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



  1. Delirious said,

    March 5, 2009 at 8:09 pm

    I listened to a good portion of the hearing, and I would agree with your take on it. I was actually very surprised that the judges seemed to disregard the emotionality of the case. I was also surprised at the desperation in the voice of some of the same sex marriage lawyers. I felt that at times they were literally speechless, unable to decide the best way to answer the questions posed them. On the other hand, I felt that our lawyer was very well prepared and very confident! I really don’t think I’m looking at this through biased eyes, I really thought, like you said, that we owned this hearing!

    Hooray for democracy!!

  2. March 5, 2009 at 8:26 pm

    […] Beetle Babee: Prop 8 Oral Arguments: Reactions […]

  3. Euripides said,

    March 5, 2009 at 8:45 pm

    Even the LA Times had to concede the arguments to Kenneth Starr. That’s huge progress coming from that newspaper.

    Keep in mind folks, that the court sometimes is not swayed by argument. Justice Kennard’s go-get-em approach was refreshing, but the court still has to deal with Chief Justice George.

    Great write up bb!

  4. beetlebabee said,

    March 5, 2009 at 8:50 pm

    Ah the L.A. Times. The difference was so stark, how could they maintain credibility without it? I’m seeing a lot of places predicting that the 18,000 people who married during those four months will still be called married, but I just don’t see how they could squeak that AND say that prop 8 is a valid part of the constitution. It’s exceptionally clear.

  5. marci said,

    March 5, 2009 at 9:50 pm

    I agree, Starr made good arguments… on how it is pretty easy for the majority to vote equal rights out of our constitution. So, those who are eager to save marriage from the gay and lesbian couples, how about the law no longer recognizes marriages of any kind, but instead civil unions? Marriages are still performed in the church, but civil unions may be entered into by gays as well as straight, legally recognized?

  6. beetlebabee said,

    March 5, 2009 at 10:16 pm

    Marci, it’s not about equal rights. Marriage is an equal institution already. It applies to all citizens equally.

  7. Metta said,

    March 6, 2009 at 12:15 am

    I did not hear all of the arguments today, so I might have missed something that would make me feel differently. But from what I did hear, I have to agree with Beetle Blogger’s description of what happened in the courtroom. I am very sorry to say that, because I am completely in favor of gay marriage. My wife and I got married last September when it was legal in California. I hope Beetle Blogger and I are both wrong about the effect of the arguments on the justices, and that they rule Prop. 8 invalid, but I am not holding my breath on that.

    I’m not trying to stir anything up by posting on your blog, BB — I was just looking on the internet for reactions to today’s hearing and ran across your post, and it seemed to reflect the proceedings pretty accurately. So I felt compelled to say Yeah, I think you got the facts right, even though I couldn’t disagree more with your position on Prop. 8 and same-sex marriage.

  8. Emily Rockwood said,

    March 6, 2009 at 12:23 am

    I’m so glad things went well today! Hooray for Ken Starr!

    I agree-this is not about equal rights. ANY man and can get married to ANY woman. There are NO restrictions in this case. If the couple to be “united” does not contain a man and a woman, then the union should be called something else.

  9. teeny said,

    March 6, 2009 at 3:54 am

    HUZZAH!! I’ve been doing a jig all afternoon. I missed the first part of the arguments….were HR5 and SR7 even mentioned? I want to go back and watch it again.

  10. beetlebabee said,

    March 6, 2009 at 4:00 am

    Metta, thanks for the comment. It’s ok to disagree with me. Many people have many views. Thanks for posting! There is still a wide arena of responses that the court can give that would color the issue one way or another. Even though I seriously doubt they’ll overturn prop 8, there are still a lot of pitfalls they could veer into. For me, I’m keeping the justices in my prayers. Theirs isn’t an easy task, I hope they’ll be enlightened on how to rule in the best way possible for all involved.

  11. Liberty Belle said,

    March 6, 2009 at 4:25 am

    I’ve been over the rainbow all day today over this hearing. After all the vilification of the voters, it was a gust of fresh air to hear these justices so willing to see that the power of democracy in our state is with the people, not the courts.

