California voters had the right to amend the state Constitution to restore the traditional definition of marriage, and a court override would mark "an unprecedented revolution" in the judiciary's role, former U.S. Solicitor General Kenneth Starr told the state Supreme Court Thursday in an hour-long defense of Proposition 8.
Starr represented ProtectMarriage.com, the coalition that sponsored the successful initiative last November, in a three-hour hearing to consider the constitutionality of the voter ban on state recognition of same-sex marriage. The California Catholic Conference is a member of the coalition.
Prop 8, approved by more than 52 percent of voters Nov. 4, restored the 14-word definition of marriage that the Supreme Court had ruled unconstitutional in a 4-to-3 decision last May: "Only marriage between a man and a woman is valid or recognized in California."
Starr said the principle at stake is not the wisdom of voters' decision to amend the Constitution to limit marriage to a man and a woman, but whether the Constitution gives the electorate the power to vote such a definition into law. He argued that there have been no cases that have come before the court to question that right and that the seven justices weighing Prop 8 must not deviate.
"We're asking you to stay the course and not chart a new course," said Starr, dean of Pepperdine University School of Law.
Preceding Starr were lawyers for two groups of same-sex couples challenging the initiative, for the city of San Francisco and for California Attorney General Jerry Brown. They maintained that Prop 8 is not a constitutional amendment but instead an improper revision that fundamentally alters the structure of government by depriving a minority of access to a right. Christopher Krueger, a deputy state attorney general, said marriage is an "inalienable right."
The court must override Prop 8 because nothing is as fundamental to the structure of government as equality under the law, lawyers challenging the measure argued.
"We are protecting the moat while allowing the castle to burn down," San Francisco Chief Deputy City Attorney Therese Stewart said.
At that remark, Justice Joyce Kennard jumped in: "We have a pretty well established body of law in California. Those decisions don't give strong support to your argument that the people could not do what they did. Past decisions alone don't support the argument that the people couldn't do what they did."
Stewart fired back: "The object of the Constitution is to protect the minority. Therefore, this is a revolution."
That challenge prompted a cheer from the crowd of hundreds of same-sex marriage supporters gathered outside City Hall to watch the hearing on a giant screen.
Starr argued that the court must preserve the right of the people to decide regardless of the wisdom of the decision. He said Prop 8 deprives no one of what he called the "bundle of rights" available to all citizens under the Constitution.
Starr maintained that Prop 8 is not comparable to any revision ever made to the state Constitution. Past revisions have involved changes in the structure of government.
One justice answered that even though that is true is does not mean it must be true. She said the argument that Prop 8 is a revision because it is a civil rights infringement presents the court with a problem it has never confronted before.
Starr conceded that the court faces a choice but answered: "If you tinker with the structure, you've gone too far, people."
The court must rule within 90 days, but few expect the decision to end the debate. Opponents of Prop 8 said after the hearing that they will press their cause in the courts, in the Legislature and in public opinion.
"I think it was a respectful debate," Stewart said. "My colleague Mr. Starr did a wonderful job of articulating their side. I'm hopeful the court will not basically sell our Constitution down the river. That is what is at stake today. I have full confidence we will go back to the ballot box and will eventually prevail. We shouldn't have to sit through having our lives and our relationships demeaned."
At stake is not only the legality of Prop 8 but also the status of the 18,000 same-sex marriages recognized after the court's ruling in May and up until the November election. Although the justices seemed wary of overturning the election, they expressed concern about the fairness of not recognizing the marriages.
"We're not asking they be invalidated but we're asking they not be recognized by the state," said Ron Prentice, ProtectMarriage campaign chairman. "We believe it is very clear. However, the court heard from the other side a consistent argument that it is ambiguous. We disagree. That will be the most interesting decision."
Proponents of Prop 8 said they felt the court gave their side a fair hearing and were optimistic about the ruling on the measure's validity.
"I thought Dean Starr did a magnificent job of articulating our position that the Constitution belongs to the people and the people have rightly and appropriately amended it and marriage remains between a man a woman," California Catholic Conference Executive Director Ned Dolejsi said outside the courthouse. "The court asked many good questions across a spectrum of issues. I would be mildly optimistic they're in favor of validating Proposition 8."
Said ProtectMarriage General Counsel Andrew Pugno: "We saw a broad understanding of what really matters here: the right of the people to amend their Constitution. The questioning today was very consistent with all the issues that have been briefed in the written submissions and we think the court is analyzing the case properly and we're likely to prevail."
Prentice said he felt Starr's argument against expanding the definition of revision impressed the justices favorably: "They understand what could happen to the initiative process and the sovereign will of the people if indeed this was to be overturned." |