Good Day in Court for Prop. 8

Posted by Tom McFeely

Friday, March 06, 2009 8:18 AM

Proposition 8 supporter holds sign outside the California Supreme Court in San Francisco March 5. (CNS/Reuters)

Some very positive news on the marriage front: California’s Supreme Court appears poised to uphold Proposition 8, the state ballot measure that defined marriage as a one-man, one-woman institution.

That’s the assessment of this article in the San Jose Mercury News. It reported that the justices hearing the case appear highly disinclined to accept the arguments of the lawyers representing opponents of Proposition 8.

That’s no surprise, given that those arguments are singularly weak. After all, as Pepperdine law school dean Kenneth Starr noted in his presentation to the court in support of upholding the will of the people as expressed through Proposition 8, the state constitution “has now been amended by the sovereign people who are its creators. That is the beginning and end of this case.”

Opponents of Proposition 8 are advancing two main legal arguments. One is that rather than simply amending the state constitution, the marriage definition proposition constitutes an unacceptable constitutional “revision.”

False, argued Starr before the court.

“But that portrayal is wildly wrong,” Starr said. “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. It is now part of the state constitution.”

The other main argument being made in court against Proposition 8 — put forward by California Attorney General Jerry Brown — seems even more far-fetched. Brown, who acknowledges that the “revision” argument against the marriage-definition amendment has little legal merit, is arguing instead that Proposition 8 took away the “inalienable right” of homosexuals to have the liberty to marry the person of their choice.

In his presentation, Starr dismissed this argument as one that asks the court “to embrace what truly would be a revolution it is utterly without formalization in the courts jurisprudence.”

Starr’s arguments appeared to resonate with the justices hearing the case. According to the Mercury News, “Most members of the court repeatedly reminded lawyers that voters spoke loud and clear on the subject when they outlawed gay marriage last fall by amending the state constitution, the ultimate trump card against court intervention.”

The court’s decision regarding the constitutionality of Proposition 8 is due to be made public in 90 days.

Filed under homosexuality, marriage, proposition 8