Constitutional Law

California Justices Appear Likely to Uphold Gay Marriage Ban

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The California Supreme Court appears likely to uphold a voter initiative banning gay marriage.

Following oral arguments yesterday, the Recorder predicted that the court would uphold the voter measure known as Proposition 8 in a 5-2 decision. The New York Times, the Los Angeles Times and the Daily Journal (sub. req.) agreed that the gay-marriage ban would probably be upheld.

The only victory for gay-rights supporters, according to the publications, was an indication by the justices that they would uphold gay marriages that took place before voters approved the ban.

Justice Joyce Kennard was in a 4-3 court majority finding a constitutional right to gay marriage last May 15, six months before Proposition 8 passed. But she indicated during arguments that she would uphold the referendum, the stories note.

“This case is different,” said Kennard. “Here we are dealing with the power of the people—an inalienable right for the people to amend the Constitution.”

“How can we willy nilly disregard the will of the people to change the Constitution?”

Chief Justice Ronald George, another member of the previous 4-3 majority, also appeared likely to uphold the gay marriage ban.

At issue was whether the ballot measure was a simple amendment to the state Constitution that can be approved by a voter majority or a far-reaching revision requiring either a two-thirds vote of the legislature or a constitutional convention.

Shannon Minter, legal director the National Center for Lesbian Rights in San Francisco, argued that Proposition 8 was an impermissible constitutional revision. He claimed ballot initiatives were not permissible if they took away rights instead of improving the Constitution.

On the other side, Pepperdine law dean Kenneth Starr argued that the people are sovereign and can do “unwise things” in the initiative process, as long as government structure isn’t affected or the federal Constitution is not violated. Voters could likely ban anti-discrimination laws and prevent gays from adopting children, he said.

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