From NBC's Pete Williams
Based on their questions and comments during three hours of oral argument Thursday, a majority of the California Supreme Court appeared ready to uphold Proposition 8, the ballot initiative that ended gay marriage in the state.
Approved by 52 percent of voters last November after a bitter election battle, it amended the state constitution to add a single sentence: "Only marriage between a man and a woman is valid or recognized in California."
However, it seemed equally apparent that the court was prepared to rule that the 18,000 same-sex marriages performed in the state last year should remain valid. Licenses for those marriages were issued between May, when the state Supreme Court struck down laws against same-sex marriage, and November, when the constitution was amended by Proposition 8 to undo that ruling.
In arguing that Prop 8 was invalid, opponents claimed that the state constitution cannot be amended in a manner that takes away a fundamental right from a minority historically subject to discrimination.
"An unpopular group cannot be selectively stripped of fundamental rights by a simple majority of voters," argued Shannon Minter, a lawyer for the opponents. "A majority cannot take away rights from a disadvantaged minority."
If Proposition 8 is upheld, opponents said, then voters could end mixed-race marriages, too. of they wanted.
But the justices were clearly skeptical of that argument, noting that the state Supreme Court has never found that such a limit applies to constitutional amendments adopted through the ballot box.
"What I'm picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people," Justice Joyce Kennard said .
Appearing for the supporters of Prop 8, Kenneth Starr, the former Whitewater prosecutor, said the people hold the right to modify the state constitution by adding or subtracting protections for civil rights.
"The people have the raw power to define rights. The people are sovereign and can even do very unwise things," he said.
However, a majority of justices appeared to believe that marriages performed last year, after the court struck down state laws against gay marriage, should nonetheless continue to be valid. Proposition 8 did not explicitly apply to marriages performed before it was adopted in November, they noted.
The court will most likely issue its ruling within 90 days, sometime in early June.