The issue of same-sex marriage was once again in the California Supreme Court Thursday. For three hours, the seven justices of the California Supreme Court grilled attorneys on the constitutionality of Proposition 8, a constitutional amendment restricting marriage to heterosexual couples, passed by voters last November. Though the court held last May that marriage must be extended to same-sex couples under the state's equal protection clause, it now seems reluctant to overturn a constitutional amendment from the voters rebuking the May decision.

    The marriage decision last May was close. By a 4-to-3 margin, the court held that marriage must be extended to same-sex couples. But the voters of California responded by passing an initiative last November by a 52-48 margin, overturning that decision by restricting marriage to heterosexual couples. The Court is now faced with the difficult question of whether or not certain constitutional amendments may themselves be unconstitutional. The judges seemed skeptical of the idea that they should overturn the initiative, but seemed sympathetic to claims by opponents of Proposition 8 that the initiative does not repeal the rights of 18,000 couples who were married before the initiative passed in November.

    Despite the high stakes of the case, opponents of Proposition 8, including the gay rights group Equality California and the city and county of San Francisco, began oral arguments on Thursday by urging for a technical deficiency in the initiative. They urged the court to rule that Proposition 8 was a "revision" to the Constitution, rather than an "amendment." Voters can only consider revisions to the State Constitution after they pass by a two-thirds majority of the Senate and House of the California Legislature. Amendments, however, may be placed on the ballot through voter petition. Proposition 8 was placed on the ballot through the amendment process, so, if the court rules that Proposition 8 was a revision, the initiative would be invalid, as it was not placed before the voters after approval from two-thirds of the California legislature.

    But with the exception of Justice Carlos Moreno, the seven-judge bench did not seem sympathetic to this argument. Though the Constitution itself provides no definition of "revision" or "amendment," under prior California case law, the court has held that "revisions" must be structural changes to state government. Justice Joyce Kennard, who voted in favor of extending marriage to same-sex couples and will be a key vote in the case, was hostile to the opponent's argument that the initiative was a revision because it enacted such a fundamental change to the rights of gay citizens. During the argument of Shannon Minter, a lawyer for the National Center for Lesbian Rights, Justice Kennard asked, "Is it still your view that the sky has fallen in as a result of Proposition 8, and that gays and lesbians are left with nothing?"

    Chief Justice Ronald George, who wrote the majority opinion in the marriage case last May, suggested that the problem for the opponents of Proposition 8 was that the California Constitution, which has been amended over 500 times (compared to the US Constitution, which has only 27 amendments) is too easy to amend. He implied that the solution for the opponents of Proposition 8 would be to file another ballot initiative.

    The Proposition 8 opponents recognized that their argument was a "novel" theory, but argued that the court had never had the opportunity to consider such a case in the past. "A guarantee of equality that is subject to exceptions from the majority is no guarantee at all," argued Therese Stewart, on behalf of the city of San Francisco. "Our founders would not have allowed this to be done by amendment," said Stewart, arguing that Proposition 8 has to be interpreted as a revision because protection of minority rights from amendment by a simple majority is part of the structure embedded in the California Constitution. Justice Carlos Moreno responded to this argument, pointing out that prior case law had never held that the distinction between "revision" and "amendment" could not be expanded beyond the court's prior definition.

    The Attorney General's office, which also argued against Proposition 8 Thursday, urged the court to adopt a different theory, suggesting that inalienable rights in the California Constitution may not be stripped through the initiative process. But Christopher Krueger, who argued on behalf of the state, often stumbled through his argument. Justices from the court, including Marvin Baxter, Ronald George and Carol Corrigan, all pressed Krueger to define which rights the court should deem "inalienable," and Krueger did not seem to come up with a satisfactory answer for the Justices.

    Kenneth Starr, formerly the special prosecutor of Clinton-impeachment fame, argued on behalf of the proponents of Proposition 8. Starr began his argument by saying that "the right of the people is inalienable to control their Constitution." He rebutted the state's position that the voters may not strip citizens of their inalienable constitutional rights, adding that "people have the raw power to define the nature of the rights." He argued that this is the reason why citizens ultimately consent to be governed, because they can overrule decisions by elected or judicial officials through constitutional amendment if necessary.

    The key justice may well turn out to be Justice Kennard, who originally concurred with the majority decision in May to extend marriage to same-sex couples, but seemed less sympathetic to same-sex marriage advocates on Thursday. She began by arguing with Raymond Marshall, a lawyer for Equality California, saying that the amendment was not a stripping of equal-protection rights, just a change in the definition of marriage, as gays would still be protected under the "strict scrutiny" doctrine and would retain domestic partnership rights. Later, she paraphrased Christopher Krueger's argument as urging the Court to "willy-nilly disregard the people." She continued, "The people establish the Constitution. As judges, our power is very limited." In her final question of the day, she concluded, "I stick by my concurrence in the marriage cases, but this case is different."

    However, the fortunes of gay marriage advocates seemed to change when the court considered the retroactive impact of Proposition 8. Many of the justices, including Carol Corrigan and Ming Chin, who voted against the original marriage decision, ripped into Kenneth Starr while questioning him about the retroactive effects of Proposition 8.

    Opponents of Proposition 8 expect a decision in April or May. The court has 90 days to issue an opinion.

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