Now that their testimony has been heard in California’s Supreme Court, the wait has begun for marriage equality activists seeking to overturn a constitutional amendment passed by voters in November, declaring that marriage is between a man and a woman.

The justices, who last May upheld the constitutional right of gays and lesbians to marry, heard over three hours of testimony May 5 from opponents and supporters of Prop. 8, which won by 52 percent.

Seeking to overturn the ballot measure were attorneys representing two groups of same-sex couples, local governments headed by the City of San Francisco, and the office of state Attorney General Jerry Brown. Representing Prop. 8’s sponsor, Protect Marriage, was Kenneth Starr, best known for his role in investigating (some may call it persecuting) the Clinton White House.’.

The court is due to rule within 90 days.

Lawyers opposing Prop. 8 argued it didn’t just amend the constitution — which voters have the right to do — but revised it, a matter that must be put on the ballot either by two-thirds of voters or by delegates to a new state constitutional convention. Starr contended voters have nearly unlimited ability to amend the state constitution.

Observers were on tenterhooks as justices who last year were part of the 4-3 majority upholding marriage equality showed signs that this time, they might side with the proposition.

In his majority opinion last year, Chief Justice Ronald George compared the marriage rights of same sex partners with the marriage rights of people of different races — upheld by California’s Supreme Court in a historic decision 60 years ago. This time, he pointed out that the state constitution has been amended far more than the U.S. Constitution.

Justice Joyce Kennard, also part of last May’s majority, noted that Prop. 8 only added 14 words to the constitution, and couldn’t be considered a revision just based on its length.

It appeared, however, that all seven justices were inclined to uphold the validity of the 18,000 same-sex marriages performed in California before Prop. 8 was passed.

San Francisco Chief Deputy Attorney Therese Stewart argued that “A guarantee of equality that is subject to exceptions by the majority is no guarantee at all.” Shannon Minter, representing the National Center for Lesbian Rights, said, “A majority can’t take away a fundamental right only from members of a group historically subject to discrimination.” He said taking away the right to marry puts same-sex couples “in a second-class status.”

But Starr claimed past rulings had been declared constitutional revisions only if they caused a ‘far-reaching change in the basic structure of government,” and said Prop. 8 doesn’t take away any of the other “bundle of rights” provided by California.

After the state Supreme Court last May ruled invalid an earlier California ballot measure barring same sex marriage, opponents of marriage equality including conservative religious organizations spearheaded the movement to pass Prop. 8, amassing over a million signatures to put it on the Nov. 5 ballot.

mbechtel @ pww.org

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