The California Supreme Court heard oral arguments on Thursday from attorneys on both sides of Proposition 8, the ballot measure passed in November defining marriage as only between a man and a woman.

History professor Tom Clark teaches a class in United State legal history. He is also counsel to the Assembly Judiciary Committee and has experience watching the California Supreme Court.

“My guess is that the Court will uphold the proposition but rule that the already contracted marriages must remain valid,” Clark said after watching the oral arguments.

The California Court ruled in May that limiting marriage to only opposite-sex marriages was unconstitutional. Prop. 8, passed by California voters in November, defined marriage in the Constitution as only between a man and a woman. Between May and November, 18,000 same-sex marriages were performed.

The Court has until June 5 to publish its decision.

The oral arguments were heard by the court at the Earl Warren Center in San Francisco; they were televised and web casted by the California Channel and other news sites.

Andrew Crouse, freshman government major, watched the entire three hours of arguments on the Internet. He is a supporter of same-sex marriage, but doesn’t think the court will overturn Prop. 8.

“I don’t want to be pessimistic. I want to be optimistic, but I don’t think it is going to happen,” Crouse said.

Brad Dacus, president of the Pacific Justice Institute, has been a leading Sacramento spokesperson supporting Prop. 8 during the campaign.

“Of course, we can never be certain how a court will rule until the decision is actually issued,” he wrote on his website. “But today’s arguments were very encouraging for those who worked so hard to ensure the passage of Prop. 8.”

The Court is deciding if Prop. 8 was a revision or amendment to the California Constitution. If it is an amendment, then Prop. 8 is constitutional because an amendment only requires a majority vote. If it is a revision, then it requires either a constitutional convention or a vote of two-thirds of the legislature and a majority of voters.

Opponents of Prop. 8 say it is unconstitutional because it is a revision. The constitution defines a revision as a “substantial change to the entire constitution.”

Steve Franklin, assistant to the judicial administration fellowship program in the center for California studies at Sacramento State, said he was surprised the arguments got away from the concept of same-sex marriage.

“My feeling is (for the justices) it is not so much an issue if gays and lesbians have a right to marriage,” he said. “It became more if the voters have a right to amend the Constitution. I do believe they are leaning to that. I think they will uphold that.”

Justice Joyce Kennard is considered a potential swing voter in the Prop. 8 case. She voted in favor of same-sex marriages in the earlier “In re Marriage Cases,” but has said she sees a difference between the two cases.

“What I am picking up from this case is that the court should willy-nilly disregard the will of the people,” Kennard said.

Kenneth Starr, the lead attorney for the supporters of Prop. 8, argued the people have an “inalienable right to amend the constitution,” as long as it doesn’t change the basic structure of the government.

Starr argued that Prop. 8 doesn’t change any of the existing rights for same-sex couples. He said as domestic partners they share “the full panoply of rights” of a married couple.

In May 2008 the Court’s ruling on “In re Marriage Cases” stated that gays and lesbians were a protected minority and subject to “strict judicial scrutiny.” Marriage is also considered a fundamental right in the Constitution.

Larry Levine, a law professor at the University of Pacific’s McGeorge Law School, specializes in torts and sexual orientation. He watched the oral arguments with his sexual orientation and the law class in the lecture hall at McGeorge. “There is a shared understanding among us of the value and meaning of marriage,” he said. “Maybe the fact that gay and lesbian couple have fought so hard for the marriage right, and that others have fought so hard against, proves the point.”

Michael Maroko, a Los Angeles lawyer representing gay couples, answered the marriage versus domestic partnership question during the oral arguments, saying names matter. He used the analogy of continuing to use the title “justice” for the four male Supreme Court justices and changing the title for the three female justices to “commissioner,” while leaving all rights and duties the same.

A large number of the McGeorge students watching the arguments in the lecture hall at McGeorge were from Levine’s class and favored same-sex marriage.

When Levine asked the class after the telecast which way they thought the court would rule, over half of them raised their hands to show they felt Prop. 8 would be found constitutional.

Should the Court decide Prop. 8 is constitutional, and only a marriage between a man and a woman is to be recognized, then they will also have to decide if the ruling is retroactive. During the period when same-sex marriage was legal, between May and November of 2008, 18,000 same-sex couples were married.

Some of the law students voiced concern that Kennard tipped her hand on the first question when she said she thought the status of the 18,000 same-sex marriages was the more critical question before the Court.

“Is that really fair to the people who depended on what this court said, upended their lives, to throw that out?” asked Justice Ming Chin, who voted in the minority in the In re Marriage Cases decision.

Chief Justice Ronald George, who wrote the “In re Marriage Cases” decision, also asked questions as if he considered supporting Prop. 8. He said the California Constitution has been amended more than 500 times, while the older U.S. Constitution has only been amended 27 times.

“Maybe the solution has to be a political one,” George said about changing the amendment process.

Mary-Beth Moylan, a professor at McGeorge Law School and a “court watcher,” also watched the telecast in the school’s lecture hall.

“I think the question of revision versus amendment is too close to call,” she said regarding a prediction of the case’s outcome. “As to the validity of the existing marriages, I would guess that they will remain valid.”

Kate Kendell, executive director of the National Center for Lesbian Rights, said she was pessimistic of the chances of the court overturning Prop. 8.

“I think conversations about going back to the ballot need to happen vigorously and strategically,” Kendell said. “2010 would be the next statewide ballot, and in campaign terms, that is just around the corner. I just don’t know whether we have the groundwork in place to mount such an effort or the financial resources.”

Dan King can be reached at [email protected].