‘Strong majority’ of California justices against overturning Prop. 8

Kenneth Starr
Kenneth Starr


The California Supreme Court on Thursday began hearing oral arguments on the constitutionality of California’s Proposition 8, the successful ballot measure which restored the state’s definition of marriage as being between a man and a woman. According to one supporter, a “strong majority” of justices are not inclined to overturn the proposition.

According to the San Jose Mercury News, the legal questions center upon whether Proposition 8 violates constitutional separation-of-powers by sidestepping the court’s duty to interpret the constitution and how the approximately 18,000 legal marriages contracted by same-sex couples will be treated if Proposition 8 is upheld.

The American Civil Liberties Union and Equality California, joined by the first lesbian couple to contract a legal same-sex marriage in California, filed a lawsuit immediately after the election to try and overturn Proposition 8.

Proposition 8 was a political response to the California Supreme Court’s June 2008 ruling that same-sex “marriage” was mandated by the state constitution.

Andrew Pugno, the General Counsel of ProtectMarriage.com – Yes on 8, in November called the lawsuit a “frivolous and regrettable” attempt to invalidate the decision of voters.

“These same groups filed an identical case with the California Supreme Court months ago, which was summarily dismissed,” he said in a Nov. 5 statement.

Speaking of Proposition 8 opponents, he said:

“It is as if their campaign just spent $40 million on a losing campaign opposing something they now say is a legal nullity. Their position is absurd, an insult to California voters and an attack on the initiative process itself.”

The Proposition 8 proponents arguing in court on Thursday were Dennis Hollingsworth, who is now the state Senate Republican leader, and the Yes on 8 campaign committee represented by attorneys Kenneth Starr and Andrew Pugno.

According to a Thursday press release from Yes on 8 – ProtectMarriage.com, lead attorney Kenneth Starr told the court that the California constitution “has now been amended by the sovereign people who are its creators. That is the beginning and end of this case.”

“The people have the inalienable right to control their constitution,” he said, speaking for a total of 60 minutes.

“Proposition 8’s brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions, or exclusions. Only marriage between a man and a woman is valid or recognized in California. Describing Proposition 8 as a revision to the state constitution depends on characterizing Proposition 8 as a radical departure from the fundamental principles of the California Constitution,” argued Starr.

Starr, a former U.S. appellate judge who served as U.S. Solicitor General, attacked such a portrayal as “wildly wrong.”

“Proposition 8 is limited in nature and effect. It does nothing more than restore the definition of marriage to what it was and always had been under California law before June 16, 2008 – and to what the people had repeatedly willed that it be throughout California’s history,” he added.

California Attorney General Jerry Brown argued in opposition to the measure. According to the Mercury News, he has said that same-sex “marriage” is a fundamental, inalienable right that should not be revocable by popular vote under any circumstances.

Starr said embracing Brown’s view would be a “revolution… utterly without formalization in the court’s jurisprudence.”

Dozens of amicus curiae (friend of the court) briefs have also been filed by the proposition’s supporters and opponents.

Frank Schubert, Campaign Manager of the Yes on 8 campaign, spoke with CNA in a Thursday phone interview about the day’s oral arguments, reporting they went “very well” for Proposition 8 supporters.

“Starr did an extraordinary job presenting our arguments,” he said, saying they saw “great skepticism” from the judges concerning the arguments against Proposition 8.

In Schubert’s view, judging by their comments and questions, “it seems clear that a strong majority [of justices] are very much not inclined to overturn.”

Justices did not appear to focus on the argument about separation of powers, he reported.

However, the fate of the some 18,000 same-sex couples in state-recognized marriages will be “a much tougher decision for them to make.”

“It’s clear that they are struggling what to do with those couples,” he told CNA, adding that there is no question that there is sympathy for them.

Schubert described Attorney General Brown’s argument that Proposition 8 violates same-sex couples’ “liberty rights” as being met with “widespread skepticism”  and as a “novel legal argument which has never been raised before.”

Schubert said he thought the justices “resoundingly rejected” that argument.

Asked why the court was revisiting the argument concerning whether the ballot measure was a constitutional revision or a constitutional amendment, Schubert said that that pre-election challenge to Proposition 8 had been dismissed and was not decided on its merits.

“They had the opportunity to throw out Prop. 8, and they declined,” he told CNA.

The argument was being revisited, Schubert thought, because it was opponents’ “last hope” to overturn the measure.

“It’s very much a long shot for them, and it’s clear they’re not going to succeed.”

“They failed at the ballot box and they’re trying to overturn the people’s judgment the only way that they can.”

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