Prop 8 Oral Arguments: Reactions

Gay Marriage

Could You Ask For A Better Day??

The proposition 8 oral arguments were spectacular.  Ken Starr was a Rock Star in that courtroom and Justice Kennard is my new hero.  Wow.   How to say it other than that?  I’ve been fighting the good fight on this since before the prop 8 battle began, but I have to admit, I was going into this hearing more than a little nervous.

To start off, the justices hardly let the opposition’s lawyers even get their hellos in before they started ripping them with questions.  They seemed completely uninterested in speeches and pontifications, and unimpressed with the emotional aspects of the opposition’s most loved rhetoric.  Two hours later, the court still had questions.

After quite a bit of back and forth, Justice Joyce Kennard indicated that she did not agree with the lawyers for same-sex couples who argued that Proposition 8 is invalid because it is a constitutional revision, not an amendment.

With that one fell swoop she laid aside the bulk of the first three lawyer’s arguments.  Since Justice Kennard voted to overturn proposition 22, her vote is critical in the decision to overturn proposition 8.  Her opinion may have the deciding vote.

By far the worst lawyer and arguments were for Jerry Brown’s case.  All I can say is THANK GOODNESS FOR PROTECTMARRIAGE.COM bringing in Ken Starr!!  Jerry Brown’s case was TERRIBLE.

He argued that Prop 8 was a legal amendment, but a bad one and the judges shouldn’t allow bad laws to be made.  The justices looked blank for a minute and then open season began as they ripped into his “novel theory”.  Justice after Justice quoted to him from the constitution which itself says: Power comes from the people.  Judges get their power from the people.  Not the other way around.  Jerry Brown’s counsel, tripped up early and never really got his footing back.  It was a complete disaster.  Um….uh…I don’t know….yep.  Lawyer fail.

Justice Kennard said “…what I’m picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people,” she said.  “Past decisional law does not, in my view, support the argument that the people couldn’t do what they did.”  “The people established the constitution. As judges, our power is very limited.”

Hooray for Justice Kennard! She dominated the questioning and cut through the lousy rhetoric again and again.

The opposition’s most effective lawyer, Ms. Therese Stewart, was their most articulate and quick thinking, though she came off shrill.  She argued that proposition 8’s overturn by the court wouldn’t be overthrowing the people, because the people wrote the constitution, and that was what said that they needed to go through the revision process.

Unfortunately she got caught up in the emotional aspects of the case, and didn’t make a clear argument for why prop 8 was a revision not an amendment.  The impression I had of her was negative.  She was angry during her comments, practically livid at either the perceived injustice supposedly done, or the fact that her side was doing so poorly. . . it was hard to tell which.

I think Starr’s approach was much cleaner.  He came across as your favorite grandpa, not trying to sell you on something you don’t need, and not trying to guilt you into reacting, just telling it the way it was.

With less than half the time allotted the opposition, Ken Starr hit home run after home run.

The people govern.  California has written into it’s constitution broader powers of government by the people than any other state.  For the judiciary to overturn that power would be tantamount to a revolution.  He actually said that!   I practically stood and cheered!

The only part where there seemed to be discord between Starr and the justices was over the fate of the 18,000 people who entered into same sex marriages during the 4 months between the prop 22 ruling and the prop 8 election.  There is understandably a reluctance on the part of the judges to go back on what they told the people.  They came out last year and declared “Marriage is a right and you have it!  GO!  Get married!”  For them to go back now and tell the people those marriages are not valid is a losing proposition for them.  However, it has to be pointed out that those marriages were performed only because the court denied a stay, even though they knew proposition 8 was coming full steam down the pipe.  They didn’t listen to the will of the people, and this is the unfortunate consequence.

Ken Starr put it in a better light.  The court is not rescinding those marriages, or any of their rights, only changing the name that it’s known by.  He’s right.  The opposition has been screaming “Don’t divorce us!” but that’s not what’s on the table here.  What is?  A definition.  Starr brought that home very clearly.

We owned the hearing today, in no small part to an honest case articulated perfectly by Starr who rattled off answers to every question posed.  By the time he finished, the justices had no more questions.  That’s saying a lot for judges who seemed full of questions.

We did well today.

–Beetle Blogger

See this from

Yes on 8 Urges California Supreme Court to Uphold Proposition 8
“The constitution has now been amended by the sovereign people who are its creators.”
March 05, 2009

San Francisco – The lead attorney for the proponents of Proposition 8 and the campaign committee responsible for its enactment today told the justices of the California Supreme Court that, “the constitution has now been amended by the sovereign people who are its creators. That is the beginning and end of this case.”

Kenneth W. Starr, lead attorney for, told the Court that the people have the final word on what the state Constitution says. “The people have the inalienable right to control their constitution.” Starr is a former judge of the US Court of Appeals in Washington, DC and served as Solicitor General of the United States, where he represented the nation in more than two dozen cases before the United States Supreme Court.

