California Supreme Court Set to Uphold Prop 8

The Los Angeles Times reports on today's arguments before the California Supreme Court:

The California Supreme Court strongly indicated Thursday it would rule that Proposition 8 validly abolished the right for gays to marry but would allow same-sex couples who wed before the November election to remain legally married.

The long-awaited hearing, which came as dueling demonstrators chanted and carried banners outside, was a disappointment for gay rights lawyers.

They had hoped the same court majority that overturned the state's previous marriage ban would conclude that Proposition 8 was an impermissible constitutional revision.

Two members of that majority -- Chief Justice Ronald M. George and Justice Joyce L. Kennard -- expressed deep skepticism toward the gay rights lawyers' arguments. Without their votes, Proposition 8 appeared almost certain to survive.

The other two justices who ruled in favor of marriage rights last year - Carlos R. Moreno and Kathryn Mickle Werdegar - seemed more open to the revision challenge. Moreno even helped gay rights lawyers with their arguments.

But the court revealed no division on whether to uphold the marriages of an estimated 18,000 same-sex couples who wed before November.

Even Justice Marvin Baxter, the court's most conservative member, observed that the couples got married after receiving the right by "the highest court of the state."

"How can we deny the validity of those marriages?" Baxter asked.

The court's ruling is due within 90 days.

There's more at the link, but check Dale Carpenter at Volokh Conspiracy for some of the legal trade-offs the Court must make to come to its expected ruling. Looking ahead, will a simple majority by initiative be able to strip the fundamental "rights" of any numerical minority in the state?

No matter what happens, the gay marriage debate doesn't end here.

A legal rights group, Gay & Lesbian Adocates & Defenders (GLAD), filed suit on Tuesday to challenge the Defense of Marriage Act of 1996 (DOMA). The federal law grants an exception to Article IV's Full Faith and Credit command for states' obligations to each other (which requires that states recognize the acts, records, and judgments of other states). So, things at some point will move up from the state level to the federal courts - in California, for example, following the resolution of the Prop 8 challenge, but also in other parts of the country where gay activists are pressing their advantage in the perceived leftist climate engendered by economic crisis and Obamessianism.

Recall, though, that just 31 percent of Americans currently support full same-sex marriage rights (when the question is asked with the alternative responses of "civil unions or partnerships for same-sex couples," or "no legal recognition for same-sex couples"). So, we'll be back to largely a political war over defining what it means to uphold traditional values, but also a struggle to seek a moderate compromise that might work to calm the culture wars before things become so intractable the nation sees a repeat of the worst violence and excesses of the civil rights era.