Wednesday, March 4, 2009

California Supreme Court on Marriage Definition

Supporters of the traditional definition of marriage as being between a man and a woman are confident of success in their historic legal battle that takes place tomorrow in San Francisco at the California Supreme Court.

On the eve of the debate over the legality of 'Prop 8' in the November elections, when Californians voted to uphold the traditional definition of marriage, Protect Marriage said in a statement, 'We have confidence that the Court will uphold Proposition 8. Why do we believe this? Because the law is clearly on our side....'

At issue is whether Prop 8 that allowed people to vote on the definition of marriage is legal. The November vote overturned a Supreme Court ruling in May when justices ruled by 4-3 to allow same-sex marriage.

'...we are very confident that the Court will respect the right of the people to have decided this issue. The people have reserved to themselves the sovereign right to define their constitution. By a 600,000 vote margin, they voted to enshrine the traditional definition of marriage in the constitution,' said Protect Marriage.

Their Lead Counsel is Kenneth W. Starr, the former US Solicitor General who attempted to have Bill Clinton impeached over the Monica Lewinsky affair. He also served as a Judge for the Court of Appeals, DC Circuit.

Protect Marriage's statement continued, 'As Dean Kenneth W. Starr has told the court in his brilliantly written briefs, “The constitution has now been amended by the sovereign people who are its creators. That is the beginning and end of this case.”'

A total of 52.5% of Californians voted for traditional marriage in November while 47.5% voted against.

Supporters of same-sex marriage argue that Prop 8 was a 'revision' of the Constitution rather than an 'amendment', so that it could only be placed on the ballot by a legislative vote or a new statewide Constitutional Convention. The last time such a convention took place was in 1879.

Tomorrow's hearing before seven justices has weighty supporters of same-sex marriage. In favour are Mayor Gavin Newsom and the city of San Francisco, California's Governor, Arnold Schwarzenegger, and both houses of the Legislature, and the state's Attorney General, Jerry Brown, the city of Los Angeles and the county of Santa Clara.

A detailed article giving legal background and analysis can be found in the San Francisco Chronicle -

Bob Egelko, Chronicle Staff Writer, reports that the Supreme Court's senior justice, Joyce Kennard, who originally voted for same-sex marriage, 'seemed to signal shortly after Prop. 8 passed that she was inclined to uphold it.

When the court voted to take up the lawsuits challenging Prop. 8 two weeks after the election, Kennard cast the lone dissenting vote. She said the only issue that the court needed to review was whether the 18,000 same-sex marriages conducted before the election were valid.'

Opponents, say the Chronicle, argue that dissolving pre-election marriages would amount to a state-compelled divorce, trampling on 18,000 couples' family and property rights.

They also argue that it interferes with judges' authority to shield minorities - racial, religious, political or sexual - from discrimination.

Protect Marriage counter, 'On the Attorney General’s novel contention that even though 'Proposition 8 was a validly enacted amendment, it should still be invalidated as violating the right to liberty of same-sex couples, “[This position is] utterly without foundation in this Court’s case law. His theory fails at every level. The Attorney General is inviting this Court to declare a constitutional revolution that would fundamentally alter the role of the judiciary, putting judges in the role of supreme overseer of the people’s constitution-making power, a result patently contrary to popular sovereignty.”

Tomorrow's hearing begins at 9 am and can be viewed live on television: 9:00am pacific time on the California Channel and online at

pic shows supporters and opposers of same-sex marriage when the first of the marriages were held at the Civic Center after the ruling came into effect in June last year

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