California gay marriage battle turns to court role
By Peter Henderson Peter Henderson – Mon Jan 5, 9:46 pm ET
SAN FRANCISCO (Reuters) – The legal battle over gay marriage in California turned on Monday to whether the state's top court could strike down a change in the state constitution that was approved by voters.
Gay marriage opponents said overturning a same-sex marriage ban would change the nature of California government by gutting the people's right to make law.
Giving such power to the court would create "a sweeping power vested in the least-democratic branch that overrides the precious right of the people to determine how they will be governed," they said in court papers filed on Monday.
"It is essentially changing the constitution-making function from the people to the courts," lawyer Andrew Pugno, a supporter of Proposition 8, which defines marriage as between a man and a woman, said by telephone.
Gay marriage proponents, led by California Attorney General Jerry Brown, argue that the right to marry is part of the "inalienable right" to liberty, so the state Supreme Court must strike down even an amendment to the constitution limiting it.
Unfortunately, this is where the issue will ultimately be decided. Gay marriage is highly unlikely to be accepted through the ballot box. To my knowledge, no state that has permited gay marriage or same-sex unions has done so by a vote of the state's voting population; they've all come through the courts.
California Attorney General Jerry Brown has it pegged right, though. It's not just a personal preference or privacy issue, or even an issue of "common decency"; the debate has to be framed as one of civil rights. Simply put, it has to be argued that the states have no good reason to deprive homosexual couples of the same rights as those enjoyed by heterosexual couples.
Stay tuned.
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