Q&A | Gay marriage in California: What's at stake

The California Supreme Court this morning will hand down its decision on Proposition 8, the voter initiative passed in November that outlawed same-sex marriage in the state.

Q: What is being decided by the California Supreme Court?

A: The court will rule on whether to uphold or strike down Proposition 8, a state constitutional amendment banning gay marriage. The justices also will decide whether the state will continue to recognize or void the estimated 18,000 same-sex marriages that were carried out in 2008.

Q. How did California get to this point?

A. After San Francisco officials began allowing same-sex couples to wed there in 2004, the courts intervened, invalidating the marriages on grounds that local officials had overstepped their authority. But in May 2008, the California Supreme Court ruled that the California Constitution protects a fundamental "right to marry" that extends to same-sex couples.

That made California the second state, after Massachusetts, to permit same-sex marriage. About 18,000 gay couples were married between June and November, when voters approved Proposition 8, which amended the state Constitution to recognize marriage as only between a man and woman. Opponents of Proposition 8 appealed to the California Supreme Court to overturn the ballot measure.

They contend the proposition changed the tenets of the state Constitution and therefore amounted to a revision, which can only be placed on the ballot by a two-thirds vote of the Legislature; Proposition 8 reached the ballot after a signature drive.

Q. What do legal experts expect the court to do?

A. Based on comments the justices made at a hearing this year, most legal experts expect the court to uphold Proposition 8 but continue to recognize marriages of same-sex couples who wed before the November election.

Q. If the court upholds Proposition 8, what happens next?

A. State officials would continue prohibiting issuing marriage licenses to same-sex couples. Supporters of same-sex marriage, however, are expected to go back to the ballot as soon as 2010 with another constitutional amendment recognizing gay marriage.

Q. If Proposition 8 is upheld, does that affect the state's domestic-partnership law, which gives same-sex couples the legal rights of marriage?

A. No. State law surrounding domestic partnerships is separate from allowing same-sex couples to marry.

There is no dispute about the legality of domestic partnerships. After the California Supreme Court ruled that same-sex couples could marry in 2008, the state began to recognize same-sex couples who married out of state.

Q. If Proposition 8 is upheld, will California continue to recognize those couples as married?

A. That's a question for the California Supreme Court to answer.

Q. How have other states handled same-sex marriages?

A. Most states do not recognize same-sex marriage, either by state law or by a constitutional amendment. The federal government does not recognize same-sex marriage. Some states, including Washington, offer same-sex couples civil unions or domestic partnerships, giving each partner some of the legal benefits spouses are given, such as the ability to file joint income-tax returns and receive spousal health-insurance benefits from government agencies.

Five states allow same-sex couples to marry: Massachusetts, Connecticut, Iowa, Vermont and Maine. In New Hampshire, New York and New Jersey, lawmakers are considering legalizing same-sex marriage. In Iowa and Maine, opponents of same-sex marriage say they plan to overturn decisions to legalize same-sex marriage at the ballot box.

Q. What are some tips for reading the decision?

A. The court's majority decision should be revealed in the first or second page of the ruling and restated in its last paragraph. Separate concurring and dissenting opinions follow. Counting votes may be tricky, because the court is dealing with three legal issues:

• The revision challenge.

• The attorney general's challenge.

• The fate of existing same-sex marriages.

The court's vote on whether Proposition 8 is an impermissible revision, for example, probably will differ from its vote on whether existing marriages should continue to be recognized by the state.

Attorney General Jerry Brown urged the court to reject the measure, contending the proposition was unconstitutional because it took away an inalienable right without compelling justification.

Justices who disagree with the majority file dissents. If they agree with only part of the majority decision, they file an opinion called a partial concurrence and dissent.

During oral argument in March, every justice expressed support for upholding existing marriages. Justice Carlos Moreno, who has been mentioned as a possible U.S. Supreme Court nominee, hinted he believed Proposition 8 was an illegal revision, indicating he would dissent on that question.

Moreno might be joined by Justice Kathryn Mickle Werdegar, a former civil-rights lawyer who stressed the court was dealing with a novel legal question. Werdegar, however, did not join Moreno in voting to put the measure on hold pending the court's ruling.

Material from The Seattle Times archive is included in this report.