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Gay marriage backers grilled by California judges

SAN FRANCISCO (Reuters) - California’s Supreme Court justices on Thursday grilled lawyers seeking to overturn a ban on gay marriage, signaling to some that the court would uphold the state constitutional amendment on same-sex weddings passed by voters in November.

Demonstrators watch arguments on a monitor outside the California Supreme Court during a Proposition 8 demonstration in San Francisco, March 5, 2009. REUTERS/Robert Galbraith

The seven justices who opened the door to gay marriages last year by striking down a previous ban have 90 days to decide whether a second proposition outlawing same-sex weddings, approved by 52 percent of California voters in November, should stand.

The case pits demands for equal rights for gay couples against voters’ will in what has become one of the biggest civil rights cases of the day. If the court overturns the ban, which defines marriage as between a man and a woman, gay couples would again be allowed to marry in California.

Social conservatives and liberals both consider California a trendsetter that could shape the same-sex marriage agenda, even though an overwhelming majority of U.S. states have laws stopping gay couples from wedding. The November ballot outcome sparked protests by gay advocates across the United States.

Kenneth Starr -- the chief lawyer defending Proposition 8 and former U.S. solicitor general who lead the inquiry into President Bill Clinton’s affair with an intern -- repeatedly told the court that a simple majority could limit rights up to and including free speech under a state constitution that gives citizens broad power to legislate through the ballot box.

“The people do have the raw power to define rights,” Starr told the justices. “The people are sovereign and they can do very unwise things, and things that tug at the equality principle.”

Some 18,000 same-sex couples married between June, after the court ruling, and November, when the ban passed. They included Robin Tyler, one of the lead petitioners in the case heard on Thursday. In addition to ruling on the legality of the ban, the court is deciding the fate of the marriages in limbo.

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“I think they are going to uphold our marriages and they are going to uphold Proposition 8, and it’s a loss,” Tyler told Reuters after the arguments ended. “What I care about now is getting a million people in the street.”

Lawyer Andrew Pugno, part of the team supporting the ban, expressed satisfaction.

“I think it’s fair to say that the court seemed to signal support for Proposition 8 but seemed to be very skeptical of invalidating or not recognizing the marriages before the election,” he said.

Only a handful of countries, mostly European nations, allow gay marriage. In the United States, only Massachusetts and Connecticut allow same-sex weddings, although other states are considering legalizing it.

Gay marriage opponents said overturning the California ban would change the nature of state government by gutting the people’s right to make law. Advocates say that the equality guaranteed by the state is at risk and that a simple majority vote is not sufficient for such sweeping change.

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In the ornate California courtroom, justices peppered each lawyer with questions as soon as he or she took the podium, cutting off responses that did not directly answer their questions.

Chief Justice Ronald George and Associate Justice Joyce Kennard, who both voted in favor of gay marriage in the 4-3 ruling last year, returned frequently to the issue of voters’ power in a state where referendums are common.

“What I’m picking up from the oral argument in this case is the court should willy-nilly disregard the will of the people,” Kennard chastised opponents of the ban, stating that the case was different from the one in 2008 and defining marriage as between a man and a woman left intact rights defined last year.

But Shannon Minter, lead lawyer for the gay advocates, said that allowing Proposition 8 to stand would put every minority’s rights at risk of a majority vote, subverting the system. Such change would require a more rigorous process than a majority vote.

“A simple majority cannot be permitted to take away rights from a historical disadvantaged minority without substantially altering the very operation and purpose of equal protection and the court’s ability to fulfill its core constitutional function of enforcing equal protection,” he argued.

Reporting by Peter Henderson and Alexandria Sage, Editing by Mary Milliken and Cynthia Osterman