Prop. 8 has day in court

[Brett]

Prop. 8 has day in court

By Josh Richman
Oakland Tribune
Posted: 03/05/2009 09:01:00 AM PST

Those urging the California Supreme Court to invalidate Proposition
8's same-sex marriage ban seemed to have had a tough row to hoe
Thursday, peppered by justices' questions on balancing marriage rights
with voters' rights to change the state constitution.

After three hours of arguments, it seemed the seven justices leaned
against voiding the 18,000 same-sex marriages performed last year, but
their stance on Prop. 8's constitutionality was less clear.

They are grappling with issues such as what "inalienable" means when
describing a constitutional right; whether such rights can be limited
or revoked by an amendment, by a revision or at all; and how majority
rule balances with protection of historically disadvantaged
minorities' fundamental liberties. The court will rule within 90 days.

Shannon Minter of the National Center for Lesbian Rights and San
Francisco Chief Deputy City Attorney Therese Stewart contended that
Prop. 8 — approved by 52.3 percent of voters in November to add to the
state constitution a section saying "Only marriage between a man and
woman is valid or recognized in California" — was improperly placed on
the ballot as an amendment with nothing more than petition signatures.
They argued that it actually is a revision: a sweeping change in the
constitution's core principles that should have required two-thirds
votes of the Legislature or a constitutional convention to be placed
before voters.

Prop. 8 returned same-sex couples to "a second-class status," Minter
said — a substantial abridgment of equal-protection principles
underlying the whole constitution. Associate Justice Joyce Kennard and
others questioned whether the measure simply removed the label of
marriage without abridging same-sex couples' rights under domestic
partnership laws, but Minter and Stewart contended that the label
itself is part and parcel of the rights and cannot be excised without
diminishing the whole.
Attorney Raymond Marshall, representing civil-rights groups, argued
that any right of any minority is at risk if Prop. 8 is allowed to
stand. Kennard and Associate Justice Marvin Baxter questioned him on
the state Supreme Court's decision upholding the people's vote to
reinstate the death penalty after the court had ruled it
unconstitutionally cruel and unusual punishment; Marshall replied that
the death penalty, while dealing with the fundamental right to live,
does not single out a special group for discrimination.
Chief Justice Ronald George suggested that if Prop. 8's foes think it
is too easy to amend the constitution, they could seek to change the
initiative process. Marshall insisted that it is the courts' purview
to protect fundamental principles of equal protection.
Associate Justice Ming Chin asked attorney Michael Maroko, who is
representing same-sex couples, whether a remedy would be to have the
state issue licenses only for civil unions to all couples, leaving
"marriage" to the faith community.
"If you're in the marriage business, do it equally," Maroko replied.
"And if you're not going to do it equally, get out of the business."
Associate Justice Kathryn Werdegar noted that the court never before
has been asked to decide if a constitutional revision must involve a
change in government's basic structure, or if changes in individual
rights can necessitate revisions, too. Associate Justice Carol
Corrigan asked whether the petitioners want the court to find any
effort to revoke any fundamental right from a "suspect class" that has
suffered discrimination must be a revision rather than an amendment;
Maroko agreed they do.

Senior Assistant Deputy Attorney General Christopher Krueger made the
state's case that Prop. 8 was an improper, inherently unconstitutional
amendment because it revokes fundamental rights without a compelling
government interest. Most of the justices hounded him about what
exempts a particular constitutional right from the people's power to
amend, pressing him to define "inalienable." Kennard suggested he
wanted the court to "willy-nilly disregard the will of the people" who
drafted the constitution and have amended it many times over: "As
judges, our power is very limited."
But Krueger said that protecting minority rights is not "judicial
hegemony," as Prop. 8's supporters suggest. This court already has
decided the "inalienable" right to liberty encompasses same-sex
couples' right to marry, he said, and there's no compelling reason for
the people to overrule that finding and withdraw that right.

Pepperdine Law School Dean Kenneth Starr argued for Prop. 8's
proponents that an "inalienable" right "cannot be taken away except
with the appropriate process."

He argued that the court's precedents say a constitutional revision is
necessary only for changes to government's basic structure, and
requiring revisions to alter or limit individual rights would be "an
unprecedented revolution in this court's jurisprudence."

"Under our theory, the people are sovereign and can do even very
unwise things that tug at the equality principle," he argued,
acknowledging that the constitution is meant to protect minority
rights but many exceptions have been carved out over time. "Rights are
important, but they don't go to structure. "... Rights are ultimately
defined by the people."

Prop. 8 simply restores the traditional definition of marriage to a
long-standing status quo, Starr said. Questioned by Chin, he agreed
that having the state stop issuing "marriage" licenses altogether
would solve this debate — but that must be the Legislature's choice,
not the court's, he said.

In a chuckle-inducing echo of his time as a special prosecutor
investigating former President Bill Clinton, Starr and the justices
grappled with what the definition of "is" is, in the context of "is
valid or recognized in California." Starr said Prop. 8's plain
language indicates that even those same-sex marriages licenses issued
last year will no longer be recognized if the measure stands.

Chin questioned if that is fair to couples who married in reliance on
the court's ruling that they were entitled to do so. Kennard noted the
only implication that Prop. 8 would be retroactive was "buried" within
proponents' rebuttal to the ballot argument against the measure,
saying only heterosexual marriages "will be valid or recognized in
California, regardless of when or where performed."

This court ruled 4-3 in May to overturn state laws banning same-sex
marriage enacted by the Legislature in 1977 and by the people as Prop.
22 of 2000, finding those laws raised "constitutional concerns not
only under the state constitutional right to marry, but also under the
state constitutional equal protection clause."

George, Kennard, Werdegar and Associate Justice Carlos Moreno were the
majority; Baxter, Chin and Corrigan dissented. The state began issuing
same-sex marriage licenses June 16 and stopped Nov. 5, one day after
more than 7 million Californians approved Prop. 8 with the apparent
intent of rendering the court's May ruling moot.

http://www.mercurynews.com/ci_11838385?source=most_emailed