Sometime in June, the California Supreme Court is expected to make a ruling on the validity of Proposition 8, the same-sex marriage ban passed by voters in November.

This will be the court's second look at the issue, the first being a 4-3 ruling upholding the right of same-sex couples to marry. That May ruling was followed by a vigorous campaign by same-sex marriage opponents. Their effort resulted in Proposition 8.

Voter passage of the initiative triggered another court challenge, this one with anti-Proposition 8 groups arguing that the ballot measure constituted an impermissible constitutional revision.

Back and forth. Back and forth. And here we are, waiting again on the state's highest court.

California is not alone

Not every state is waiting, though. Massachusetts and Connecticut have legalized same-sex marriage. In Iowa, a unanimous state Supreme Court ruled last week that "the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective."

In other words, it's none of the state's business who is married to whom except when prohibitions violate the equal protection requirements of law.

Then came Vermont the next day and a legislative vote to override Gov. Jim Douglas' veto of a bill legalizing same-sex marriage. And that day also saw the District of Columbia Council give preliminary approval to a bill that would require the city to recognize same-sex marriages performed elsewhere, something New York already does.

New Hampshire and New Jersey have bills to legalize same-sex marriage before their legislatures.

Equal protection

Most of the court rulings and legislative arguments have revolved around the issues of civil rights and equal protection. In fact, when California's high court ruled last year, it cited a 1948 state Supreme Court ruling lifting the ban on interracial marriages.

The issue, involving deeply held beliefs on both sides, is not going away. Gay rights court rulings provoke hysterical responses that the courts are violating the will of the people, that activist judges are attempting to legislate rather than adjudicate and that court interference in such matters has no place in a democracy.

Of course, that claim was settled by the John Marshall court in 1807, the first time a court ruled something unconstitutional. That precedent stuck and is a hallowed part of our system of checks and balances. Brown v. Board of Education would not have happened had there not been a Marbury v. Madison somewhere in our judicial history.

There are 29 states, California being one of them, that have approved constitutional amendments banning same-sex marriage. There is the federal Defense of Marriage Act, which was passed overwhelmingly by the House and Senate and signed into law in 1996 by President Bill Clinton.

All of this, certainly if same-sex marriage advocates continue to gain momentum, someday will fall away. If or when it does, it will change the civil definition of marriage to something like the union between two people. Marriage in this sense is a legally binding contract. Some say marriage will be reduced to nothing more than a contract.

Tradition, religion will stand

That argument is spurious. Cultural tradition and religious doctrine will not fall away. Marriage is something much more, to many a divine covenant. That understanding of marriage should not be simply cast aside, no legislation or court ruling should require any religion to officiate at or even recognize any marriage that violates its tenets. The First Amendment stands in defense of that wall of separation.

By the same token, no religion or group should presume veto power over how others choose to lead their lives, excepting choices that do damage to others. In that case, the secular state also has interests.

Same-sex marriage is an issue that is deeply divisive. No matter what law is passed or what courts rule, those divisions likely will remain. But some of the arguments we hear today are strikingly similar to those heard during the civil rights era, when the doctrine of "separate but equal" gave way to the acknowledgement that separate is "inherently unequal."

That acknowledgement is at the core of the same-sex marriage debate.

6-1 Decision Says Marriage Ban Legal; Marriages Prior to Ban Stand

SAN FRANCISCO – The California Supreme Court upheld a voter-approved ban on same-sex marriage Tuesday, but it also decided that the estimated 18,000 gay couples who tied the knot before the law took effect will stay wed.
Demonstrators outside the court yelled "shame on you!" Gay rights activists immediately promised to resume their fight, saying they would go back to voters as early as next year in a bid to repeal the ban.

The 6-1 decision written by Chief Justice Ron George rejected an argument by gay rights activists that the ban revised the California Constitution's equal protection clause to such a dramatic degree that it first needed the Legislature's approval.
The court said the Californians have a right, through the ballot box, to change their constitution.

"In a sense, petitioners' and the attorney general's complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it," the ruling said.

The justices said the 136-page majority ruling does not speak to whether they agree with the voter-approved Proposition 8 or "believe it should be a part of the California Constitution."

They said they were "limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values."

The announcement of the decision set off an outcry among a sea of demonstrators who had gathered in front of the San Francisco courthouse awaiting the ruling. Holding signs and many waving rainbow flags, they yelled "shame on you." Many people also held hands in a chain around an intersection in an act of protest.

Same-sex marriage is legal in Iowa, Maine, Vermont, Massachusetts and Connecticut.

The court said it is well-established legal principle that an amendment is not retroactive unless it is clear that the voters intended it to apply retroactively, and there was no such clear indication in Proposition 8.

That provided some relief for the 18,000 gay couples who married in the brief time same-sex marriage was legal last year but that wasn't enough to dull the anger over the ruling that banned gay marriage.

"It's not about whether we get to stay married. Our fight is far from over," said Jeannie Rizzo, 62, who was one of the lead plaintiffs along with her wife, Polly Cooper. "I have about 20 years left on this earth, and I'm going to continue to fight for equality every day."

Also in the crowd gathered at City Hall, near the courthouse, were Sharon Papo, 30, and Amber Weiss, 32, who were married on the first day gay marriage was legal last year, June 17.

"We're relieved our marriage was not invalidated, but this is a hollow victory because there are so many that are not allowed to marry those they love," Weiss said.

"I feel very uncomfortable being in a special class of citizens," Papo said.

A small group of Proposition 8 supporters also had gathered outside the court to hear the ruling.

"A lot of people just assume we're religious nuts. We're not. But we are Christians and we believe in the Bible," said George Popko, 22, a student at American River College in Sacramento, where the student government officially endorsed Proposition 8.

The state Supreme Court had ruled last May that it was unconstitutional to deny gay couples the right to wed. Many same-sex couples had rushed to get married before the November vote on Proposition 8, fearing it could be passed. When it was, gay rights activists went back to the court arguing that the ban was improperly put to voters and amounted to a revision — which required legislative approval — not an amendment.

That was the issue justices decided Tuesday.

"After comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision," the ruling said.

Justice Carlos Moreno wrote the dissenting opinion disagreeing that the proposition did not change the constitution's equal protection clause. He said the law denying same-sex couples the right to wed "strikes at the core of the promise of equality that underlies our California Constitution." He said it represents a "drastic and far-reaching change."

"Promising equal treatment to some is fundamentally different from promising equal treatment for all," said Moreno, who had been mentioned as a possible contender for the U.S. Supreme Court. "Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment