Proposition 8 Constitutional? Arguments in California Supreme Court today

Today, the California Supreme Court heard a three hour argument in Strauss v. Horton, the challenge to Proposition 8's constitutionality.   We've previously blogged about the issues here and here, including a report of the two panels held at AALS in San Diego in early January.

One of the best recaps of the argument I've read so far has been from Josh Richman of the Oakland Tribune on [San Jose] mercurynews.com here.   The National Center for Lesbian Rights had a blog with minute-by-minute descriptions of the argument starting here.  The California Channel should have streaming video here, but I’ve found it difficult to access. 

The California Supreme Court described the three issues it would hear in today's oral argument as:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The issue of whether Proposition 8 is an amendment (and thus a referendum is proper) or a revision (and thus requiring 2/3 vote of the California legislature, or a constitutional convention) implicates one’s views of the right at stake.   According to the NCLR argument blogger, Chief Justice George “immediately” asked Shannon Minter, arguing for NCLR, whether Proposition 8 overturned the court’s holding in In re Marriage Cases that Sexual orientation was subject to strict scrutiny; Justice Wergerder then followed with a question assuming that if strict scrutiny was not affected, why was Proposition 8 significant enough to be a revision.   Minter’s answer referred to the “existing purposes and principles” of the California Constitution.  Of course, it is these very purposes and principles about which the parties - - -  and the thousands of activists on both sides of this issue - - - so vehemently disagree.

For one side, equality is not a discrete right, but an animating principle of the Constiution.

On the other side, as described by Josh Richman:

Pepperdine Law School Dean Kenneth Starr — best known for his role as a special prosecutor investigating various activities of President Bill Clinton — argued for Proposition 8's proponents that the people's right to change the constitution as they see fit amounts to "sovereignty," and an "inalienable" right "cannot be taken away except with the appropriate process."

Starr said the court's own precedents say a constitutional revision is necessary only for changes to government's basic structure, and to require 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 the constitution is meant to protect minority rights but many exceptions have been carved out over time. All Proposition 8 does, he said, is restore the traditional definition of marriage to a longstanding status quo.

"Rights are important, but they don't go to structure," he said. "Rights are ultimately defined by the people."

While Kenneth Starr was the only advocate arguing that Proposition 8 was constitutional, the opposing side had several parties and advocates in addition to Shannon Minter: Therese M. Stewart on behalf of the City and County of San Francisco; Michael Maroko on behalf of the Tyler Petitioners;  Raymond C. Marshall of Bingham McCutchen on behalf of various amici (Asian Pacific American Legal Center, the California State Conference of the NAACP, Equal Justice Society, Mexican American Legal Defense and Education Fund, the NAACP Legal Defense and Education Fund, Inc.), and The State of California, represented by Christopher Krueger of the Attorney General’s office.

The retroactivity argument was interwoven throughout the other arguments at times - - - and has the potential to cause an odd constitutional and practical situation.  If the court decides that proposition 8 is not retroactive, then California will have to recognize the same-sex marriages that occurred before  Proposition 8 was passed.

The California Supreme Court is required to rule in 90 days. 

RR