They're hearing arguments on whether or not the passage of Prop 8 was constitutional. The supreme court then has 90 days to make a decision. If you didn't listen to this, you might want to check out the highlights. 3hrs of arguments is pretty tedious, but it's relevant to us all. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/03/04/MN6I16807P.DTL Prop. 8 hearing: majority vote, minority rights Bob Egelko, Chronicle Staff Writer Wednesday, March 4, 2009 When the seven California Supreme Court justices return to the national spotlight Thursday to consider voters' power to overrule them on same-sex marriage, court-watchers will be keeping a close eye on two in particular - Chief Justice Ronald George and Justice Joyce Kennard. Proposition 8 Both sides make their case in court 03.05.09 March in the Castro on eve of Prop. 8 hearing 03.04.09 Hearing: majority vote, minority rights 03.04.09 State lawmakers pass 2 anti-Prop. 8 resolutions 03.03.09 FULL COVERAGE: Donor database, background, latest stories More News Court hears Prop. 8 arguments 03.05.09 Dow industrials plunge another 200 points 03.05.09 Search for NFL players, other man called 'subdued' 03.05.09 2 Fla. students challenge school's gay club ruling 03.05.09 Their votes were crucial in last year's court decision legalizing same-sex marriages. Now they could hold the key to whether the court bows to the will of a majority of Californians to undo that ruling. In a three-hour hearing in San Francisco, the court will consider challenges to Proposition 8, the initiative approved by voters in November that restored the state's definition of marriage as the union of a man and a woman. Less than six months earlier, the court had declared that gays and lesbians had a constitutional right to marry. The issue this time is different: not whether the marriage limitation is discriminatory or intrudes on personal freedom, but whether a majority of the voters, by amending the state Constitution, can eliminate minority rights that the court has recognized. A ruling is due within 90 days. Holding onto 4 votes Both Kennard and George were part of the 4-3 majority that struck down California's ban on same-sex marriage in May. Although judicial forecasting is only slightly more reliable than reading tea leaves, it's likely that opponents of Prop. 8 - two groups of same-sex couples and an array of local governments led by San Francisco - will need votes from the same four justices to overturn the measure. But Kennard, the court's senior justice in her 20th year of service and one of its strongest supporters of same-sex couples' rights, seemed to signal shortly after Prop. 8 passed that she was inclined to uphold it. When the court voted to take up the lawsuits challenging Prop. 8 two weeks after the election, Kennard cast the lone dissenting vote. She said the only issue that the court needed to review was whether the 18,000 same-sex marriages conducted before the election were valid. The court has asked the opposing sides to address that question, which focuses on the meaning of Prop. 8's language that only opposite-sex marriage is "valid or recognized in California." Supporters say that bars the state from recognizing all existing same-sex marriages; opponents say dissolving pre-election marriages would amount to a state-compelled divorce, trampling on 18,000 couples' family and property rights. But the court will get to that issue only if it upholds Prop. 8. That outcome will look more likely if Kennard, usually the court's most persistent interrogator, hits lawyers with a round of questions about existing marriages. Validity of marriages As San Francisco lawyer Dennis Maio, a former longtime staff attorney with the state's high court, put it, "If Proposition 8 is not valid, that means all those marriages are fine, so why talk about them?" Another clue could come from George, the author of last year's marriage ruling. The chief justice, who sits at the center of the courtroom dais, also occupies the court's ideological center - three justices usually line up to his left and three to his right - and nearly always casts the deciding vote in close cases. George's comments at a hearing last March on same-sex marriage, when he likened the case to the interracial marriage ban that the court overturned in 1948, foreshadowed his majority opinion two months later. "He's typically in the middle," said Stephen Barnett, a UC Berkeley law professor. He cautioned, though, that this case, which involves "such strong moral persuasions," might not follow the usual pattern. Political backing The anti-Prop. 8 forces head into the hearing with political support from Gov. Arnold Schwarzenegger and both houses of the Legislature, which passed nonbinding resolutions this week calling the initiative unconstitutional. They even have won support from Attorney General Jerry Brown, who defended the earlier marriage law in court last year. Brown argues that Prop. 8 exceeds the legal boundaries of an initiative by withdrawing "inalienable" rights - equality and privacy - from a minority without a compelling reason. But if history is any indication, those seeking to overturn the ballot measure are swimming upstream. Because Prop. 8 amended the state Constitution, opponents can no longer rely on that document's guarantees of equal treatment and personal liberty to grant gays and lesbians the right to marry. Instead, advocates of same-sex marriage argue that Prop. 8, by withdrawing fundamental rights the court had sought to protect, assaulted the state Constitution itself. Amendment or revision? One of their claims is that the measure was not merely an amendment but a revision of the Constitution, which can be placed on the ballot only by a two-thirds legislative vote or by delegates to a new state constitutional convention. The court ruled in 1948 that a ballot measure that would have changed 15 of the Constitution's 21 sections was an invalid revision. In 1990, the court overturned a section of an initiative that would have set aside the state Constitution in criminal cases by limiting defendants to their rights under the U.S. Constitution. But the court has rejected similar challenges to such far-reaching ballot measures as Proposition 13 of 1978, which rewrote California laws on tax increases; the 1990 initiative that set term limits for legislators and state elected officials; and the 1972 constitutional amendment overturning the court's decision earlier that year striking down the death penalty. Judges' reach Prop. 8's opponents also argue that it interferes with judges' authority to shield minorities - racial, religious, political or sexual - from discrimination. The court has occasionally ruled that a law intrudes into judicial terrain, but Prop. 8 supporters say the justices have also recognized that the voters have the last word on sensitive issues such as school busing, affirmative action and the death penalty. Finally, Brown contends the "inalienable" rights listed in the beginning of the state Constitution shouldn't be subject to majority whim. The attorney general made an impassioned plea to the court in written arguments that invoked California's "guarantees of individual liberty," but could not point to any rulings that endorsed his view of the limits of ballot measures. The lead case is Strauss vs. Horton, S168047. Viewer's guide to Supreme Court hearing A guide to the California Supreme Court hearing Thursday on Proposition 8 and same-sex marriage: How to watch: The hearing is scheduled from 9 a.m. to noon at the court's chambers at 350 McAllister St. in San Francisco. It can be viewed live on the California Channel, which is carried on Comcast cable systems in the Bay Area. The channel number varies from city to city, so check local listings. -- A group favoring same-sex marriage will sponsor a public viewing of the oral arguments on a JumboTron in San Francisco's Civic Center Plaza. -- A live Webcast will also be available at www.calchannel.com. Opponents: Lawyers for two groups of same-sex couples challenging Prop. 8 will have 30 minutes each to present their case. The city of San Francisco, representing local governments opposing Prop. 8, will also have 30 minutes. Proponents: Kenneth Starr, representing Protect Marriage, sponsor of Prop. 8, will have one hour. Attorney general's office: Attorney General Jerry Brown's office will have 15 minutes for arguments that Prop. 8 is unconstitutional because it denies fundamental rights to a minority group. His office also will have 15 minutes, however, to counter Prop. 8 opponents' arguments that the measure is an invalid revision of the state Constitution and a violation of separation of powers.