With thousands chanting slogans and waving placards outside, California's highest court on Thursday skeptically grilled lawyers seeking to overturn the state's voter-approved ban on gay marriage.
Attorneys for same-sex couples sought to persuade the California Supreme Court that the public's right to change the constitution doesn't extend to depriving a minority of the right to wed.
But the court's seven justices indicated a wariness to override what Associate Justice Joyce Kennard called the people's "very, very broad, well-wrought" authority to amend the state's governing framework at the ballot box.
"What I am picking up from the oral arguments is that this court should willy-nilly disregard the will of the people," said Kennard, who just 10 months ago voted that prohibiting same-sex marriages violated the civil rights of gays. "The people established the constitution; as judges, our power is very limited."
The justices heard three hours of arguments on a trio of lawsuits challenging the gay marriage ban, known as Proposition 8, which was approved in November with 52 percent of the vote. It effectively reversed a 4-3 Supreme Court decision that legalized gay marriage 4 1/2 months before the U.S. general and California state election.
After the hearing, couples like Chloe Harris, 28, and Frankie Frankeny, 42, who married during the 4 1/2-month window, said they were disheartened by the tone of the hearing and not very hopeful the justices would opt to strike down the ban.
"We don't go vote on anyone else's rights," Frankeny said. "It's so demeaning."
Gay rights advocates _ including same-sex couples, local governments led by San Francisco and civil rights groups _ argued the proposition is such a sweeping change to the constitution's equal protection clause that it was a constitutional revision, not just an amendment. A revision requires legislative approval before it lands on the ballot.
Chief Justice Ronald George, who also ruled last year to strike down a pair of laws that limited marriage to a man and a woman, echoed Kennard's qualms about denying voters their voice.
George noted that the state constitution has been amended at least 500 times compared with the 27 times the U.S. Constitution has been altered, and said it was up to the Legislature or voters _ not the court _ to make the process more difficult.
"It seems what you are saying is, it is just too easy to amend the California Constitution," George told Raymond Marshall, an attorney representing the National Association for the Advancement of Colored People (NAACP) and other civil rights groups trying to overturn the ban. "Maybe the solution has to be a political one."
In an unusual move, California Attorney General Jerry Brown sided with same-sex marriage advocates and refused to defend Proposition 8.
Arguing on Brown's behalf, Senior Assistant Attorney General Christopher Krueger told the justices that prohibiting gays and lesbians to get married was unconstitutional because it infringes on "inalienable" rights to liberty and privacy.
Supporters of the gay marriage ban, represented by former Whitewater prosecutor Kenneth Starr, said it would be a reversal of the Supreme Court's own precedents for the court to overturn the results of a fair election.
The court also heard arguments on how Proposition 8, if upheld, affects the 18,000 marriages of same-sex couples performed before it passed. Many of the justices appeared reluctant to invalidate the existing marriages.
"Is that really fair to the people who depended on what this court said, upended their lives ... to throw that out?" asked Associate Justice Ming Chin.
Starr, the dean of Pepperdine law school, replied that the couples who got married had to have known "there was a swirl of uncertainty" surrounding their unions.
George said if there was indeed uncertainty, the benefit of the doubt should go the newlyweds.
The crowd outside the court grew steadily throughout the hearing, with many watching the proceedings on a giant television screen erected across the street in front of San Francisco City Hall. Demonstrators were evenly split over the gay marriage issue and took turns drowning out each others chants after the hearing.
The Supreme Court has 90 days to issue a ruling.