    I love this line from NOM:

    “The right to vote for Prop 8 is a core constitutional right, part of the plain language of the California constitution,” stated Maggie Gallagher, President for NOM. “I suspect that Prop 8 opponents are going to have to accept that the ‘we win, no matter what, whether you like it or not’ is not actually a principle in the California constitution, and gay marriage activists need to respect their neighbors’ rights too.”

  12. James R. said,

    March 6, 2009 at 4:30 am

    Jerry Brown is a joke. If he had any shame he’d never show himself again in public after that charade. I have to agree, it’s a good thing we had out there fighting for us because if it had just been up to Jerry Brown’s Clowns to defend us, I don’t know that the court would have been so level.

    My faith is renewed in the ninth circuit. It’s interesting to see them in action after all these months of wondering isn’t it? I get the impression that their minds are already made up. Maybe the ruling will come out quickly.

  13. March 6, 2009 at 5:04 am

    […] my friend Beetle Blogger for her personal account of the hearing today. She also posted the video of the hearing if you want […]

  14. holly said,

    March 6, 2009 at 3:19 pm

    James R., that wasn’t the 9th Circuit. It was the California Supreme Court. The 9th Circuit would be a completely different story, I think.

    Not to get ahead of myself, but if the CSC does find in favor of upholding Prop 8, would an appeal go to the 9th Circuit? Or could it go straight to the Supreme Court? Also, does anyone know the soonest this might end up back on the ballot? The thought of going through this again just exhausts me, but I fear that’s where we’re heading, and I think it would be an even tougher battle than this one was.

  15. chadabshier said,

    March 6, 2009 at 8:19 pm

    I would have to agree with your summary for the day. Starr undoubtedly stole the show, and was easily the most prepared lawyer to present his/her arguments. He seemed to have more respect for the Justices and they in return showed him a great amount of respect (apologizing for interrupting, and overall interrupting much less frequently).

    Gosh, our District Attorney is a joke! His arguments and the way he stuttered over the Justices questions was comical.

    I wasn’t planning on watching the whole ordeal (all 3+ hours of it), but, I watched the entire thing and am very glad that I did. I have a much more respectful attitude for my Supreme Court than I did 4 hours ago, and my spirits are high that arguments in favor of Prop 8 seemed to greatly overshine the arguments against it. Thanks for sharing.

  16. busywithconviction said,

    March 6, 2009 at 8:29 pm

    I just have to join in on joy. I realize a final decision still has to be made but yeah that things went so well yesterday!!!

  17. beetlebabee said,

    March 6, 2009 at 8:42 pm

    Chad, I agree, it was better than a football game, a boxing match or any other high contact sport….all the more so because so much of our future is at stake. I thought it was riveting. I also have quite a bit more respect for the justices now that I’ve seen them in action, but I have to really wonder, with what we saw yesterday, I mean, these justices obviously “get it”, how could they have overturned 22 in the first place? There must be more to them than what we saw yesterday.

  18. teeny said,

    March 6, 2009 at 9:10 pm

    I just watched the arguments for a second time. I experienced some different emotions this time around. While I’m still stoked about our side and its fantastic defense, I can’t help but feel subdued. If and when this is overturned, there will be profound emotional impact. The fact is, 18,000 took advantage of the bestowed right to marry, which in the overturning of prop 8, the state would then no longer recognize. I feel terrible for those couples that would then have to go through other means to have their committment to each other validated by the state. In that context, I would understand their feelings of being viewed as a second class citizen. I don’t agree with it, but I understand it. The overturning of prop 22 is at the core of this whole situation, and if the judges had exercised just a bit more caution, perhaps our efforts to preserve the definition of marriage would not have been viewed as an act of targeted intolerance.

  19. Chairm said,

    March 7, 2009 at 5:11 am

    Holly asked: “if the CSC does find in favor of upholding Prop 8, would an appeal go to the 9th Circuit?”

    This is about interpreting the state constitution. While I wouldn’t put it past the courtcentric SSM campaign to try to reframe the conflict as a federal issue, I don’t think they can gain traction because the initiative process is local and the states govern marriage. So, No.

    * * *

    Teeny, I also empathize with those who SSM’d in the interim.

    The Court is at fault for not staying the effective date of their decision until after the vote on the marriage amendment.

    While body language is hard to read, especially on video, I think I saw some of the Justices twitch when Starr discussed the putative spouse doctrine, which is very apt to these interim SSMs that are no longer recognized.

