Calif. Court Hears Gay-Marriage Ban Appeal

The California Supreme Court hears oral arguments on an array of lawsuits seeking to overturn Proposition 8, the voter-approved measure that overturned gay marriage last November. Proposition 8 enjoys wide support outside the state's big cities.

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ROBERT SIEGEL, host:

A high stakes legal battle played out today in a San Francisco courtroom when that will decide the fate of California's voter approved ban on gay marriage. As lawyers argued before the state Supreme Court, thousands of demonstrators gathered outside to have their say on Proposition 8.

(Soundbite of people demonstrating)

Unidentified Demonstrators: No on 8, Yes on 8.

SIEGEL: Against that backdrop the (unintelligible) heard arguments on whether Prop 8 was actually legal under California's Constitution. NPR's Richard Gonzales has been following today's proceedings and joins us now from San Francisco. Richard I get it, this comes down to a fine legal point whether Prop 8 was an amendment or a revision to the state's constitution. What's the difference?

RICHARD GONZALES: Yeah, an amendment is available for the voters. It's here in California to change the state constitution through the ballot box and that's what the proponents of Prop 8 say, they accomplished when they convinced 52 percent of the electorate to ban gay marriage back in November. The supporters of same sex marriage are challenging the measure by arguing that Prop 8 is more than an amendment. That it is a revision of the constitution. A revision in the constitution means that it changes the basic function of the government and that it needs to go through the legislature before it can go to the voters. Attorney Shannon Minter who is arguing against Prop 8 made this argument and here's what he said.

Mr. SHANNON MINTER (Attorney): The core of our argument is that majorities cannot, a simple majority cannot be permitted to take away rights from a historically disadvantaged minority without thereby substantially altering the very operation and purpose of equal protection and the court's ability to fulfill its core constitutional function of enforcing equal protection.

SIEGEL: And whom was he representing into today's hearing?

GONZALES: He is representing the people who oppose Proposition 8.

SIEGEL: Oppose Proposition 8. The city of San Francisco I gather is one of the parties who are trying to (unintelligible). Ah! some others.

GONZALES: Well we had Attorney General, Jeremy Brown's office sent an attorney to argue that Prop 8, deny couples right to marry right at the same court that heard this case have ruled in favor of it back in May. The sponsors of Prop 8 were represented by a former Pepperdine Law School Dean, Kenneth Starr. You may remember him as a former…

SIEGEL: (Unintelligible), yeah.

GONZALES: (Unintelligible) correct back into the date of the Clinton administration. Now Starr argued that the voters have every right to amend their constitution and he tried to cast the debate away from the issue of minority rights. Here is what he said.

Mr. KENNETH STARR (Dean, Pepperdine Law School): Opposition aid does not in fact erode any of the considerable bundle of rights that this state has very generously provided. It has done what? It had said here is the context. We want to restore the traditional definition that has been in place since this state was founded and almost every other court in the country has agreed with the rationality of that, you may think it's bad policy.

SIEGEL: That's Kenneth Starr. The same court which would legalize same sex marriage last May, then the voters overturned the court's ruling in November when they approved Prop 8. What does that mean for all of the same sex marriages that occurred in between those two developments?

GONZALES: It appears that the justices were prepared to recognize the validity of Prop 8 to recognize that we can no longer have gay marriage but at the same time to rule that the 18,000 marriages that were performed between May and November of last year will stand. Several justices asked basically the same question. How would it be fair to those couples who are married when it was legal to (unintelligible) recognition pulled away from them?

SIEGEL: So, today were arguments before the California State Supreme Court. When might we have a ruling in the case?

GONZALES: The ruling was due in 90 days but no one thinks that (unintelligible) will be over then. Both sides think it could go back to the ballot box whenever supporters of gay marriage think that they can change the minds of the voters.

SIEGEL: Thank you, Richard. NPR's Richard Gonzales is speaking with us from San Francisco.

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