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After oral arguments in a San Francisco courtroom March 5 on the challenges to California’s Proposition 8, defenders of traditional marriage felt confident they will prevail.
BY Sue Ellin BrowderREGISTER CORRESPONDENT
SAN FRANCISCO — Same-sex “marriage”
has been on a seesaw in California. First, voters voted to protect the
definition of marriage. Then, the state Supreme Court redefined marriage to
include same-sex couples. Next, in Proposition 8, voters reestablished
marriage’s traditional definition. The pro-marriage amendment passed last
In a hearing here March 5,
California Supreme Court justices seemed strongly inclined to uphold
But the justices also seemed
reluctant to nullify the 18,000 or so same-sex “marriages” that took place
between May (when the court ruled same-sex couples could “marry”) and November
(when voters passed Prop. 8).
Kenneth Starr, dean of the
Pepperdine University School of Law in Malibu and Whitewater
prosecutor, represented ProtectMarriage.com, the coalition that sponsored
the initiative. During the three-hour hearing, he argued the amendment was
legally approved by the majority of voters and it would be a miscarriage
of justice for the court to overturn the results of a fair election.
California Catholic Conference is a member of the ProtectMarriage.com
arguing at the hearing 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 Proposition 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
Shannon Minter of the National Center for Lesbian Rights argued in court that
marriage is a “fundamental right.” He said denying same-sex couples the right
to marry puts them “in a second-class status” and “marks them as second-class
8, approved by more than 52% of voters, restored the 14-word definition of
marriage that the Supreme Court had ruled unconstitutional in a 4-3 decision
last May: “Only marriage between a man and a woman is valid or recognized in
Starr said the principle at stake is
not the wisdom of the voters’ decision to amend the state 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 Proposition 8 must not deviate.
“We’re asking you to stay the course
and not chart a new course,” said Starr.
But questions raised by the bench
strongly suggested the justices saw the key question in this case to be whether
or not the people of California have a right to change their own constitution.
The court will render a decision
within 90 days of the hearing.
justices who were part of a 4-3 majority in last year’s ruling giving
homosexuals the civil right to “marry” — Chief Justice Ronald George and
Justice Joyce Kennard — both made strong statements indicating the people of
California have a right to change their own constitution, whether the court
likes what they do or not.
George said California’s
Constitution has been amended more than 500 times and asked, “Isn’t that the
system we have to live with” until or unless it’s changed?
He pointed to a case in which the
state Supreme Court threw out the death penalty and the people of California overrode
the court to reinstate it.
Kennard said that in her view this
case involved “a very different issue” from the one in May and made it clear
she was not ready to “willy-nilly disregard the will of the people.”
justices pointed out that allowing Prop. 8 to stand does nothing to take away
the “panoply” or “bundle” of legal rights same-sex couples enjoy in California.
on behalf of Attorney General Jerry Brown that Prop. 8 should be overturned,
Deputy State Attorney General Christopher Krueger said the majority does not
have “unbridled power” to take away an “inalienable right” from the
minority. He called the Prop. 8
Kennard asked Krueger, “What about the inalienable right of the people to amend
the Constitution as the people see fit?”
presented on behalf of Brown’s office, strongly based on cases dating back to
the mid-1800s, were referred to by the court as “very novel” and even “quaint.”
to do about the 18,000 interim “marriages” was another question in the case.
Carol Hogan, a spokeswoman for the California Catholic Conference, the bishops’
office of public policy in Sacramento, who attended the hearings, called them
“problematic, because it creates two classes of people.” She said letting those unions stand leaves “a
tension in the law that at some point will come back to them. You can’t have
two classes of people.”
LiMandri, Thomas More Law Center’s West Coast director, predicted the 18,000
unions, if left intact, won’t have “a significant impact on the culture,” at
least not in California.
that one-third of those “marriages” involved couples from other states that
don’t recognize their licenses and observing that same-sex relationships “tend
to last just a couple years,” LiMandri said, “You’re going to have probably on
the order of about 5,000 of those ‘marriages’ left five years from now. In a
state the size of California — 36 million or so — that’s not going to have much
of an impact.”
for the outcome of the case, Joe Infranco, an Alliance Defense Fund lawyer
working on the Prop. 8 issue, said his group is “confident the justices are
going to recognize the democratic process and do the right thing.”
Duncan, attorney with the Marriage Law Foundation in Lehi, Utah, concurred.
“I’m optimistic the court will rule in favor of Prop. 8 and step away from the
brink of saying that the judges themselves are the ones who have the final say
on this issue.”
Gill, staff attorney with the American Civil Liberties Union of Northern
California, believed the right thing would be for the court to strike down
Prop. 8. “The court has a solemn responsibility to enforce our state
Constitution and to protect the rights of all people, regardless of popular
opinion,” Gill said.
Carol Hogan said the hearing “went very well for our side.”
law is clearly on our side,” she said. “So we’re cautiously optimistic.”
the justices’ statements in court, LiMandri said, “I think we won.”
Prop. 8 stands, same-sex “marriage” activists “will now focus on New England,”
LiMandri predicted. “But without a major state like California, this will knock
them back on their agenda, if not for a generation, at least a decade.”
Catholic News Service
contributed to this article.
Sue Ellin Browder writes from Willits, California.