Simon Chan holds a sign declaring that marriage is between a man and a woman during a demonstration outside the California Supreme Court building in San Francisco, March 5. CNS PHOTO/RICK DELVECCHIO/CATHOLIC SAN FRANCISCO

By Rick DelVecchio
Catholic News Service

SAN FRANCISCO (CNS) — 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 March 5 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-approved ban on state recognition of same-sex marriage.

The California Catholic Conference is a member of the coalition.

Proposition 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 4-3 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 Proposition 8 must not deviate.

“We’re asking you to stay the course and not chart a new course,” said Starr, dean of the School of Law at Pepperdine University in Malibu.

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 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 right.

A supporter of Propo-sition 8 holds a sign as people wait in line to enter the California Supreme Court hearing on same-sex marriages in San Francisco March 5. CNS PHOTO/ROBERT GALBRAITH/REUTERS

Christopher Krueger, a deputy state attorney general, said marriage is an “inalienable right.”

The court must override Proposition 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 supporters of same-sex marriage who 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 Proposition 8 deprives no one of what he called the “bundle of rights” available to all citizens under the Constitution.

Starr maintained that Proposition 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 it does not mean it must be true. She said the argument that Proposition 8 is a revision because it is a civil rights infringement presents the court with a problem it has never before confronted.

Starr conceded that the court faces a choice but answered: “It 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 Proposition 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 told Catholic San Francisco, newspaper of the archdiocese. “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,” she said. “I have full confidence we will go back to the ballot and will eventually prevail.”

At stake is not only the legality of Proposition 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.

“We’re not asking they be invalidated but we’re asking they not be recognized by the state,” Ron Prentice, ProtectMarriage campaign chairman, said after the hearing.

“We believe it is very clear. However, the court heard from the other side a consistent argument that it is ambiguous. We disagree,” he said. “That will be the most interesting decision.”

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