California gay marriage battle turns to court role

By Peter Henderson

SAN FRANCISCO (Reuters) - The legal battle over gay marriage in California turned on Monday to whether the state's top court could strike down a change in the state constitution that was approved by voters.

Gay marriage opponents said overturning a same-sex marriage ban would change the nature of California government by gutting the people's right to make law.

Giving such power to the court would create "a sweeping power vested in the least-democratic branch that overrides the precious right of the people to determine how they will be governed," they said in court papers filed on Monday.

"It is essentially changing the constitution-making function from the people to the courts," lawyer Andrew Pugno, a supporter of Proposition 8, which defines marriage as between a man and a woman, said by telephone.

Gay marriage proponents, led by California Attorney General Jerry Brown, argue that the right to marry is part of the "inalienable right" to liberty, so the state Supreme Court must strike down even an amendment to the constitution limiting it.

State voters approved Prop 8 on November 4, removing California from the short list of U.S. states, Canadian provinces and mostly European countries allowing same-sex unions.

The vote in California, which had begun allowing gay marriage only months earlier, sparked protests across the United States, even though a solid majority of states have outlawed same-sex marriage.

California often sets socially liberal precedents for the rest of the United States, but many of its residents have a fundamentalist democratic, anti-government bent. Citizens have wide latitude to change laws and the state constitution directly via popular vote -- which was the case with the gay marriage ban.

The ban was approved by 52 percent of voters. Brown says that, unless there is a compelling societal need, the court must safeguard liberty first and foremost. Lawyers backing the ban, he said, want "to say that a fundamental liberty is only fundamental until 52 percent of the people say otherwise."

The court, which in a summer 2008 opinion opened the door to same-sex marriage -- until the ban was passed in November -- is expected to hear oral arguments in March.

(Reporting by Peter Henderson, Editing by Patricia Zengerle)