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Prop. 8 hearing set to begin at 9 a.m.

Lanow_prop8ontrial_5 The California Supreme Court will hear arguments today on whether Proposition 8, the anti-gay-marriage initiative, should be upheld and, if so, whether the marriages of an estimated 18,000 same-sex couples should remain valid.

During a three-hour televised hearing this morning, the San Francisco-based high court will examine whether the November ballot measure was an impermissible constitutional revision or a more limited constitutional amendment.

The court will need to decide the fate of existing same-sex marriages only if it is prepared to uphold Proposition 8, which many legal analysts believe is likely.

The justices’ questions to lawyers often reveal how the court is leaning. Legal analysts will be carefully watching Chief Justice Ronald M. George, whose vote often determines whether the conservative or more liberal wing of the court prevails.

The state high court ruled 4 to 3 on May 15 that same-sex couples should be entitled to marry. George wrote the ruling, which was signed by Justices Joyce L. Kennard, Kathryn Mickle Werdegar and Carlos R. Moreno.

Justices Marvin R. Baxter, Ming W. Chin and Carol A. Corrigan voted against overturning the state’s previous ban on same-sex marriage, arguing that the matter should be left to voters.

After Proposition 8 passed, only Moreno voted to put the measure on hold pending a decision on the legal challenges. Kennard, who usually votes in favor of gay rights, voted against accepting the revision challenge to the proposition but said she would hear arguments over the validity of existing same-sex marriages.

Some legal analysts believe the vote signaled that Kennard did not believe the revision argument would prevail. Without her vote, the court would be unlikely to muster a majority for overturning the measure.

In addition to arguing that Proposition 8 was an illegal constitutional revision, gay rights lawyers contend that it usurped the authority of the courts.

The hearing, scheduled to start at 9 a.m. and end at noon, will be broadcast live on the California Channel and streamed on its website.

The California Constitution can be revised only during a constitutional convention or if two-thirds of the Legislature puts the proposal before voters and they approve it.

Atty. Gen. Jerry Brown’s office will ask the court to overturn the measure on other grounds. Brown has said Proposition 8 must be struck down because it eliminates an inalienable right without compelling reasons.

Both challenges are based on novel legal theories. Gay rights lawyers contend that the measure undermined the Constitution by permitting a simple majority to take away a fundamental right from a constitutionally protected minority that has suffered discrimination.

Legal analysts have said the court is more likely to uphold the existing same-sex marriages than to overturn Proposition 8.

The court received a record number of briefs in the case, with most outside groups calling on the court to overturn the measure.

Opponents of gay marriage have threatened a campaign to remove justices who vote to overturn the measure. If the court upholds the proposition, gay rights activists will consider asking voters to revisit the marriage question in an initiative on the 2010 ballot.

In previous cases, the court has defined a constitutional revision as a change in the fundamental structure or foundational power of state government or one that makes "far-reaching changes in the nature of our basic governmental plan."

Courts in Oregon and Alaska have rejected revision arguments in upholding anti-gay-marriage amendments, but those challenges did not involve marriage rights that the voters repealed.

The California Supreme Court has rejected at least six revision challenges of initiatives, including measures that reinstated the death penalty, changed tax law (Proposition 13) and imposed term limits.

In 1948, the court overturned an initiative as an illegal revision because it made a wide array of changes in the state Constitution. And in 1990, the court struck down an initiative that would have required the courts to apply federal law when determining the rights of criminal defendants.

The relatively few state high court decisions on revision challenges have never directly addressed whether the kind of change made by Proposition 8 could be considered a revision.

Six of the court’s justices were appointed by Republican governors. Moreno is the only Democratic appointee.

--Maura Dolan

Comments () | Archives (39)

Anybody reading this knows someone who has lost their health insurance, been ruined financially by an illness, lost a loved one to gun violence, spiraled into debt caring for an aging parent, can't find a job or has been layed off.

Nobody reading this has ever had a gay couple break into their house, tie them up and force them to watch homosexual sex. Doesn't happen, never happened, will never happen.