The legal challenges against Proposition 8 claim that the measure could not be added to the constitution by ballot initiative, but rather only by a constitutional “revision,” requiring either a two-thirds vote of the Legislature or a statewide Constitutional Convention. California has not had such a convention since the last one held in 1879. Attorney General Jerry Brown, while arguing that Prop 8 is not an improper revision, advanced a novel legal theory that the measure should still be invalidated because Starr verbally testified to the court it allegedly infringes on the “inalienable” right of same-sex couples to liberty.

Starr spoke before the justices for 60 minutes, the longest period afforded any of the attorneys who presented arguments to the Court. He stated that Proposition 8 was a properly enacted amendment to the state constitution, and not a revision as alleged by those challenging the measure. “Proposition 8’s brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions, or exclusions. Only marriage between a man and a woman is valid or recognized in California. Describing Proposition 8 as a revision to the state constitution, depends on characterizing Proposition 8 as a radical departure from the fundamental principles of the California Constitution.  But that portrayal is wildly wrong.  Proposition 8 is limited in nature and effect.  It does nothing more than restore the definition of marriage to what it was and always had been under California law before June 16, 2008 – and to what the people had repeatedly willed that it be throughout California’s history. It is now part of the state constitution.”

Attorney General Jerry Brown agreed that Proposition 8 is not an improper revision of the constitution, but nevertheless argued that the measure should be invalidated, urging the Court to elevate the rights of same sex couples above the right of the people of California to define marriage as only between a man and a woman.  Starr said of that contention, “to embrace what truly would be a revolution it is utterly without formalization in the courts jurisprudence.”

The Supreme Court will issue its ruling within 90 days. The cases are Strauss v. Horton, S168047; City and County of San Francisco v. Horton, S168078; and Tyler v. State of California, S168066.



Photos Courtesy of NOM

The California Supreme Court Oral Arguments Video

Vodpod videos no longer available.

more about “The California Channel: Video on Demand“, posted with vodpod

There is an intro video to the State Supreme Court, but after that is the actual hearing. You can skip ahead, but I thought the intro was informative.

—Beetle Blogger

Proposition 8 Hearings LIVE

Prop 8 Hearings—Watch the future of your vote live!

Watch the proposition 8 hearing live here!

CalChannel is having difficulty, try the new link.

For live reactions, follow protectmarriage beetlebabee and nomtweets on twitter.

Also check hashtags #prop8 #prop8arg

Opposition arguments went weakly.  The justices asked questions dominated by Justice Kennard who seems to be leaning toward preserving the right of the people to decide how they will be ruled.  The opposition took two hours, the hearing will be extended until 1pm.

Ken Starr up now!  “If the court disregards the power of the people to choose their laws, it would be a revolution!”  Our argument comes down to power of people, if people are fully informed in their vote, vote should be upheld, even if the government thinks it’s unwise.

On the validity of the 18000 marriages performed in the 4 months:

Judges: We said they could get married, they believed us and acted in good faith, wouldn’t it be unfair to then yank that away?

Starr: Prop 8 was a check on the power of the judiciary.  The prop 8 draftsmen intended the law to continue the definition of marriage unbroken from the beginning.  Everyone knew that the 18000 marriages could be invalid, including the people entering into the marriages.

Opening Statements are now concluded, Starr hit home runs!  Earned respect of the court.

Rebuttals Begin… I just can’t say enough how the opposition shot themselves in the foot with their choice of lawyers.  It’s an emotional argument they have, but they were tripping all over themselves.  Jerry Brown’s arguments were particularly poor.

For a recap of Ken Starr’s points see this post at Opine:

My Take:

Our side did a great job!  Jerry Brown should never show his face in public again, his counsel was the biggest logic fail I’ve ever experienced in a courtroom.  The opposition’s position was best characterized and delivered by Stewart, who although articulate seemed very emotionally involved in the subject, her anger during the hearing was only thinly veiled.  I don’t think that came across well.

Now, the wait.  It could take weeks for the judges to review the arguments and come to a decision.  My gut says we won hands down.  Justice Kennard voted to overturn prop 22 but she seems to have flipped.  Very good.

—Beetle Blogger

See my full write-up here

Prop 8 Oral Arguments: Reactions

Prop 8 Oral Arguments Tomorrow


Prop 8 Oral Arguments

The California Supreme Court will hear oral arguments on Proposition 8 tomorrow morning, Thursday, March 5.

The justices will hear arguments on three law suits regarding marriage.

Shannon Minter, Legal Director for the National Center for Lesbian Rights in San Francisco, will first argue against Prop 8. Minter is a transsexual who changed to self-identifying as a man over a decade ago. Ken Starr, former U.S. Solicitor General, will then argue in favor of Prop 8.

“We will not mince words,” Starr wrote in his court papers. “The attorney general is inviting this court to declare a constitutional revolution.”

You can watch the oral arguments online, for free, at

Arguments begin at 9 a.m. Pacific Time.