The Supreme Court just wrapped up the oral arguments in the cases against Proposition 8. During the 3-hour hearing justices put both sides through rigorous rounds of questioning regarding whether Proposition 8 constitutes a revision, rather than an amendment, to the state constitution. Although we won’t know the outcome of this case for weeks (the court has up to 90 days to rule), Prop 8 supporters may have some reason to be optimistic. Two crucial swing votes, Justice Joyce Kennard and Chief Justice Ronald George, were particularly pointed in their questioning about what constitutes a revision to the constitution and the definition of inalienable rights.

Proposition 8 supporters contend that a revision constitutes a fundamental, structural change to our form of government. Placing into the state constitution the traditional definition does not structurally change our form of government. Opponents to Proposition 8 counter that denying homosexuals the “fundamental right” to marriage (created by the court last year in overturning Proposition 22) does alter our form of government by denying them their equal rights. Unfortunately, the core issue in this whole same-sex marriage morass is that bad judicial opinions inevitably beget even worse judicial opinions.

Based on the questions in today’s hearing, it appears the court is still struggling with the legal status of the same-sex couples who married in the June-November window when same-sex marriage was legal in California. The court could rule that Proposition 8 was a valid amendment, but the pre-existing marriages are still legally valid. The issue of retroactivity will be a key point in the forthcoming ruling.

As for the attorneys who argued before the court today, Theresa Stewart, a San Francisco City Attorney, provided the most articulate arguments against Proposition 8.  Although I wholeheartedly disagree with her arguments, she put to shame the Attorney General’s counsel, Christopher Krueger. Mr. Krueger seemed entirely at a loss when pushed by the justices to explain the AG’s position.

But the star of the day (pun intended) was without a doubt Kenneth Starr. As I mentioned in my Twittering, Ken Starr’s presentation should serve as the model oral argument for all law students. Without diminishing the superb education I received at my law school alma mater, I must admit a little jealousy at Pepperdine law students’ fortune in having Dean Starr as one of their tutors. Dean Starr handled the sometimes-intense colloquy with enormous grace, undoubtedly due to his immense experience. 

We shall see whether the court upholds the constitution of our state by ruling Proposition 8 a valid amendment, or uses their power once again to force a social agenda on the people.

If you weren’t able to watch the oral arguments live this morning, the Cal Channel should have the hearing on their web site by tomorrow.

This entry was posted on Thursday, March 5th, 2009 at 12:00 am and is filed under Blog Posts.