California Supreme Court Weighs Legality of Gay Marriage Ban

March 5 (Bloomberg) -- The California Supreme Court, which legalized gay marriage in 2008, will consider whether it was unconstitutional for Californians to outlaw same-sex weddings in a ballot measure that sparked protests and calls for boycotts against its supporters.

Gay and civil rights groups and cities including San Francisco and Los Angeles are seeking to overturn the measure, known as Proposition 8, which on Nov. 4 won 52 percent approval of voters to amend the state constitution to ban homosexual nuptials in the nation’s most populous state.

They say Proposition 8 is illegal because it revises the constitution to rob a protected minority of equal rights and court protection. Revisions of the constitution must be handled by state lawmakers, according to lawsuits filed on Nov. 5. Proposition 8 backers said the court can’t reverse what voters have approved. Arguments in the case are scheduled for today in San Francisco.

“The court is always reluctant to overturn a ballot initiative,” said attorney Vikram Amar, who teaches constitutional law at University of California-Davis. “Prop 8 challengers will try to distinguish this initiative from others, that equality is somehow more important than other basic rights.”

The court will also decide whether to invalidate approximately 18,000 marriages performed before Proposition 8 passed. Four out of seven Supreme Court justices voted to legalize gay marriage in May. One of the four voted against hearing lawsuits seeking to overturn Proposition 8. That has led to speculation that there may be four votes against striking down Proposition 8, said Amar. A ruling is due within 90 days.

The ballot measure captured national attention because California was only the second state after Massachusetts to allow gay weddings and because of the backlash against its supporters.

Mormon and Evangelical churches in California were targeted by protesters over their support of the measure. Proposition 8 campaign donors, some of whose names were publicized on Web sites, received critical e-mails or calls to boycott their businesses, according to court records.

California has at least 92,000 same-sex couples, more than any other state, according to U.S. Census Bureau figures. The state supreme court ruled in May that homosexual couples have a constitutional right to marry. The ruling struck down laws barring gay weddings, and was reversed by Proposition 8.

“If permitted to stand, Proposition 8 would strike directly at the foundational constitutional principal of equal protection” by establishing “that an unpopular group may be selectively stripped of fundamental rights by a simple majority of voters,” Shannon Minter, legal director of the National Center for Lesbian Rights, said in court filings.

Minter, a 48-year-old transsexual who is married with a daughter, will argue on behalf of gay couples suing to overturn Proposition 8. He was one of the attorneys who successfully argued before the court in May to legalize gay weddings.

Kenneth Starr, the Pepperdine University Law School dean and former U.S. independent counsel who headed an investigation that led to former President Bill Clinton’s impeachment, will represent Proposition 8 supporters before the court today. Proposition 8 doesn’t revise the constitution or allow a majority to take rights away from same-sex couples because it leaves intact California’s domestic partner laws, Starr, 62, said in court filings.

Californians “will no doubt continue to debate the issue in terms of inalienable rights, justice, tradition and social welfare,” Starr wrote. “However, the judiciary no longer has a role in determining the definition of marriage.”