Calif. Court To Review Gay-Marriage Ban

California's voter-approved ban on same sex marriage is about to face an important legal test. The state's supreme court holds hearings Thursday to determine if Proposition 8 is constitutional. Last year, the same court legalized same-sex marriage in California.

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California's voter-approved ban on same-sex marriage is about to face an important legal test. Tomorrow, the state supreme court holds hearings to determine whether the measure known as Proposition 8 is constitutional.

As NPR's Richard Gonzales reports, the issue will be decided by the same court that legalized gay marriage before Prop 8 outlawed it.

RICHARD GONZALES: When a bare majority of the California justices okayed same- sex marriage last May, 18,000 couples like Ellen LaPointe and Kleigh Hathaway jumped at the opportunity.

KLEIGH HATHAWAY: And this was myself, and Julie and Ellen walking into City Hall.

ELLEN LAPOINTE: That's his first tux.

GONZALES: Hathaway is scrolling through photos of their marriage in July of last year.

HATHAWAY: Because it was this amazing affirmation. It was like, this is the Supreme Court Justice of California telling us that this is a fundamental right. I was, like, of course we're going to get married.

GONZALES: But the legality of that ceremony was thrown into question when 52 percent of California voters passed Proposition 8, which amended the state constitution to recognize marriages only between a man and a woman. And that's left LaPointe shaking her head.

LAPOINTE: The notion that a majority plus a single vote is all it would take to deny an entire class of people the protections of our laws is beyond terrifying. Our constitution can't protect anybody, if that's truly the case. This just cannot be.

GONZALES: But supporters of Prop 8 say they are confident that the amendment is constitutional. Frank Schubert managed the Yes on 8 campaign.

FRANK SCHUBERT: The issue before the court really is not whether gay marriage is appropriate or not. It really is do the people have the right to amend their constitution and the law is overwhelming clear that they do.

GONZALES: After Prop 8 passed, gay marriage advocates filed suit that the ballot measure illegally revised the state constitution.

VIKRAM AMAR: In California we distinguish between amendments to the constitution and revisions to the constitution.

GONZALES: Vikram Amar teaches at the University of California, Davis School of Law. He says a revision of the constitution means a basic change in how the government functions. A revision requires a two-thirds vote by the state legislature before it can go to the voters.

AMAR: So if Prop 8 is best viewed as a revision rather than an amendment, then it didn't go through the right procedures and it would be invalid for that reason. That begs the big question, what's the difference between a revision and an amendment? And that's one of the things the California Supreme Court is going to have to speak to.

GONZALES: The other major question before the court is this, if the justices uphold Prop 8, what does it mean for the 18,000 gay couples who married during the brief period last year when it was legal? Conservative legal scholar Douglas Kmiec of Pepperdine University says the court could affirm Prop 8 and still recognize all civil unions, gay or straight, by changing the term, marriage, and reserving it for religious ceremonies.

DOUGLAS KMIEC: So if the judges want to both honor equality and honor the will of the people, there is an avenue open to them to do so.

GONZALES: If, however, the court overturns Prop 8, Kmiec and other legal experts say it might lead to an impeachment of the justices. And there is a precedent for that in California. Thousands of people on both sides of the issue are expected to listen to the three-hour hearing outside the court house or watch it live on cable and the Internet. The court will have 90 days to issue its ruling.

Richard Gonzales, NPR News, San Francisco.

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