Arguments in place as Prop. 8 hearing nears

Arguments in place as Prop. 8 hearing nears


(01-25) 20:59 PST -- In thousands of pages, the combatants in the Proposition 8 fight have made their case to the state Supreme Court.

On one side: the people's right to amend their Constitution and define marriage. On the other side: the courts' duty to protect minorities, such as gays and lesbians, from the tyranny of the majority.

The briefs are all in, from sponsors and opponents of the ballot measure banning same-sex marriage and their far-flung allies - organizations as mainstream as the AFL-CIO and the California Catholic Conference and as unconventional as the Church of the Messiah and a No on 8 group called Love, Honor, Cherish.

The next step is a court hearing, perhaps by the first week of March in San Francisco. A ruling, due 90 days later, should be the last word on the validity of the Nov. 4 initiative and the 18,000 same-sex weddings performed before it passed, at least until the losing side puts the issue on the ballot again.

Prop. 8 declared that only marriage between a man and a woman is valid or recognized in California. The measure amended the state Constitution after the state's high court ruled May 15 that the previous ban on same-sex marriage - endorsed by the voters in 2000 - discriminated on the basis of sexual orientation and violated the constitutional right to marry the partner of one's choice.
Opponents' case

Opponents argue that Prop. 8, though now part of the Constitution, is invalid for three reasons:

-- It had such a drastic impact on individual rights that it amounted to a revision of the Constitution, not merely an amendment. A revision can be placed on the ballot only by a two-thirds legislative vote or by delegates to a constitutional convention.

-- It violated the constitutional separation of powers by stripping the courts of their authority to protect a minority group from discrimination.

-- It eliminated "inalienable rights," those protected by the Declaration of Rights in the opening clause of the state Constitution, without a compelling reason. That argument comes from Attorney General Jerry Brown, who reversed course after defending the previous marriage law before the court.

Brown's new stance left the defense of Prop. 8 to its sponsoring organization, Protect Marriage, which portrays its case as a defense of democracy itself.
Starr's argument

"The Constitution has now been amended, by the sovereign people who are its creators. That is the beginning and end of this case," the group's lawyers - Kenneth Starr, the prosecutor in President Bill Clinton's impeachment, and Andrew Pugno - said in their final round of written arguments last week.

Prop. 8, they said, makes no far-reaching changes in the structure of state government - a standard the court has used to define a constitutional revision - but merely restores the long-standing definition of marriage while leaving same-sex couples' rights intact under domestic partner laws.

Opponents' arguments, the lawyers said, amount to "a call for a constitutional revolution."

Brown's brief countered that Prop. 8 makes an "unprecedented change to the California Constitution by taking away the fundamental rights of a vulnerable minority." Same-sex couples who sued to overturn the ballot measure cast its proponents as would-be constitutional revolutionaries.

Defenders of the initiative are promoting a "radical vision of a constitutional structure in which the rights of minorities are utterly subservient to even temporary majority sentiment," said lawyers for the couples.

Only the judiciary, "the last bulwark against majority oppression," can protect the principle of equality at the core of the Constitution, said the city of San Francisco, which led city and county governments in a separate suit challenging Prop. 8.
Plenty of other voices

Last week's arguments came from the official parties in the case, the only ones with the right to speak at the hearing and file appeals. The court has also heard from 63 organizations and individuals with an array of written arguments on legal, social and religious issues related to the case, about two-thirds of them opposing Prop. 8.

The friend-of-the-court briefs come from legal scholars, civil rights advocates, competing religious coalitions and individual churches, labor and business organizations, and a few authors with an ax to grind, such as a self-described defender of "the civil rights of this nation's male minority" who warned against lesbians' "exterminationist" agenda.

Such outpourings have become common in major cases - court spokeswoman Lynn Holton said 68 nonparties filed briefs in last year's marriage case - and the arguments occasionally show up in court opinions. One example was the U.S. Supreme Court's 2003 ruling allowing the limited use of race in state college admissions, which cited filings by military and business leaders favoring affirmative action.
Value debatable

The briefs sometimes give courts additional perspectives, particularly when they come from a trusted source, or at least show that the public considers the case important, former California Chief Justice Malcolm Lucas said in an interview. He said their value was expressed by the late Justice Stanley Mosk, who was fond of saying, "We should take wisdom from wherever it comes."

But San Francisco attorney Dennis Maio, a staff attorney on the state's high court from 1984 to 2004, said friend-of-the-court briefs might help persuade the court to grant review of a case but almost never contribute to a ruling. "The issues are framed by the parties," he said.

The briefs nonetheless represent the views of some major constituencies in California, including the state AFL-CIO, whose unions have 2 million members in the state.

Urging the court to overturn Prop. 8, attorney William Sokol wrote, "Today, it is gays and lesbians who are singled out. Tomorrow, it could be trade unionists."
Dueling religious cases

On the other side, James Sweeney, a lawyer for the California Catholic Conference, also representing congregations of Seventh-Day Adventists and Orthodox Jews, said religious institutions might be sued for acting on their beliefs against same-sex marriage - for example, by excluding gay or lesbian couples from married student housing at a church college - if Prop. 8 were overturned.

A group of more liberal denominations, led by the 4,000-member California Council of Churches, argued that Prop. 8 could open the door to religious persecution. The Rev. Mark Shirilau of Riverside, who founded the gay-friendly Ecumenical Catholic Church in 1987 and has congregations in several states, said the measure's declaration that only male-female marriage is recognized in California is false because his church performs and recognizes same-sex weddings.

Scores of current and former state legislators signed a brief against Prop. 8. Three Republican congressmen - Wally Herger of Marysville (Yuba County), Dan Lungren of Gold River (Sacramento County) and George Radanovich of Mariposa - signed a brief supporting the measure and also arguing that San Francisco and other local governments have no right to sue because they "clearly have no sexual orientation" and thus have no rights at stake.

One unique brief came from T.M. Reverend Messiah, pastor of the Church of the Messiah in Marina del Rey (Los Angeles County). He cited 42 biblical passages that showed, he said, that male-female unions were ordained by God, homosexuality is unnatural, and Prop. 8 is valid.

"Why can't everybody accept the fact that there are different things for different persons?" he asked. "Marriage is for heterosexuals and not homosexuals."

Read the briefs

Briefs filed with the state Supreme Court in the Proposition 8 case may be read at:

links.sfgate.com/ZFYN

E-mail Bob Egelko at begelko@sfchronicle.com.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/26/MNB515G17D.DTL