Commentary on social and moral issues of the day

Arguments in Place as Prop. 8 Hearing Nears

Bob Egelko

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Monday, January 26, 2009

In thousands of pages, the combatants in the Proposition 8 fight have made their case to the state Supreme Court.

On one side: the people's right to amend their Constitution and define marriage. On the other side: the courts' duty to protect minorities, such as gays and lesbians, from the tyranny of the majority.

The briefs are all in, from sponsors and opponents of the ballot measure banning same-sex marriage and their far-flung allies - organizations as mainstream as the AFL-CIO and the California Catholic Conference and as unconventional as the Church of the Messiah and a No on 8 group called Love, Honor, Cherish.

The next step is a court hearing, perhaps by the first week of March in San Francisco. A ruling, due 90 days later, should be the last word on the validity of the Nov. 4 initiative and the 18,000 same-sex weddings performed before it passed, at least until the losing side puts the issue on the ballot again.

Prop. 8 declared that only marriage between a man and a woman is valid or recognized in California. The measure amended the state Constitution after the state's high court ruled May 15 that the previous ban on same-sex marriage - endorsed by the voters in 2000 - discriminated on the basis of sexual orientation and violated the constitutional right to marry the partner of one's choice.

Opponents' case

Opponents argue that Prop. 8, though now part of the Constitution, is invalid for three reasons:

  • It had such a drastic impact on individual rights that it amounted to a revision of the Constitution, not merely an amendment. A revision can be placed on the ballot only by a two-thirds legislative vote or by delegates to a constitutional convention.

  • It violated the constitutional separation of powers by stripping the courts of their authority to protect a minority group from discrimination.

  • It eliminated "inalienable rights," those protected by the Declaration of Rights in the opening clause of the state Constitution, without a compelling reason. That argument comes from Attorney General Jerry Brown, who reversed course after defending the previous marriage law before the court.

Brown's new stance left the defense of Prop. 8 to its sponsoring organization, Protect Marriage, which portrays its case as a defense of democracy itself.

Starr's argument

"The Constitution has now been amended, by the sovereign people who are its creators. That is the beginning and end of this case," the group's lawyers - Kenneth Starr, the prosecutor in President Bill Clinton's impeachment, and Andrew Pugno - said in their final round of written arguments last week.

Prop. 8, they said, makes no far-reaching changes in the structure of state government - a standard the court has used to define a constitutional revision - but merely restores the long-standing definition of marriage while leaving same-sex couples' rights intact under domestic partner laws.


Read the entire article on the San Francisco Chronicle website (new window will open).

Posted: 08-Feb-2009

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