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SACRAMENTO, Calif. — High profile attorney Kenneth W. Starr, a former U.S. Court of Appeals Judge and U.S. Solicitor General, will serve as lead counsel for voters who approved Proposition 8.
The announcement of Starr’s appointment came Dec. 19, the same day the Yes on 8 team filed legal briefs in an attempt to stave off a challenge of the new state amendment, which was approved by voters Nov. 4. At least one of the suits was filed the day after the election.
“We only benefit by bringing in other knowledgeable attorneys, especially those who are experts in constitutional law like Judge Starr,” said Andrew Pugno, general counsel for ProtectMarriage.com and the Proposition 8 Legal Defense Fund, the parties defending against the suit. “He adds another dimension to our ability to present arguments to the court.”
Hours later, though, California Attorney General Jerry Brown stunned Proposition 8 supporters by announcing that he was breaking his own vow to defend voters against the legal challenges. He outlined his arguments in a last-minute filing of legal briefs to the court.
In his brief, Brown argued that the amendment should be tossed because it removed an inalienable right.
“Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification,” Brown wrote.
“It is disappointing that the Attorney General has refused to defend the vote of the people as the law instructs him to do,” Pugno said in a statement released later that night. “It will take some time to digest this new and unusual legal argument he has created. As the only remaining party defending Prop. 8’s validity in these lawsuits, it is more important than ever that we remain focused on our role of providing the court with the law and argument that shows Prop. 8’s validity.”
In all, three separate cases challenging Proposition 8 are under review by the state Supreme Court. Oral arguments in the three suits could come as soon as March. The suits are seeking to overturn the voter-approved amendment, which now limits marriage in California to one man and one woman.
One of the suits alleges that Proposition 8 was too wide and sweeping of a change to qualify as a ballot initiative. Instead, they argue the wording amounts to a constitutional revision requiring either a two-thirds vote of the Legislature or a statewide Constitutional Convention. California has not had such a convention since 1879.
Starr, who was not granting interviews, was a prominent newsmaker during President Bill Clinton’s administration when he served as a special prosecutor investigating the Monica Lewinsky scandal.
As U.S. Solicitor General, Starr argued 25 cases before the Supreme Court. He remains active in the professional and educational legal community and now serves as dean of Pepperdine University’s law school.
Pugno, in a phone interview shortly after he filed the briefs, said he couldn’t speculate on how much sway a high-profile attorney such as Starr could have on the high court. Another prominent California attorney, Gloria Allred, is representing one of the plaintiffs in the case.
“It’s difficult to say, but our focus is more on bring the very best arguments before the court,” Pugno said.
Among their arguments is that Proposition 8 restores the will of California voters, who in 2000 voted for similar language to be added to state law. The same court that overturned the eight-year-old law is hearing the appeal of Proposition 8.
“Petitioners’ challenge depends on characterizing Proposition 8 as a radical departure from the fundamental principles of the California Constitution,” reads the brief. “… 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.”
Pugno said he believes Starr and his team are on solid legal ground.
“We are confident that the will of the voters and Proposition 8 will ultimately be upheld,” Pugno added in a media statement.
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