The James Logan Courier

By Howard Mintz
San Jose Mercury News (MCT)

SAN JOSE, Calif. — For same-sex couples, the roller coaster ride for the right to marry shifted Wednesday from the rough and tumble of a political campaign back to the California Supreme Court.

And the fate of gay marriage in this torn state is as murky as ever.

"It's very hard to predict what the court will do," said Erwin Chemerinsky, dean of the University of California-Irvine Law School. "This is an issue where there isn't enough law to make a prediction."

Before the final votes on Proposition 8 were even tallied Wednesday, civil rights groups and San Francisco city officials filed two separate legal challenges in the California Supreme Court, asking the justices to block the state's latest ban on same-sex marriages. The salvos are expected to set in motion another protracted legal tussle over gay marriage that could eventually spill into other courts, including, at some point, the U.S. Supreme Court.

The civil rights challenge was filed on behalf of six same-sex couples who now want to marry, including San Jose partners Brad Jacklin and Dustin Hergert, who say they no longer have the right because of the passage of Proposition 8. The arguments in the state Supreme Court do not address the status of the estimated 18,000 same-sex couples who've married in recent months, a separate legal question that is expected to surface in other court cases.

Attorney General Jerry Brown has said he will defend those existing marriages, but Proposition 8 supporters question the validity of such unions because the ballot measure bars legal recognition of gay marriages. Most legal experts say courts frown on taking away established rights, but Loyola law Professor Jennifer Rothman noted that it would create a "bizarre world" in California with some gay couples married and others deprived of the future right to tie the knot under Proposition 8.

Still, the consensus is that existing marriages will remain legal.

"It's very unlikely with the state supporting it these marriages are going to be invalidated," Rothman said.

But in the meantime, the broader attack on Proposition 8 returns to the state Supreme Court, which legalized gay marriage in May by striking down the state's prior ban on same-sex weddings. The Supreme Court found the ban unconstitutional, but Proposition 8 was designed to trump the 4-3 ruling by amending the state constitution to confine marriage to heterosexual couples.

The legal challenges filed Wednesday argue that a ballot proposition can't be used to amend the state constitution when it strips away an established legal right, in this instance the equal right of gays and lesbians to marry. In court papers, gay marriage supporters insist such a provision can only go to the voters after being considered by the Legislature. As a result, they've asked the Supreme Court to block Proposition 8 from going into effect.

San Francisco city officials, joined by Santa Clara County and Los Angeles, filed an identical legal argument with the justices.

"The core purpose of a constitution is to protect minority rights," said Shannon Minter, legal director for the National Center for Lesbian Rights. "It's the law of California that same-sex couples have the fundamental right to marry."

Proposition 8 supporters vow to defend the law in court, saying the legal challenge is an attempt to undermine the will of the voters. They view the measure as no different than past voter changes to the constitution, such as restoration of the death penalty.

"I don't think they are going to get very far," said Andrew Pugno, lead attorney for the Proposition 8 campaign.

Legal experts such as former state Supreme Court Justice Joseph Grodin say the challenge raises novel questions for how the high court deals with a constitutional amendment that conflicts with the justices' past ruling on a constitutional right. But if the argument fails, many legal analysts believe Proposition 8 will be challenged in the federal courts.

"Sooner or later, a couple that wants to be married will bring their own lawsuit to federal court or challenge Prop. 8 under U.S. constitutional law," Chemerinsky said.

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