    Justice George in particular seemed irritated. I think he may have realized that the amendment cannot be fairly disparaged as a deliberate attempt to fool the voters. It was the refusal of the Court to wait that setup this interim period.

    Justices Corrigan and Baxter and Chan seemed to be making that point, although they did so by appearing to disagree with Starr. These three favored a stay — well, they dissented with the majority’s pro-SSM deicision in the first place, too.

    * * *

    Starr: The flinty reality is, at the time that Proposition 8 qualified on the ballot, the world knew that this remained an issue, same-sex marriage was not legal. The signature gathering process goes back to 2007, because of the swirl of uncertainty about what might happen.

    Corrigan: Here is the flinty reality. At the time this Court’s decision became final, our pronouncement about what the constitution dictated in terms of the right to marry, became a part of the law of this state. We agree with your positon — the law was changed — but by virtue of the electorate’s action. But aren’t those couples, who relied on the constitutional pronouncement of this Court about the constitution of this state, entitled, if nothing else as a matter of equity, to rely on the law as it existed at the time they took the action they did?

    Starr: And to, in fact, say, We were validly married. It’s true. They were validly married under the law of this state as articulated by this Court after it denied the stay. And so as of that day in June when the marriages began, it was valid. And continued to be valid.

    George: Aren’t you blinkering reality by saying they were married for the 6 months but after that they are not?

    Starr: They are no longer valid or recognized.

    * * *

    At that point Starr turned the tables and instead of fielding hypotheticals from the Justices, he prersented his own hypothetical to illustrate his point.

    Starr: Plural marriage permitted. [But then we decide that] we no longer want plural marriage.

    Starr: This Court has had occassion to deal with this kind of issue: a plural marriage lawfully entered into in another jurisdiction. But this Court wouldn’t recognized it. Why? Because it is unlawful under the law of the state. Is that fair? Well, then, this Court said, you don’t say that we’re not going to pay attention to the relationships. This goes to humanity. This has to be dealt with. The Law is flexible. It’s supple. And that, of course, gave rise to another example of a putative spouse doctrine.

    * * *

    George did relax a bit but he was not looking very happy. Maybe he was just tired and hoped that there was some ambiguity that could help him save face and convince the other Justices to keep the interim SSMs valid. Somehow.

    Starr: Context is critical here: one-hundred and seventy years of California history.

    Starr: [Also] we rely on the language of the amendment itself: “is valid or recognized”.

    Starr: But what about this very brief window of four-plus months? I’d ask the Court to think how would the draftsperson do her work?

    George: Why wasn’t there an express retroactivity clause? Perhaps as a matter of political strategy it was deemed wise not to make it all that clear to the electorate that the marriage ceremonies of thousands of individuals would be invalidated by the passage of Proposition 8. Because that would lessen the chances of Proposition 8 passing. Therefore it was left deliberately ambiguous. And, if that’s the case, shouldn’t the tie go to the runner?

    Starr: That non-benign view of the draftperson’s intent does overlook, entirely, the fact that when the language was drafted and later being presented to over one million persons — one million persons signed it — every one of those signatures came onto the signature line when the law of California was the law that previously obtained and now obtains with Section 1.7.

    Starr: So now what the Court would be saying is that the draftsperson should have peered into the future, looked ahead, and even though the Court of Appeal had overturned the Superior Court’s decision, That was the law at the time.

    Starr” What the Proposition was seeking to do — [the voter guide] uses the word restore — I would say to simply continue the law as it had always been until this Court’s opinon on May 15 and then it became effective in the month of June.

    Starr: All the signature gathering had been done. A million-plus Californians who had signed on the dotted line and did so when the law of the jurisdiction was “only marriage between a man and a woman is valid or recognized”.

    * * *

    There is not much wiggle room. The Justices are not supposed to try to give a little here and give a little there. This is not “Let’s Make A Deal”. They are bound to read the amendment’s language plainly. And there is no ambiguity.

    Justice George cannot realistically claim that his speculation about ill-intent on the part of the drafter of the amendment — he cannot realistically insist that is grounds for finding ambiguity in the text.

    I recall the No-on-8 side repeatedly complaining that these interim SSMs would be nullified, forcibly divorced, and so forth. They made that case — exagerating — but they knew the score.

