Opponents of California's gay marriage
ban got their day in court yesterday.
It's what gay rights activist have
wanted all along. In fact, the state Supreme Court rejected a
similar request before the ban was passed by voters in November.
But the results may be disheartening to
those seeking to have the ban struck down. The seven justices who
were responsible for bringing gay marriage to California last May
when they struck down a 2000 voter-approved gay marriage ban appeared
hesitant to rule against the people a second time around.
Voters narrowly approved the gay
marriage ban – Proposition 8 – by 52% in November. It reversed
the court's decision that said marriage was a fundamental right that
could not be denied to gay and lesbian couples when it defined
marriage as a heterosexual union in the state constitution.
Defending Proposition 8 was Kenneth
Starr, the former independent counsel who investigated President Bill
Clinton in the Whitewater affair. While admitting that voters at
times make “unwise” decisions, Starr argued they have the final
say on rights through the ballot box.
“The people do have the raw power to
define rights,” Starr told the justices. “The people are
sovereign and they can do very unwise things, and things that tug at
the equality principle.”
Justices appeared swayed by the
argument. Associate Justice Joyce Kennard, who voted in favor of gay
marriage last May, said, “What I'm picking up from the oral
argument in this case is the court should willy-nilly disregard the
will of the people.”
And Justice Carol Corrigan, who
dissented in last year's decision, asked a lawyer arguing for
invalidation, “Is the essence of your argument that the people have
the right to amend their constitution as long as it isn't done in a
way the Supreme Court doesn't like?”
Shannon Minter, the National Center for
Lesbian Rights attorney who successfully argued for gay marriage last
year, disagreed, saying Proposition 8 puts the rights of every
minority at risk of a majority vote. He said such changes to the
state constitution could only be initiated by the Legislature, not a
“A simple majority cannot be
permitted to take away rights from a historical disadvantaged
minority without substantially altering the very operation and
purpose of equal protection and the court's ability to fulfill its
core constitutional function of enforcing equal protection,” he
The court will also decide the fate of
the 18,000 gay marriages performed during the June-to-November
“summer of love” when gay marriage was legal.
Several justices cornered Starr when he
attempted to argue that Proposition 8's language left little room for
interpretation that gay marriages performed while they were legal
were now void. To make his point he raised the specter of polygamy.
Starr argued that gay marriages were an analog to plural marriages in
so much as it might be “unfair” for those wishing to enter either
union but they remained unlawful in the eyes of the law.
Justices quickly discounted Starr's
“unfair but unlawful” theory and focused their attention on the
wording of the measure. Justice Kennard questioned if voters
intended to void those marriages.
“Mr. Starr, it would appear that in
this particular case there is no clear indication that at the time
the voters of California voted for the passage of Proposition 8, that
the voters understood that their vote in favor of Proposition 8 would
mean that those people – those couples – who got married before
enactment of Proposition 8, would after passage of Proposition 8 be
unmarried,” Kennard said.
Chief Justice Ron George went further
when he strongly implied that the backers of Proposition 8 had misled
voters on the issue through unclear language.
Discussing the issue yesterday on
MSNBC's 'Rachel Maddow Show', San Francisco City Attorney Dennis
Herrera said he remained “cautiously optimistic” that the state
Supreme Court would rule to strike down Proposition 8. San Francisco
is one of the 15 municipalities involved in the lawsuit.
“I think what was very telling was
the Chief Justice's questions of judge Kenneth Starr, who
representing the other side said very, very clearly that if Prop. 8
was allowed to stand issues such as free speech and other fundamental
rights that many of us take for granted would be freely able to be
changed by the vote of the people,” he said.
A decision is expected in 90 days.