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March 13, 2009

Justices seem ready

to uphold Prop. 8

But 18,000 couples will probably stay married

San Francisco--After three hours of oral arguments on March 5, conventional wisdom holds that that the California Supreme Court will uphold the state�s amendment banning same-sex marriage, but retain the marriages of 18,000 lesbian and gay couples who wedded before the measure passed.

The court is considering challenges to the marriage ban amendment, passed in November as Proposition 8.� A decision is due by June 5, but could come sooner.

Proposition was a response to the May 2008 decision by the same court that barring same sex couples from marriage was unconstitutional.

Battling Proposition 8 was likely the largest LGBT mobilization in history. The loss has subsequently led to blame, animus, and challenges to established LGBT leadership.

The 14-word measure says, �Only marriage between a man and a woman is valid or recognized in California.�

The matter before the seven justices was a melding of three separate cases, posing three questions to the court:

Is Proposition 8 invalid because it constitutes a revision, rather than an amendment, of the California constitution?

Does Proposition 8 violate the state constriction�s separation of powers doctrine?

If Proposition 8 is upheld, what happens to the marriages of same-sex couples performed before it passed?

Though California�s seven justices are appointed by the state�s governor, Proposition 8 proponents have threatened to recall any who block the amendment from taking effect.

Three parties appeared before the high court.

The petitioners are a group of married couples, LGBT rights organizations, and broader civil rights and progressive religious and civic groups, opposing Proposition 8. California cities and counties also argued on the side of the petitioners.

On the other side were the interveners, composed mainly of anti-LGBT establishment, conservative religious organizations, and people who circulated the Proposition 8 petitions. They were represented by Kenneth Starr, dean of Pepperdine Law School and former White House special prosecutor during the Monica Lewinsky scandal.

Third was the California attorney general, in a precarious position with the state essentially being sued by both sides. Assistant Attorney General Christopher Krueger represented the state.

�Which side are you on?� Justice Joyce Kennard asked Krueger. She had sided with the majority in the 2008 ruling for marriage, adding a concurring opinion.

�Challenger,� said Krueger. �Attorney General [Jerry] Brown believes it is unconstitutional and should be invalidated.�

Shannon Minter of the National Center for Lesbian Rights was up first for the petitioners. He told the justices that Proposition 8 took away gay and lesbian couples� right to be treated with equality, dignity and respect according to court�s own reasoning in last May�s decision recognizing marriage equality.

Amendment or revision?

A major issue in the case is whether Proposition 8 is a simple constitutional amendment or a more serious constitutional revision. A revision must involve the state legislature or a constitutional convention.

Petitioners argued that it is a revision conflicting with the constitution�s Equal Protection principles and inalienable rights spelled out in the document�s Declaration of Rights.

Interveners argued that it is an amendment, and that the citizens of California have the inalienable right to amend their constitution, which they have done nearly 500 times.

In earlier written briefs, the attorney general undermined the petitioners� case, which Brown supports, by agreeing with the interveners that Proposition 8 is an amendment.

Minter explained that Proposition 8 is a revision because it establishes that a majority can strip fundamental rights from a minority group it might not like.

A revision substantially changes the basic nature of government, according to Minter, while an amendment is a smaller change that has to be consistent with the current constitutional structure.

All sides agree there is little case law defining the two terms.

No more marriage, civil unions for all

Justice Kathryn Werdegar, one of the four majority justices in the 2008 marriage case, asked Minter if a solution would be to start calling all civil marriages, same-sex and opposite-sex, �civil unions� and reserving the term �marriage� for religious institutions.

That plan has been floated widely, including by noted conservative Pepperdine law professor Douglas Kmiec. During the hearing, Starr was chided about that by Justice Ming Chin, a dissenter to the 2008 marriage decision.

Minter responded to Werdegar that such a plan �would not run afoul of the limits and principles� the court proffered in the marriage decision.

A simple vote can end minority rights

Raymond Marshall, representing the Asian Pacific American Legal Center, a friend of the court, spoke next for the petitioners. He began by telling the justices that �Proposition 8 is not just about the rights of gays and lesbians to marry. It creates a radical new rule that majorities can deprive minorities of fundamental rights.�

Marshall said the case is not a political argument over amending the state constitution, because nothing is more fundamental than equal protection under the law, which runs through all other fundamental rights, including the right to vote and the right to marry.

Justice Kennard wanted to know if there was a way to carve out a limited exception by changing the name of the right.

Kennard then gave the first signal that she is not comfortable overturning what the voters did, by lecturing Marshall on the right of the people to amend the constitution.

Michael Maroko, one of the attorneys who argued the marriage case last year, was up next. He represented married couple Robin Tyler and Diane Olson.

Maroko told the justices that equal protection was an �evolving concept,� and that most rights existed before marriage was considered a fundamental right.

�Is civil union for all a viable solution?� asked Chin. �Should the state get out of the marriage business?�

�If the state is in the marriage business, it should do it equally,� answered Maroko. �If it is not going to be there equally, then get out of the marriage business. That is our position.�

�As you pointed out in the Lockyer decision [last year�s marriage ruling], nomeclature matters,� argued Maroko, making the point that �taking away the right [of marriage] is a revision to the constitution.�

�Un-marry� 18,000 couples

Kennard asked why the 18,000 marriages already performed should remain valid.

�There�s a presumption that all legislation is prospective,� Maroko answered before turning to voter intent.

