(San Francisco, California) The California Supreme Court heard oral arguments Thursday in a case challenging the constitutionality of Proposition 8. The measure that ended same-sex marriage in the state but a decision on is not expected for up to 90 days.

Prop 8 was passed by voters in November by a slim 52 percent.

The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights immediately filed lawsuits challenging the constitutionality of the vote.  They were joined by additional suits by the cities of San Francisco and Los Angeles and a legal opinion by California Attorney General Jerry Brown.

Arguing for the litigants was Shannon Minter, the NCLR attorney who earlier successfully argued the gay marriage case before the high court.

Minter told the court that Prop 8 should be ruled invalid because the initiative process was improperly used in an attempt to undo the constitution’s core commitment to equality for everyone.

He also argued that Proposition 8 improperly attempted to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities.

Minter said that under the California Constitution, such radical changes to the organizing principles of state government cannot be made by a simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first.

The California Constitution establishes two ways that it can be altered. A substantial change to the principles or basic structure of the constitution, called a “revision,” requires the involvement of the legislature and a more deliberative process. A less substantial change, called an “amendment,” can be enacted by a simple majority vote of the people.

The California Supreme Court should strike down Proposition 8 because it is, in fact, a revision, Minter argued. 

The principle of equal protection, which prevents the majority from oppressing minority groups, is central to our constitution and our democratic system of government. Proposition 8 would limit that fundamental principle of equality for LGBT Californians and undermine the very purpose of equal protection for everybody he told the court.

Chief Justice Ron George asked what rights were lost other than being able to label their union as a marriage.

“Relegating same-sex couples to domestic partnership does not provide them with everything but a word,” Minter replied. “Proposition 8 changes the basic nature of our government.”

Justice Joyce Kennard noted that as with Prop 8 California voters had successfully overturned a Supreme Court ruling that the death penalty represented cruel and unusual punishment.

“Life is, at least in my view, a fundamental right,” Kennard said.

ACLU attorney Raymond Marshall, one of Minter’s co-council, replied that unlike Prop 8 the death penalty applies to all Californians.

“I think what you are overlooking is the very broad powers of the people to amend the constitution,” Kennard shot back.

Attorney Christopher Krueger, representing California Attorney General Jerry Brown, told the court his office disagreed with Minter’s argument that Prop 8 was an improper revision of the constitution.

But said the measure should still be struck down.

Krueger argued that Prop 8 was unconstitutional because it conflicted with an “inalienable right” to liberty that the state Supreme Court found last year included the right of same-sex couples to marry. 

Under questioning he acknowledge it was “somewhat of a novel theory,” but nonetheless legitimate.

Representing the conservative groups behind Prop 8 was Kenneth Starr who led the inquiry into President Bill Clinton’s affair with Monica L. Lewinsky.

Starr argued that the will of the people must be respected by the court saying the groups challenging Prop 8 wanted the court to ignore  “inalienable right” of the people to change the constitution.

“The people do have the raw power to define the rights,” Starr told the court. “We govern ourselves – and we may govern ourselves unwisely.”

He also argued that the measure also invalidated the 18,000 same-sex marriages between the time gay marriage was declared legal and voters went to the polls in November.

Justice Carol Corrigan challenged the assertion, noting that the marriages occurred after the Supreme Court ruled that gay marriage was legal.

“If Californians can’t rely on what this court says … who should they ask?” she said.

Justices Kennard and George also jumped on Starr’s assertion questioning whether voters saw Proposition 8 as retroactive. Justice George suggested that if  retroactivity was one of the intents of the backers of Prop 8 it should have been stated in the initiative.

For the court there are three issues to be determined: Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution; Does Proposition 8 violate the separation of powers doctrine under the California Constitution; and If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8.

Outside the court about a thousand people were gathered watching the proceeding on a Jumbotron screen set up by Marriage Equality USA.

Wednesday night tens of thousands of people took part in candlelight vigils in more than 30 cities throughout the state.