Observers are predicting that the California Supreme Court will uphold Proposition 8, the 2008 ballot initiative that amended the state constitution to ban gay marriage, by a 5-to-23 vote. At the same time, the court seems likely to rule that same-sex marriages performed before the initiative remain valid. The court, which in a 4-to-3 decision last year ruled that an earlier gay marriage ban was unconstitutional, heard oral arguments in the case yesterday. Although I think the government should treat gay and straight couples equally, the predicted decision seems legally correct to me. The issue before the court is whether Proposition 8 merely amends the constitution, which can be done by a popular vote, or fundamentally revises it, which requires either a two-thirds vote of the legislature or a constitutional convention.
Last week I discussed a proposed compromise on gay marriage involving federal recognition of civil unions. The week before, I noted that Utah's governor had come out in favor of civil unions for gay couples. In December I urged both sides in this debate to recognize the distinction between public and private discrimination. Other Reason coverage of gay marriage here.