Gay Marriage on the Line at Calif. Prop. 8 Hearing

6 Mar 2009

By Kevin Canessa Jr.

When the California Supreme Court convenes today, it will be hearing a case it has already heard--and a case that has sparked a fierce national debate over whether gay marriage should be legal.

Opponents of Proposition 8 will get their day in court once again, as lawyers argue that it was unconstitutional to place a measure on the November ballot that effectively took away the rights that had been afforded a traditionally underrepresented (LGBT) community.

The California Supreme Court had granted gay couples the right to marry. In fact, more than 18,000 couples statewide were lawfully married. But voters overturned the court's decision when Prop. 8 passed in November by the slimmest of margins.

Today's hearing was brought about by the National Center for Lesbian Rights, Lambda Legal and the American Civil Liberties Union. They've petitioned the court on behalf of California Equality and six gay couples who want to marry. Additionally, the city and county of San Francisco, the city and county of Los Angeles, Santa Clara County and a private attorney also requested the case be heard.

According to The Los Angeles Times, it is likely the court has already made its decision on whether to uphold Prop. 8--and whether the thousands of gay couples who were married when it was legal to do so in the state can continue to be "married" in the eyes of the law.

The Times also says it's likely the majority opinion of the court has already drafted its decision on paper. The oral arguments, they say, rarely sway the court's holdings.

How Could the Court Rule?

There are numerous possible outcomes to the hearing, the announcement for which could be as long as 90 days from now. Experts have hypothesized everything to a complete reversal of the November vote to no action being taken at all by the court, the latter of which is most unlikely. Here's a look at some possible scenarios:

- The court throws out the November vote completely and without limitations. In order for this to happen, the court would need to vote, by a 4-3 margin at the very least, to declare that Proposition 8 was invalid--and that every human has the right to marry. Additionally, every gay couple that married prior to Prop. 8's passage would retain the right to marry.

- The court allows all who were married before Prop. 8's passage to remain legally partnered in the eyes of the law but redefines the term "marriage" as a religious, sacramental term. As such, gay and straight couples, in the eyes of the law, would no longer be "married"--they'd instead be something else, such as unioned or partnered.

- It is also possible, but highly unlikely, that the court would throw out any previous gay marriages and affirm the results of the Prop. 8 vote.

Ousting the Justices?

Still, one doesn't have to have a strong long-term memory to recall that Californians tend to be very impatient with their elected officials. Just ask former Gov. Gray Davis, who was recalled as California's governor in 2003--and who was then replaced by former movie star Arnold Schwarzenegger.

At times, Californians feel the same about their judges and have been known to recall judges seen as overly activist.

According to the Times, several conservative political-action groups have already threatened to go after any justice who votes in favor of overturning the results of the November Proposition 8 vote.

California's constitution makes it easier to recall its public officials--and judges--than it is in most other states.

Douglas Kmiec is a law professor at Pepperdine University in Malibu, Calif., and he told the Times that if the court overturns Proposition 8, "that is the short course toward impeachment" for the justices who vote in favor of overturning.

The three-hour hearing, which is expected to begin at 9 a.m. Pacific Standard Time, will be streamed online at

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