By Susan Brinkmann, OCDS
Staff Writer
The California Supreme Court will hear arguments tomorrow over the constitutionality of Proposition 8, the November ballot measure that reinstated a ban on same-sex marriage. Their decision is expected within 90 days of the hearing.
The three hour hearing, to be held in San Francisco, will determine whether the voters’ desire to maintain the traditional definition of marriage – the union between one man and one woman – will be allowed to stand or if it will be overturned by proponents of same-sex marriage.
Shortly after the amendment passed, three lawsuits were filed at the California Supreme Court by same-sex marriage advocates, claiming Proposition 8 is itself unconstitutional. Since that time, 43 groups have filed written arguments asking that Proposition 8 be overturned while twenty organizations have argued that the measure should be uphpeld.
At stake are the 18,000 marriages contracted after a May 15 ruling by the same court that gave same-sex couples the right to wed.
Gay rights lawyers and the city of San Francisco contend that Proposition 8 was an illegal revision of the state Constitution. It is a novel argument that required the attorneys to try to distinguish Proposition 8 from other cases in which the court rejected revision challenges.
California Atty. Gen. Jerry Brown also asked the court to overturn the proposition, but on other grounds. He argued that “inalienable rights” cannot be eliminated without compelling reasons, an argument that, if accepted by the court, would make major new law in California.
However, Stephen Barnett, emeritus law professor at the University of California at Berkeley told the Los Angeles Times that both of these challenges were “long shots.”
The lead attorney for supporters of Proposition 8 is Kenneth Starr, the former prosecutor in the impeachment of President Bill Clinton. He contends the voters have the power to define marriage under the state Constitution and the court must accept their decision.
“The legal question is simple,” said Mathew Staver, president of Liberty Counsel and dean of the Liberty University School of Law, who filed a friend of the court brief in support of Proposition 8.
The Court must decide if Proposition 8 represents a provision that changed “the substantial entirety of the Constitution” and if it changed the basic plan of California government such as changing its fundamental structure.
“The answer to both questions is ‘No!’” Mr. Staver said in a press release. “The California Supreme Court also stated: ‘The right of initiative is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter.’”
Liberty Counsel’s brief argues that invalidating Proposition 8 would have a devastating effect on the constitutional rights of those who exercised their right to vote on the initiative.
“The California Supreme Court should continue to honor a cornerstone of California’s constitutional foundation – separation of powers. If the Court does not uphold Proposition 8, it will no longer be anchored to the bedrock principles that have held this state republic together for 150 years. Instead the court, legislatures, and voters would be left standing on shifting sand to be tossed about by the winds of social and political change.”
Liberty Counsel’s brief also argues that Proposition 8 invalidates all same-sex marriages entered into prior to November 4, 2008, because it states that only marriage between one man and one woman shall be valid or recognized in California.
Most legal analysts expect that the court will garner enough votes to uphold existing marriages but not enough to overturn Proposition 8.
The court is under intense pressure, however, with opponents of gay marriage already threatening to mount a campaign to boot justices who vote to overturn the initiative.
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