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California Supreme Court ponders challenges to gay-marriage ban

Berkeley — When six of seven members of the California Supreme Court gathered in Berkeley on Friday for a conference on the role of the court, their every facial tic and remark was scrutinized for signs of whether they would vote to overturn Proposition 8.

Topics of discussion included the death penalty and private judging, but the lawyers in the conference room on the UC Berkeley campus grew especially rapt when Justice Kathryn Mickle Werdegar announced discussion of the court’s historic May 15 decision that guaranteed “the pre-Proposition 8 right of gays and lesbians to marry.”

The court is pondering legal challenges to Proposition 8, which restored the ban on same-sex marriage. While the justices listened to what others had to say about their role in same-sex marriage, another lawsuit was filed before them to overturn the initiative.

That legal challenge — brought by groups including the Asian Pacific American Legal Center, the Mexican American Legal Defense and Educational Fund, and the NAACP Legal Defense Fund — brings to four the number of lawsuits asking the court to overturn Proposition 8.

The court may act on the challenges as early as next week.

Although the conference on the role of the state high court was planned months ago, its topics squarely addressed the heated legal and political questions now swirling around the justices and the fate of same-sex marriage.

Former Gov. Pete Wilson, one of the speakers, said the court should defer to the other branches of government and refrain from making policy on its own.

An appellate lawyer on a panel observed the court’s obligation “to protect the minority from the tyranny of the majority.”

And justices from other states warned that voters are increasingly throwing state Supreme Court justices off the bench after heated campaigns by special interest groups.

Pepperdine University Law School Dean Kenneth W. Starr, speaking on a panel that discussed the court’s rulings, called same-sex marriage “the defining social issue of our time.”

The marriage ruling not only was “the biggest blockbuster of this court’s term but perhaps the most important decision handed down in the United States by any court,” he said.

Starr had opposed same-sex marriage before the court, but he read aloud from the majority opinion in a stirring voice as the justices listened.

The 4-3 ruling spoke of the “overarching values of equality and human freedom,” the need to protect minorities, the “fundamental right” of marriage, and the importance of giving same-sex unions “equal dignity and respect,” he said.

He also read from the dissents, which called marriage an ancient institution and said the court should defer to the will of the people.

With the justices only a few feet away, Santa Clara University Law School Professor Gerald Uelmen opined that the court could not overturn Proposition 8 without also admitting that its May 15 decision improperly revised the state Constitution. The lawsuits against Proposition 8 contend that the initiative changed the tenets of the state Constitution and therefore amounted to a revision, which can only be placed on the ballot by a 2/3 vote of the Legislature. Proposition 8 stemmed from a signature campaign.

Werdegar, the panel’s moderator, frowned and ignored the comment.

Earlier she had said that the state high court must provide independent review when state constitutional issues were at stake, even if it meant overturning a vote of the people. Her remarks dealt with a tax case and had nothing to do with Proposition 8, but reporters scribbled furiously.

Television and radio media cornered Chief Justice Ronald M. George, who wrote the marriage ruling, and repeatedly tried to get him to discuss Proposition 8. He explained over and over again that judges were not permitted to comment on pending cases.

While the justices lunched with panelists and the audience, Ohio Chief Justice Thomas J. Moyer warned that special interest groups were increasingly threatening the independence of the judiciary. Six state Supreme Court justices were ousted by voters this year after nasty campaigns by special interests, he said.

Opponents of same-sex marriages have talked of recalling members of the state high court if they overturn Proposition 8. Although George did not refer to those threats, he complained of the “increasingly partisan nature of judicial elections.”

“We are keenly aware that we share with other state courts a vulnerability to forces that focus not on impartiality but on whether judges, like officeholders in our sister branches of government, should be responsive to majoritarian, political or special-interest preferences,” he said.

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