�The language on the ballot did not say that the 18,000 marriages would be invalidated. There was no intent to un-marry the couples.�

Therese Stewart, the next attorney to argue, added to that by telling the justices that in Massachusetts, a defeated proposal to make same-sex marriages unconstitutional contained language specifically saying that existing same-sex marriages would become civil unions.

California had no such language, repeated Stewart, who represented the state�s cities and counties.

Krueger, the assistant attorney general, appeared uncertain at times about what he was arguing, and could not answer some of the questions put to him. His time presenting was among the most contentious.

What is an �inalienable� right?

Krueger argued that in Lockyer, the court articulated a new inalienable right, same-sex marriage.

�So the voters can disagree?� asked Werdegar.

�Yes,� replied Krueger.

�So, you�re arguing that the people of California can amend their constitution, but only in limited ways?� asked Justice Carol Corrigan, a dissenter in Lockyer, who also wrote a separate opinion saying that the court could only overrule the voters with a compelling constitutional reason.

�Yes,� answered Krueger again.

�How do we define the limited ways?� asked Corrigan.

�Whether or not it is an inalienable right,� Krueger said.

Chief Justice Ronald George, who wrote the Lockyer decision, tried to get Krueger to clarify by asking him to define an inalienable right.

Krueger stumbled.

�What is that special right that cannot be removed without it being a revision?� George asked.

�The right to liberty,� Krueger answered.

Justice Marvin Baxter, who dissented in Lockyer saying with Chin that the decision violated the separation of powers, tried to get Krueger to clarify his point by using the example of the right to life in death penalty cases.

Krueger, again, could not answer.

Is voting to amend �inalienable�?

�Is the right to amend the constitution an inalienable right of the people?� asked George.

�Yes,� said Krueger, explaining that the court needs to �harmonize� the different provisions of the constitution.

Three justices, during Krueger�s presentation, called the attorney general�s position �novel,� partly because of his break with the petitioners on the �revision� argument.

Krueger said the people have the right to amend the constitution, but not by initiative until 1911, but that they do not have �unbridled power� to take away rights from segments of society, or to take away liberty without a �compelling reason.�

�Do they have the right to change the Constitution unless the Supreme Court doesn�t like it?� asked Corrigan.

�There is a way to strike amendments,� Krueger said.

�By calling them a revision,� Corrigan interrupted, �but since you are not calling this a revision, which amendments are okay and which ones are not?� Krueger answered that the court has no compelling reason to strike the right to marry, and Proposition 8 should be invalidated for that reason.

The people can vote free speech away

Starr, up next, told the court that calling Proposition 8 a revision would be an �unprecedented revolution.�

�Let�s say an amendment was passed deleting the right of free speech,� questioned George.

After listing reasons in the U.S. Constitution why such an amendment would be �unthinkable,� Starr eventually said, �Yes. There is no limit on the power of amendment.�

�Under our theory,� Starr continued, �the people are sovereign and can do unwise things, including things that tug at the equality principle.�

Starr added that the right to marry, like the right to free speech, could be removed by voters �so long as it is clear to the people what they are voting on.�

�We govern ourselves,� Starr said, �and we may govern ourselves unwisely.

According to Starr, a ban on adoption by LGBT couples would also pass this test.

Chin asked about the theory that constitutions protect the rights of minorities.

�Each of us is a minority of one,� Starr answered, inferring that constitutions only protect individuals.

�But Proposition 8 does not erode any of the considerable bundle of rights this state has very generously bestowed,� Starr continued. �All it did was restore the traditional definition [of marriage] in place since the founding of the constitution.�

�Interim marriages�

Chin asked Starr about the proposed civil union compromise.

�Does that solve the problem, and is that the province of this court?� Chin asked.

�Yes and no,� Starr replied.

In that explanation, Starr called the 18,000 marriages �interim marriages� and argued that �there was always a swirl of uncertainty� as to the validity of those marriages.

This angered Corrigan, who interrupted, �There may have been a swirl of public opinion, but this court said they were the law of California. If the people cannot trust this court with what the law is, who should they ask?�

George asked if the state could raise the marriage age to 21, then invalidate the marriages of those legally married at a younger age.

Starr tried to dodge the question by deferring to �common law tradition� and �putative spouse doctrine,� where people who live together and consider themselves married become married in the eyes of the law.

Pressed, though, Starr said, �With this wording, they [the underage marriages] would no longer be valid under our theory.�

Starr continued to assert that �the world knew this [the validity of the same-sex marriages] was going to be an issue,� so in that context, the people have the right to invalidate the marriages.

�So what was recognized November 3 is not recognized November 5. Is this not retroactivity?� asked George.

�The lodestar is intent,� Starr answered. �It�s the restoration of 170 years of history. To the reasonable reader, the intent of the voters is clear.�

�It�s only a name�

During rebuttal, Maroko revisited the issue of nomenclature by describing a scenario where an amendment passed that male judges would continue to be called judges, but female judges would be renamed �commissioners.�

�You could still rule on cases,� Maroko said. �You wouldn�t care, would you? It�s only a name.�

The court will rule within 90 days.

Not waiting, college students around the state are taking action on their own.

Ali Shams and Kaelan Housewright began a campaign calling for the term �marriage� to be removed from state laws and replaced with �domestic partnerships.�

Charles Lowe founded a California group called Yes! on Equality.

Its mission is to repeal Proposition 8 with another constitutional amendment.

Stephen Stapleton, another student, is also filing a petition for an amendment to repeal Proposition 8.

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