California State Supreme Court to hear Marriage Amendment challenge

by Lori Arnold |

SACRAMENTO, Calif. — The California Supreme Court will hear oral arguments March 5 over challenges to Proposition 8, the successful ballot measure that amended the state constitution to permit only marriages between one man and one woman.

California voters approved Proposition 8 on Nov. 4 by a 52 to 48 percent margin, but the following day numerous lawsuits were filed by pro-gay groups seeking to block its implementation.

According to a spokesman from Protect Marriage, the coalition that crafted and organized the amendment drive, nearly 70 amicus briefs were filed in advance of the hearing. Opponents of the measure are arguing that Proposition 8 amounts to a significant revision of the constitution, which cannot legally be done through the ballot process, and secondly, that the wording of the amendment violates separation of powers provisions.

In his brief to the court, California Attorney General Jerry Brown sided with voters in saying the proposition was in fact an amendment and not a revision. He also rejected the argument that the measure was a violation of the separation of powers. But in what has been called a novel approach, Brown argued the law should be tossed because it violates inalienable or natural rights. It was not clear at press time if the justices would consider his argument.

Finally, if Proposition 8 is upheld by the justices both parties are seeking a determination on the validity of the estimated 18,000 same-sex weddings that were performed during a four-month window when the marriages were legal in California.

Those marriages became legal in June after the same Supreme Court ruled that Proposition 22, OK'd by voters in 2000, was unconstitutional. Proposition 22 only changed state law, which can be trumped by the constitution.

Perhaps in a preview of what he might argue before the court, Yes on 8 lead counsel Kenneth Starr, dean of the Pepperdine University School of Law, discussed the issue Feb. 10 at the National Religious Broadcasters convention in Nashville, Tenn. He said the issue does not center so much on the merits of same-sex marriage, but on whether voters have the right to overturn judicial rulings.

"What is being argued before the California Supreme Court is: Do the people have power under the California constitution to amend the constitution so as to overturn a specific decision of the California Supreme Court? It's a very important but nonetheless different issue than the underlying constitutional issue of the right to marry someone of the same sex," said Starr, who has not been granting media interviews about the case.

Once the hearing is over, the justices have 90 days to issue a ruling.


Dissing donors
In the meantime, supporters of Proposition 8 are pursuing a separate case seeking to protect the publication of donor names following widespread cases of harassment and vandalism by gay-rights supporters. In filing the suit, Protect Marriage officials were trying to spare many of the smaller contributors who were hassled at the workplace because the state law requires employment information for donations of $100 or more.

On Jan. 30, a judge declined to issue a preliminary injunction blocking the release of additional contributors. The case, though, continues through the courts.

To keep the pressure on donors, a move Proposition 8 leaders call intimidation, several Web sites have been established to highlight contributors, including the newly created www.eightmaps.com, which provides virtual thumbtacks marking home locations for donors. Although it does not list the address, the site does include the name of the donor and amount given.

Even former President Bill Clinton found himself at the center of No on 8 when he was scheduled to give a keynote address at the Manchester Grand Hyatt, the target of a boycott by gay-activists and union workers. A boycott of the bayside hotel was launched last year after developer Doug Manchester donated $125,000 to the Yes on 8 campaign. Despite efforts to persuade Clinton to cancel his engagement, he went on with the address.

Michael Foust of BP News Service contributed to this article.


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