SAN FRANCISCO — Same-sex “marriage” has been on a seesaw in California. First, voters voted to protect the definition of marriage. Then, the state Supreme Court redefined marriage to include same-sex couples. Next, in Proposition 8, voters reestablished marriage’s traditional definition. The pro-marriage amendment passed last fall.

In a hearing here March 5, California Supreme Court justices seemed strongly inclined to uphold Proposition 8.

But the justices also seemed reluctant to nullify the 18,000 or so same-sex “marriages” that took place between May (when the court ruled same-sex couples could “marry”) and November (when voters passed Prop. 8).

Kenneth Starr, dean of the Pepperdine University School of Law in Malibu and Whitewater prosecutor, represented, the coalition that sponsored the initiative. During the three-hour hearing, he argued the amendment was legally approved by the majority of voters and it would be a miscarriage of justice for the court to overturn the results of a fair election.

The California Catholic Conference is a member of the coalition.

Also arguing at the hearing were lawyers for two groups of same-sex couples challenging the initiative for the city of San Francisco and for California Attorney General Jerry Brown. They maintained that Proposition 8 is not a constitutional amendment but instead an improper revision that fundamentally alters the structure of government by depriving a minority of access to a right.

Attorney Shannon Minter of the National Center for Lesbian Rights argued in court that marriage is a “fundamental right.” He said denying same-sex couples the right to marry puts them “in a second-class status” and “marks them as second-class citizens.”

Proposition 8, approved by more than 52% of voters, restored the 14-word definition of marriage that the Supreme Court had ruled unconstitutional in a 4-3 decision last May: “Only marriage between a man and a woman is valid or recognized in California.”

Starr said the principle at stake is not the wisdom of the voters’ decision to amend the state Constitution to limit marriage to a man and a woman but whether the Constitution gives the electorate the power to vote such a definition into law.

He argued that there have been no cases that have come before the court to question that right and that the seven justices weighing Proposition 8 must not deviate.

“We’re asking you to stay the course and not chart a new course,” said Starr.

But questions raised by the bench strongly suggested the justices saw the key question in this case to be whether or not the people of California have a right to change their own constitution.

The court will render a decision within 90 days of the hearing.

Two justices who were part of a 4-3 majority in last year’s ruling giving homosexuals the civil right to “marry” — Chief Justice Ronald George and Justice Joyce Kennard — both made strong statements indicating the people of California have a right to change their own constitution, whether the court likes what they do or not.

George said California’s Constitution has been amended more than 500 times and asked, “Isn’t that the system we have to live with” until or unless it’s changed?

He pointed to a case in which the state Supreme Court threw out the death penalty and the people of California overrode the court to reinstate it.

Kennard said that in her view this case involved “a very different issue” from the one in May and made it clear she was not ready to “willy-nilly disregard the will of the people.”

Several justices pointed out that allowing Prop. 8 to stand does nothing to take away the “panoply” or “bundle” of legal rights same-sex couples enjoy in California.

Arguing on behalf of Attorney General Jerry Brown that Prop. 8 should be overturned, Deputy State Attorney General Christopher Krueger said the majority does not have “unbridled power” to take away an “inalienable right” from the minority. He called the Prop. 8 amendment “draconian.”

But Kennard asked Krueger, “What about the inalienable right of the people to amend the Constitution as the people see fit?”

Arguments presented on behalf of Brown’s office, strongly based on cases dating back to the mid-1800s, were referred to by the court as “very novel” and even “quaint.”

Interim ‘Marriages’

What to do about the 18,000 interim “marriages” was another question in the case. Carol Hogan, a spokeswoman for the California Catholic Conference, the bishops’ office of public policy in Sacramento, who attended the hearings, called them “problematic, because it creates two classes of people.” She said letting those unions stand leaves “a tension in the law that at some point will come back to them. You can’t have two classes of people.”

Charles LiMandri, Thomas More Law Center’s West Coast director, predicted the 18,000 unions, if left intact, won’t have “a significant impact on the culture,” at least not in California.

Estimating that one-third of those “marriages” involved couples from other states that don’t recognize their licenses and observing that same-sex relationships “tend to last just a couple years,” LiMandri said, “You’re going to have probably on the order of about 5,000 of those ‘marriages’ left five years from now. In a state the size of California — 36 million or so — that’s not going to have much of an impact.”

As for the outcome of the case, Joe Infranco, an Alliance Defense Fund lawyer working on the Prop. 8 issue, said his group is “confident the justices are going to recognize the democratic process and do the right thing.”

William Duncan, attorney with the Marriage Law Foundation in Lehi, Utah, concurred. “I’m optimistic the court will rule in favor of Prop. 8 and step away from the brink of saying that the judges themselves are the ones who have the final say on this issue.”

Elizabeth Gill, staff attorney with the American Civil Liberties Union of Northern California, believed the right thing would be for the court to strike down Prop. 8. “The court has a solemn responsibility to enforce our state Constitution and to protect the rights of all people, regardless of popular opinion,” Gill said.

But Carol Hogan said the hearing “went very well for our side.”

The law is clearly on our side,” she said. “So we’re cautiously optimistic.”

Considering the justices’ statements in court, LiMandri said, “I think we won.”

If Prop. 8 stands, same-sex “marriage” activists “will now focus on New England,” LiMandri predicted. “But without a major state like California, this will knock them back on their agenda, if not for a generation, at least a decade.”

Catholic News Service contributed to this article.

Sue Ellin Browder writes from Willits, California.