Same-sex marriage is history in California, at least for now. This morning California Supreme Court justices hinted strongly that they will uphold Proposition 8, the November ballot initiative limiting marriage to heterosexual couples.
The only bright spot for gay marriage advocates during the three hours and 15 minutes of argument came when the justices indicated that marriages held after last spring's In re Marriage Cases ruling but before the November vote would retain the force of law.
Chief Justice Ronald George, who became a hero to gay couples by authoring Marriage Cases last year, made very clear that the voters will have the last word, even when it involves what he described as "so-called inalienable rights." George said Prop 8 proponents' argument is "more political than legal" and suggested they return to the ballot box.
Justice Joyce Kennard, also part of the Marriage Cases majority, flatly took exception to the argument that Prop 8 "destroys equal protection," saying it made only a "limited exception" in the case of marriage. She and George repeatedly emphasized that the other protections afforded gays by Marriage Cases will remain, with Kennard going so far as to ask Shannon Minter, of the National Center for Lesbian Rights, why he felt that "the sky has fallen in."
Meanwhile, Marriage Cases dissenters Marvin Baxter, Ming Chin and Carol Corrigan sounded at ease and self-confident, in sharp contrast to their frustrated tone at argument last year. The only time they became aroused was when Pepperdine law school dean Kenneth Starr, representing Prop 8 proponents, said "the flinty reality" of Prop 8 is that marriages already performed no longer have the force of law.
Baxter, Chin and Corrigan all suggested that those couples reasonably relied on the court's Marriage Cases decision, despite Starr's claim of a "swirl of uncertainty" surrounding the ruling last summer.
We will have a full report later today at our sister site, www.callaw.com.
— Scott Graham