    Also, I know that pro-gay lawyers advised people to stay in their domestic partnerships until the issues was settled — at least waiting for a No victory at the ballot box. The issue was up in the air, without doubt.

    So if someone rushed in, they can’t blame the electorate. They might blame the Court. And I think George looked like he knew the error was in not staying the decision.

  20. beetlebabee said,

    March 7, 2009 at 1:27 pm

    Chairm, you have sat with that awesome video much longer than I have if you typed all that out! Where did you find that? It was going by so fast I hardly had time to digest this putative spouse bit. I think Starr’s point is completely dead on. There is no wiggle room here. I still don’t understand how a court that seems so intelligent could have gotten so wrapped up in itself last year that it could make such a monumental blunder. As I watched this hearing, I seriously had some awe going on for the greatness of their legal minds. It was abundantly clear to me that they “get it.” Perhaps it is my lack of experience in this particular arena showing through but they seem far too intelligent to overstep their bounds like they did. I can hardly believe it was the same court. but there it is.

  21. Chairm said,

    March 7, 2009 at 4:37 pm

    BB, tricks of the trade — and help from other viewers — makes it possible to get a rough transcription if we have access to the recording.

    * * *

    When a Court abuses judicial review, they put blinkers on.

    I cannot believe that the pro-SSM Justices failed to recognize the direct conflict that their actions would produce in the event that the Yes side won the election. They threw the dice.

    Something like this occured in Holland and in Canada. But in those places the Government caved-in (like the Legislatures in CA) although the judicary had not ordered the merger of SSM with marriage. The elected reps admitted that they hoped to avoid a conflict at the polls and in the streets. Spineless, really, because in both countries they could have held a referendum the results of which would have advised the elected reps. And such a referendum in either Canada or Holland would have said, No, as we experienced in California.

    I do think that these CA Justices thought that the three branches could unite against the People and impose the change.

    In the oral arguments, as I said, I detected quite a lot of unease on the part of the pro-SSM Justices. The 3 dissenting Justices — who sat on the viewers right side of the tv screen — brought this to the surface.

    If you view that part again, you’ll see and hear how Starr gentlely and respectfully gave no ground.

    George tried to find ambiguity — post hoc — but his Court had injected mischief when it refused to stay its decision. If the No side had won the election, he’d not be in this pickle.

    The same calculation was displayed by the Goodridge court in Massachusetts. They gambled that the amendment process there would be too cumbersome. But this is not how government is supposed to operate. The Judiciary does not lead; it interprets the lead of the People.

    I think it is fascinating that in that 3 hour video we see and hear the corruptive influence of SSM argumentation on the three branches of government. It is right there in the stuttering nonsense of the Attorney General’s representative. It is rung in the shrillness of the other counsellors — and in the queerness of a “trans-sexual” pleading for a highy subjective test of amendment vs revision.

    The 3hrs summed up the conflict. And Starr was very good at exemplifying what most marriage defenders do when confronted with these absurdities.

  22. lahona said,

    March 11, 2009 at 8:01 pm

    Where can I go to Listen/Watch this hearing?

  23. beetlebabee said,

    March 11, 2009 at 8:03 pm

    Good to see you on here again Lahona! There’s a little intro on this video, but you can skip past it if you want. I thought it was very informative though.

  24. Anonymous said,

    March 13, 2009 at 10:50 pm

    “The court is not rescinding those marriages, or any of their rights, only changing the name that it’s known by.”

    Sure sounds like they’re rescinding them. No – you’re not “married” anymore. Definition of divorce: “a judicial declaration dissolving a marriage in whole or in part”

    Cut the “My faith has been restored” (expletive) and start living the things your faith tells you to live. Prop 8 is just another attempt at separate-but-equal ideas that perpetuate homophobia in our nation. Anybody remember Matthew Shepard?

  25. beetlebabee said,

    March 14, 2009 at 12:49 am

    What does Matthew Shepard have to do with it? Or did you mean Matthew Shepherd? Look them up. Two guys, two motives….interesting parallels.

  26. rubyeliot said,

    March 16, 2009 at 2:36 pm

    Matthew Shepard actually wasn’t killed because of his homosexuality. It was for drug money. Equally sad.

    Read 20/20 report here

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