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SAN FRANCISCO, Calif. — The fate of traditional marriage in California, which is protected in the state constitution thanks to the Nov. 4 passage of Proposition 8, is now in the hands of its Supreme Court. The state’s high court has 90 days to issue a ruling.
The panel’s seven justices heard just over three hours of testimony March 5, including an hourlong presentation by Kenneth W. Starr, lead attorney for Protectmarriage.com, which sponsored Proposition 8.
Effective immediately after the election, Proposition 8’s wording is now embedded in Article 1, Section 7.5 of the California constitution.
“The constitution has now been amended by the sovereign people who are its creators,” said Starr, former judge of the U.S. Court of Appeals in Washington, D.C., and Solicitor General of the United States. “That is the beginning and end of this case.”
Opponents of the measure, representing a broad base of gay rights groups, argued several points in trying to sway the jurists to toss the amendment, including a procedural challenge that the amendment reflected a wholesale revision of the constitution, which must be initiated by a 2/3 vote of legislators, not voters.
“Proposition 8’s brevity is matched by its clarity,” Starr responded. “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. But that portrayal is 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. It is now part of the state constitution.”
Using what has been labeled as a “novel” claim, Deputy State Attorney General Christopher Krueger, speaking on behalf of State Attorney General Jerry Brown, argued that the amendment should be rescinded because it wiped out the “inalienable right” of marriage, a tactic Starr refuted.
“The people have the inalienable right to control their constitution,” Starr said.
A pleasant surprise for supporters of the new amendment was the questioning by Justice Joyce Kennard, who is viewed as one of the stronger advocates for gay rights on the high bench. During her questioning Kennard seemed to indicate that she was not looking to “willy-nilly disregard the will of the people.”
Anticipating a win
After the hearing, most experts said it appeared the court was unwilling to negate the will of the people, although the justices also appeared to also be tentative about stripping the marriages of an estimated 18,000 gay and lesbian couples who were married between June and November.
“The judges, right off the bat, seemed to be on our side,” Robert Tyler, general counsel for Christian-based Advocates for Faith & Freedom, said in a pastors’ Webinar held after the hearing.
He told the Web audience that he anticipates a 5-2 vote upholding Proposition 8, but that the court would not overturn the existing marriages.
“It didn’t seem to have much traction with any of the judges,” Andy Pugno, one of the leading attorneys in getting Proposition 8 on the ballot, said about the prospect of invalidating the gay marriages. “They seemed very reluctant to do what they see is a harsh outcome.”
Since California does not track gender for marriage licenses, there is no clear indication of the exact number of gay couples who were married during the four months it was legal in the state. In addition, many of those marriages were conducted for out-of-state couples.
Ron Prentice, chairman of the Protect Marriage coalition, said he believed the attorneys arguing in favor of the amendment were successful and that he anticipates a positive ruling.
Even if the justices uphold the amendment, leaders in the pro-marriage movement are warning that the work is not over. On March 20, a group called Yes on Equality were given the OK by the secretary of state to start collecting signatures on a new amendment that would strip the new traditional marriage amendment from the state constitution. The group needs to collect nearly 700,000 valid signatures by Aug. 17 to qualify for the 2010 election.
Earlier in March, two college students announced they planned to circulate an initiative that would eliminate marriage in California, replacing them with domestic partnerships.
“This was really the first and second battle of a very long war,” Prentice said.
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