Will Proposition 8 be declared unconstitutional?

Tomorrow, Tuesday 26 May at 10 a.m. (Pacific time) the California Supreme Court is scheduled to announce its ruling on whether to uphold Proposition 8 and it's ban on same-sex marriages in the state. The ruling will also decide the fate of about 18,000 same-sex couples who were married last summer before California voters outlawed the practice through passage of the Proposition in the November 2008 election.

Gay rights lawyers have argued that the ballot measure was an illegal constitutional revision rather than a more limited amendment. Attorney General Jerry Brown urged the court to reject the measure on different grounds, contending the proposition was unconstitutional because it took away an inalienable right without compelling justification.

I'm nervous about the whole thing, but Melissa Griffin over at the San Francisco City Hall Examiner does offer a hopeful prediction:

"At oral arguments, I'll admit that things were not looking great for proponents of same-sex marriage. Ken Starr did a great job arguing that Prop 8 is legitimate and Jerry Brown sent a buffoon to argue one of the most compelling arguments for shooting down Prop 8.

But while one can never be 100% sure, I believe that Prop 8 will be declared unconstitutional. And it will be along the same voting line as the In Re Marriage Cases (IRMC) decision. [172-page decision here: Download Supreme Court Opinion.]

Remember that California voters passed Prop 22 back in 2000, which added language to the California Family Code declaring that only Opposite Marriage is ok in this state. That language was eliminated from our code by the IRMC decision.

In IRMC, the Court found that there was a conflict between Prop 22 and the equal protection clause of the State Constitution - and the State Constitution always beats a regular ol' law. Prop 8 put the Opposite Marriage language IN the Constitution, and the winner between the internally conflicting provisions is less clear.

Despite this difference, Prop 22 and Prop 8 both require a hard look at the "will of the people" versus the equal protection clause of the State Constitution. That is why the IRMC decision is informative: how the Justices viewed voter intent to pass Prop 22 can shed light on how they'll look at Prop 8. "

Ms. Griffin sees the vote as coming down to 3 in favor of Prop 8 (Justices Baxter, Chin, and Corrigan) and 4 against (Justices George, Kennard, Moreno, and Werdegar), the same outcome as the IRMC decision.

Fingers crossed.