What's at stake in Prop. 8 debate?

By Nicholas Goldberg
Los Angeles Times

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California's tortuous war over same-sex marriage enters its next phase Thursday, when the state Supreme Court hears oral arguments on three lawsuits challenging Proposition 8, the constitutional amendment that bans gay marriage in the state.

The easy way to think about these cases — and the way most nonlawyers figure to do it — is to decide which side of the issue you're on and root for that side to win. In other words, if you support marriage between same-sex couples, you'll want the cases to succeed so Proposition 8 will be overturned. If you believe marriage should be only between a man and a woman, you'll hope the lawsuits fail.

That's fine. It's outcome-based. But, frankly, it has very little to do with what the Supreme Court is going to consider. Instead, the argument in the courtroom will be broader and more abstract.

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Who makes law in a democracy? What should we do when laws contradict one another? Who is the ultimate sovereign in the state of California — the people at the polls or their written constitution or their appointed judges or their elected legislators? Can fundamental constitutional rights — inalienable rights — be withdrawn from one group but not another?

These are thorny questions with implications that go well beyond whether gays are allowed to marry. Here's a cheater's guide to the issues.

Q: How did we get here?

A: The battle over same-sex marriage sometimes seems endless. Gay couples have been trying to get married in California since the late 1970s, and their opponents have been working just as hard since then to ensure that it does not happen.

Some highlights: In March 2000, California voters approved Proposition 22, specifying that only marriages between men and women would be recognized. Then, in 2004, San Francisco Mayor Gavin Newsom decided — despite Proposition 22 — to allow gay marriage in his city, setting the stage for the legal battle that followed.

After many twists and turns, the California Supreme Court ruled in May 2008 that same-sex couples enjoyed a fundamental "right to marry" in the state constitution, and that Prop. 22 was therefore unconstitutional. Gay marriages went forward.

But by November, the other side was back, this time with Proposition 8, a voter initiative that again would limit marriage to a man and a woman — but now as an amendment to the state constitution rather than a mere change in the law. It passed, and — surprise! — is now being challenged.

Q: Break down the arguments for us. What do the defenders of Proposition 8 say?

A: They make the simplest and cleanest argument. They say that when the Supreme Court was poised to declare their original law — Proposition 22 — unconstitutional, they did just what they were supposed to do. They decided to change the state constitution itself, to safeguard their position once and for all. They gathered the necessary signatures, qualified Proposition 8 for the ballot and persuaded a majority of voters to approve it.

As Proposition 8's supporters see it, the people have spoken, amending the state's foundational document to make it crystal clear where they stand. How could any judge possibly misconstrue the simple 14-word amendment or declare unconstitutional something that is now enshrined in the constitution? "The constitution has now been amended, by the sovereign people who are its creators," wrote the lawyers defending Proposition 8. That is the beginning and end of this case.