Gay marriage is not a threat to anybody.

Anybody know where to watch the hearings online?

I hope they do the right thing in honoring the people's will. If the people are being called "mob" for going to the polls and exercising their right to vote, then, consider all elections invalid. Same sex behavior was never a civil rights and I am totally surprised almost half the general public bought into this lie. They try to compare the case of homosexuality behavior with the case of an interracial relationship. What they failed to mentioned, the case that went to the surpreme court, was about a white man and a black woman(One Man/One Woman). How does this compare with same sex? The courts were correct to rule in favor of the interracial couple. This whole argument is really about right and wrong. Same sex behavior is wrong! Period! If this measure is overturned, expect your children to be taught in school that homosexuality is normal against your will.....Californian!

Here we go!!!! Crossing Fingers!

no equal rights...i'm not paying my state taxes any more!

CA grants the same rights to domestic partnerships as it does to marriage. This isn't civil rights, it's semantics.

I've been passionate about marriage equality for a long time now. In 2004, the Religious Institute developed its Open Letter to Religious Leaders on Marriage Equality, and more than 2200 ordained clergy endorsed it this summer. It lays out a theological framework for marriage that I strongly support, summed up in one line, "where there is love, the sacred is in our midst."

I believe in marriage equality because I believe that sexual and gender diversity is part of God's blessing to us -- because I believe we are all God's children -- because I believe in the inherent dignity and worth of all people, and that all of us should have the same civil rights.
Rev. Debra Haffner

You can watch the hearing as well as get the latest inside news on today's events at www.queerty.com

Mott, if you think majority rule should determine minority rights, I imagine you would be fine with living in a non-Christian country which decides Christians aren't allowed to marry, or a non-white majority country where whites aren't allowed to marry (or whatever race you are).

Also, why is same sex behavior wrong? You never mentioned your reasoning for that. I'm hoping your whole comment was a joke, but I fear it is not.

If gay/lesbians get married, I would like to have Polygamy re-legalized.
Main question here is,
Why do the gays not support other types of marriage? seems very selfish.
Polygamy should be allowed before gay's are allowed to get married.

The Court will probably act out of fear for their own jobs. To hell with a small minority. The people's right to hate must be upheld, and who wants to be unemployed in this economy?

Gay sex is immoral and wrong. Also, since California voted (AGAIN) to ban same sex marriage, I dont think its fair the six judges can overturn the voice of hundreds of thousands of people and say you cant vote that way (AGAIN) If we the people vote, we expect our vote to be counted, not overturned...

Sorry Ted, invalidating Prop 8 does threaten my religious freedom. The people that say it wont are either naive or disingenuous.

To Mott,

Let me repeat what Ted Salins just said. I couldn't have said it better :

"Anybody reading this knows someone who has lost their health insurance, been ruined financially by an illness, lost a loved one to gun violence, spiraled into debt caring for an aging parent, can't find a job or has been layed off.

Nobody reading this has ever had a gay couple break into their house, tie them up and force them to watch homosexual sex. Doesn't happen, never happened, will never happen.

Gay marriage is not a threat to anybody."

Mott, understand this : TIMES ARE CHANGING!

If you noticed, when the concept of allowing same-sex marriage was proposed the 1st time, it was voted down almost unanimously. But just recently, it was voted with a much much more narrower margin. See what's happening? The Public is slowly but surely coming to grips with the fact that Same-Sex couples are here to stay and so is homosexuality.

Now I'm as straight as they come but even I can see that - if not by 2010 then later - the general public is becoming more and more supportive of same-gender marriages and proposition 8 will end up being overturned SOONER rather than later.

And as far as your arguments go for Children being taught about Homosexuality? Answer me this : WHAT PRE-SCHOOL OR ELEMENTARY SCHOOL TEACHES CHILDREN ABOUT SEXUALITY AT ALL???? ARE YOU STUPID OR SOMETHING??

So-Called "Sex Education" isn't taught until HIGH SCHOOL, DORKWAD!! HIGH SCHOOL!! They're no longer "children" anymore by that time....

