Prop 8 Argument – First Impressions

Posted on March 9th, 2009 by Katherine Franke

Last Thursday, the California Supreme Court heard arguments in Strauss v. Horton, the case challenging the constitutionality of Proposition 8. For those of you who missed it, you can watch all three hours of it here (fast forward 15 minutes to skip the Cal. Sup. Ct. promo and get to the real argument). This is the first of what I imagine to be three posts with my thoughts about the argument and its implications for the future of the gay rights movement.

The case took three hours to argue because six different lawyers were given the opportunity to address the court. Shannon Minter and Michael Maroko each argued on behalf of the individual plaintiffs, lesbian couples who had married during the period between when the State of California permitted same-sex couples to marry in June (as a consequence of the California Supreme court’s decision in the Marriage Cases) and the passage of Prop 8 on November 4th; Raymond Marshall argued on behalf of a group of civil rights groups who had entered amicus, or friend of the court, briefs in support of finding Prop 8 unconstitutional; Therese Stewart represented the City and County of San Francisco, the plaintiff in a separate suit challenging the constitutionality of Prop 8; Christopher Krueger argued on behalf of the California Attorney General Jerry Brown (in support of the plaintiffs); and Pepperdine Law School Dean (and Clinton/Lewinsky special prosecutor) Kenneth Starr argued in defense of the constitutionality of Prop 8. Pictures and quick bios of the attorneys who argued the Prop 8 case can be found here.

The Court wanted the lawyers to address three different issues: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

I have some general observations about the arguments made last Thursday, but cutting to the chase, it’s hard to avoid the impression from the tone and content of the Justices questions that it will hold, by a rather substantial majority most likely, that Prop 8 was constitutional, BUT that the ± 18,000 couples who were married between June and November did not have their marriages retroactively invalidated by Prop 8.

In terms of appellate advocacy skills I would grade the lawyers: Minter: B+, Maroko: A, Stewart: A; Krueger: B-; Starr: A. Maroko and Starr are very comfortable in front of this court – having made numerous appellate court appearances, and in Starr’s case as U.S. Solicitor General, appearing often in front of the U.S. Supreme Court. Stewart was a bit more stiff, but very effective nonetheless – she, unlike Maroko and Starr, underwrote the strength of her arguments with, well, an undertone of anger that I, for one, appreciated. Minter, Stewart, Maroko and Krueger were all back before the court for the second time on the same sex marriage issue, having all done oral arguments in 2008 in the Marriages Cases.

Minter, who led off the arguments, appeared rather mechanical but nevertheless made the points he needed to make to defend the lead plaintiffs’ position (some of which I have rather strong disagreements with) that Prop 8 amounted to a diminution of the rights of an unfavored minority which cannot be done, if at all, as an amendment to the California Constitution through proposition. Marriage, he argued, is a fundamental right and depriving this right to same-sex couples marks them as second class citizens, denies them the dignity and respect that should be afforded to all, and inflicts a particular harm on the children of same sex couples. Minter was quite strong in rebuttal, hammering home the dignity and stigma point as an exclamation point to the court.

Marshall and Maroko took a different tact from that of Minter in making the case for the unconstitutionality of Prop 8. Marshall argued well that there were implications for all disfavored minorities if the equal protection provisions of the California Constitution could be easily watered down or diminished through the proposition amendment process. Maroko stressed the notion of equal protection in a different way: if the state of California is going to be in the marriage business it must do so fairly. “If gays don’t have the right to marry, straights can’t either.”

Stewart directed her argument more to the technical legal question before the court: in what way is Prop 8 a revision of, not an amendment to, the California Constitution. She stressed over and again that it amounted to a fundamental alteration of fundamental principles contained in the California constitution – that of equality. If, as the Court had held in the Marriage Cases, sexual orientation is a suspect class, then a majority of the people of California cannot diminish or pick away at the rights that same sex couples enjoy. “A notion of equality that is subject to amendment is no notion of equality at all,” she claimed.

Christopher Krueger, arguing for the State Attorney General Jerry Brown seemed, well, rather like deer in the headlights. Before he had taken his first breath Justice Kennard was all over him (as she was with all the others – the first Justice to jump in with questions before any of them had really gotten their arguments underway), wanting clarification as to what side the Attorney General was coming in on. Typically it is the job of the Attorney General’s office to defend the State and its laws. Since Prop 8 was a state law, the AG should make the argument in favor of its constitutionality. But in December, Brown surprised everyone by coming out in opposition to the constitutionality of Prop 8 on the ground that it deprives same sex couples of an inalienable right by a mere majority of voters. Brown’s brief and statements to the public stressed the fundamental nature of the right to marry, rather than the process issue of whether the substance of Prop 8 amounted to a revision of or amendment to the California Constitution. Krueger stumbled and stalled, but the gravamen of his argument was that Prop 8 should be held invald on morality grounds.

Finally, Kenneth Starr brought up the rear, making the case in favor of the constitutionality of Prop 8 – and for this the court had allotted him a full hour of time (the others were given closer to 30 minutes each).

Starr was smooth, comfortable, at times eloquent and chatty, doing a tremendous job arguing the point that upholding Prop 8’s constitutionality is completely in keeping with all of the Court’s prior cases, and required by the principle of popular sovereignty. When asked whether marriage was a fundamental right, he acknowledged that it was “foundational” but this fact did not mean that the people through their elected officials or directly through the ballot couldn’t amend or alter the meaning of marriage. He cited the Walton case – which established no fault divorce in California – and how upset the wife in that case had been in arguing against the establishment of no fault divorce; she did not want her husband to be able to walk away from the marriage for no reason. Much of the questions to Starr were devoted to the third question the court took in the case: If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8? He insisted that for those who were married between the time same sex marriage was legalized and November 4th when Prop 8 was passed, their marriages became not invalid, but unrecognized by the State of California. To blunt the seeming inequity of this position to those couples who were married and who relied on the validity of the marriage law at the time they were married, Starr argued that other states could recognize the California same-sex marriages if they chose, and that they could fall back on the equitable principle of putative marriage in California – which is somewhat like common-law marriage. Following a question from the Chief Justice as to whether this was similar to a change in the state marriage law that raised the age of consent to 21, or that prohibited first cousins from marrying, thus “unmarrying” a number of people who had thought they were legally married – Starr agreed that they too could fall back on the ameliorative doctrine of putative marriage.

Of most interest to me was a set of questions posed by the Court to all those who argued that was nomenclatorial in nature. The Chief Justice and Justice Kennard in particular wanted to know why Prop 8 didn’t merely deny same sex couples the term “marriage” for their relationships, since it did not deny them any of the material and legal benefits of marriage since that had been already accomplished through the creation of Civil Unions. I’ll reflect on that issue in my next post.

The court will issue its ruling within 90 days.

– Katherine Franke


  1. I am surprised that you graded Maroko’s argument as an “A.” I agree with all of your other observations, but to me it seemed that Maroko was not deferential enough with the Court, a little absent-minded, and often had to be roped-in by the Court when he got lost on some tangent. I was surprised that Gloria Allred didn’t flinch more often while he was talking. What makes you give him an “A”?

  2. Please do it right now. I love it to read something about this theme

  3. Debatepedia has a pro/con article on gay marriage and proposition 8, which may be worth looking at as a backround resource for this article.!

  4. I dont have tons of time right now to write a lot of my blathering opinions,(my lil girl needs attention, lol), but when I logon again, I will explain in depth why I disagree with this article.

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