California High Court to Rule Tuesday on Prop. 8

SAN FRANCISCO — The state Supreme Court will rule Tuesday on a challenge to Proposition 8, the ballot measure that reinstated California’s ban on same-sex marriage.

Two men walk hand in hand outside the California Supreme Court during a Proposition 8 demonstration in San Francisco, California in this file photo from March 5, 2009.REUTERS/Robert Galbraith

The court announced the impending decision today in lawsuits by same-sex couples and local governments, led by San Francisco, seeking to overturn the measure that 52 percent of California voters approved in November. If the court upholds the measure, it must also decide how the proposition affects the marriages of about 18,000 same-sex couples who wed before the Nov. 4 election.

Prop. 8 amended the state Constitution to declare that only marriage between a man and a woman is valid or recognized in California. It followed the court’s 4-3 ruling in May 2008 that declared the previous marriage law violated the rights of gays and lesbians to marry the person of their choice and discriminated on the basis of sexual orientation.

The ruling made California the second state, after Massachusetts, to legalize same-sex marriage. Since then, the Supreme Courts of Iowa and Connecticut have issued similar rulings, and legislatures in Vermont and Maine have also authorized same-sex weddings, although the Maine law faces a likely voter challenge. Another such law is pending in New Hampshire.

Plaintiffs in the California lawsuits argue that Prop. 8 made such fundamental changes to the rights guaranteed by the state Constitution that it amounted to a constitutional revision, not merely an amendment. A revision requires approval by two-thirds of the Legislature or by delegates to a new state constitutional convention to reach the ballot.

Attorney General Jerry Brown, who ordinarily defends state laws in the courts, joined the opponents of Prop. 8 and argued that the voters lack the power to eliminate “inalienable rights.”

Supporters of the measure argued that the voters have the right to amend their Constitution and are entitled to deference from the courts. Most of the justices appeared to agree at a hearing in March, and gay-rights advocates are already making tentative plans to return to the ballot in 2010 or 2012 if the court upholds Prop. 8.

At the same hearing, the justices’ questions seemed to indicate that the court was likely to uphold the 18,000 marriages that were conducted between mid-June 2008, when their ruling took effect, and the passage of Prop. 8.