Smell that? That's the smell of your homophobic views, points, and case going up in smoke.


Please, God, if you are there, please let me stay married to my wonderful husband. Please guide the court to understand we should all be equal. I have never been happier in my life before we got married. Please Lord, please let me stay married.

CA grants the same rights to domestic partnerships as it does to marriage. This isn't civil rights, it's semantics.

Posted by: Ed | March 05, 2009 at 07:25 AM

>>> IF you believe that, then I guess you also believe in the tooth fairy and easter bunny.

Tot ally absurd thinking on your part.

Im still confused, How is homosexuality wrong? Just because some people don't like it doesn't make it wrong. I don't like eating fast food. Does that make it wrong? I don't think so. What it comes down to is discrimination. The yes on 8 people hate gays, but because of political correctness, they won't admit to it. It's okay I suppose. They hate, they will always hate and they can live their lives continuing to hate. Me, I prefer to live my life of acceptance and kindness. I'm rooting for the gays!

If this is upheld, then a precedent is set whereby a simple majority vote can wipe out a groups *equal* civil rights because they don't approve of someone's unintrusive and unharmful private life.

I propose that if this is upheld, the gay community has every right to help pass a proposition that states any marriage license provided to a couple consisting of one man and one woman must be applied for and provided in person between the hours of three thirty and four A.M. on Tuesdays and Wednesdays only. This doesn't take away anyone's rights, and hey, if there's a majority vote for it, it's the will of the people! Money will also be saved by cutting down the hours necessary to staff civil servants. Also, we will now call these types of unions "Heterosexual Confinement". Hey, what's in a name? It's all the same thing, right? Yay for mob democracy!

If this is considered unconstitutional as the gays claim, why was it on the ballot in the first place? Why ask Californians to vote, just to overturn the results of the majority?? All ths proposition did was cause havoc for Christians and other people who choose to live their life by God's law. Many churchgoers were attacked while they tried to attend services. If you want to have relations with your own type, go ahead, it's your business, just don't expect everyone to accept it and call it a marriage. We're allowing our great state to become a cesspool!!

Sebastian, how can you claim "the people have spoken." Yes on 8 lost that right when they went to the courts and tried to deny the people the right to know who contributed to the campaign - a measure the people voted on in the same manner as Prop 8. You are showing you hypocracy and revealing that you don't live by principles but by your wants and desires.
I grew up in the South, Yes on 8 says the same thing folks said about blacks in doctor's offices, on buses, in restaurants, in schools. You're living in your fear instead of living out of what is the just and right thing to do.

We live in a Constitutional Republic not a Democracy. This means that our laws are bound by our constitution. So anyone who wants to claim that "majority rules" is living in an elementary school, voting for who gets to eat more brownies. Wake up, America!

I am gay.

I love my partner.

We are married.

We are happy, we are employed, we have a house and dogs, and we are successful, contributing members of society. We are normal people.

Why are you all so afraid of us?

Mott: By the way, interracial marriage is a perfect comparison. People hounded and pounded that it was immoral, duh. That's how the law was in effect in the first place. We have the CHOICE to marry someone of a different race, no one says you have to fall in love with someone who's skin is different. This same argument applies to sex. Again, it was illegal to marry people of different races because of the Mott's in the world, hooting and hollering about what grown folks do. Wake up, you're sounding the same racist bells.

This challenge is only incidentally related to gay marriage. The real issue is whether people can be stripped of their fundamental rights by a simple majority vote.

Yes, I get that many of you don't like gay marriage. Do you like free speech? Freedom of religion? Do you really want to leave THOSE up to ballot initiative? If someone voted to take away your right to a fair trial, would you still be saying, "Well, it's the will of the people?" Because this decision will affect those just as much as it'll affect gay marriage. Personally, I think they should have to pry those out of our cold, dead hands.

I wish people would stop focusing on the outcome they want, and think more about what they're trying to do to get there.

Per Slobone's request, lInk to live streaming video of oral arguments here:

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