co-counsel for proponents of the ban, was upbeat. “We’ve been confident all along that Proposition 8 will be upheld,” he said. “We felt good coming in, and we felt good coming out.”

Meanwhile, Therese M. Stewart, the chief deputy city attorney of San Francisco, who had argued against the proposition in court, said that if the justices uphold Proposition 8, “we will go back to the ballot box, and we will eventually prevail.”