Posted March 5, 2009

The oral arguments will be available to watch live online at http://www.calchannel.com beginning at 9:00 a.m. Pacific time.

The courtroom will be jammed today, demonstrations are being held statewide, and a crowd will watch from a giant outdoor screen at the San Francisco Civic Center as oral arguments are given before the California Supreme Court to determine the fate of Proposition 8, defining marriage as an institution of one man and one woman.

It is another in a series of astonishing events since the November passage of Prop 8 by a healthy 600,000 votes and a chance to see if the voice and will of the people will be squelched.

In this battle to uphold the results of a legitimate election, many of the elected officers of the state have, in fact, abandoned the people.

The ProtectMarriage.com is the only organization arguing to uphold Prop 8 in this court battle. Attorney General Jerry Brown, whose oath of office requires him to defend the People's right to amend the constitution, instead decided to oppose Prop 8, a remarkable dereliction of duty.

When Brown filed a brief for the state, instead of doing what his job compels--offering up the best legal defense of the state and its laws in court, he offered a “crackpot” theory, whose argument he summarized in his press release: “The amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.”

He is basically contending that the constitution declares same-sex marriage to be a fundamental expression of liberty and equality.

The editors of National Review noted, “Brown invents this argument out of whole cloth: Further, how is it that a ‘right' to same-sex marriage that the state supreme court invented just months ago, and that even Brown's brief concedes was not something ‘the Framers [of the state constitution] contemplated' should suddenly be deemed a ‘fundamental' constitutional right?

“In Brown's theory, there is no popular check on the judicial-activist invention of rights.”

Legislature and Betrayal of the Public Trust

Much of the rhetoric surrounding the attacks on Prop 8 has been deliberately misleading, and none more so than in the California legislature which betrayed the public trust by passing a non-binding resolution contending that Proposition 8 was an improper revision of the state constitution and contending that sweeping revisions can only be adopted if they originate in the legislature and gain two-thirds approval of that body.

The language is extreme. “We're talking about a radical revision to our constitution,” said Sen. Mark Leno, D-San Francisco, an openly gay member of the Legislature.

"Do we have a constitutional democracy in California ," Leno asked, "or do we have mob rule, where a majority of Californians can change the constitution at any time?"

Notice in his inflammatory statement how the legitimate vote of the citizens of California is transformed into “mob rule”, and defining marriage as it has always been accepted in California before a close, 4-3 Supreme Court ruling is suddenly a “radical revision.”

Lawyers

These are the two major lines of argument those who want to topple Prop 8 will be presenting today in court.

Arguing for the Protect Marriage coalition and Prop 8 is legal heavyweight, Ken Starr, dean of Pepperdine University School of Law, who is best known to the public for leading the investigation into President Bill Clinton's affair with a White House intern. Among the many conservative causes that he champions, he has previously written briefs for The Church of Jesus Christ of Latter-day Saints in a gay marriage case in California.

"He brings an extraordinary degree of credibility on constitutional law, which is ultimately what this case hinges on – whether or not people have the right to amend our constitution," Frank Schubert, who works with the Protect Marriage coalition, said.

Starr sees this as a fight of great importance, "We will not mince words," Starr wrote in his court papers. "The attorney general is inviting this court to declare a constitutional revolution."

Leading the opposition team is Shannon Minter, legal director of the National Center for Lesbian Rights, who spent his first 35 years as a female and the lead counsel in the state Supreme Court case decided last May.

Two more different legal top guns could hardly be found.

The stakes are high, but if logic, if reason, if precedent carry the day, Prop 8 should survive, however, legal observer Ed Whelan put it this way, “ I make no predictions as to how the court will actually rule, as a court that can render the May marriage decision is capable of any sort of judicial malfeasance.”

The LA Times reports that the arguments may mean less than we think as “ By now, the court already has drafted a decision on the case, with an author and at least three other justices willing to sign it. Oral arguments sometimes result in changes to the draft, but rarely do they change the majority position. The ruling is due in 90 days.”

Harassing Supporters

This is not the first time that the ProtectMarriage.com committee has been in court. They continue to litigate to protect the privacy of donors to the campaign. They note, “Too many of our supporters have been subjected to harassing calls, emails and other retaliation for supporting Proposition 8. There is clearly an organized effort underway to contact our donors and attempt to silence them from supporting our efforts.

“Some of our opponents, for example, have put many of our donors' information on the Internet using Google mapping technology, displaying the location of contributors of as little as $100. (see www.eightmaps.com ) For this reason, we are mounting litigation in the federal courts to protect our donors from further disclosure. We expect this litigation to take some time, and likely will not be successful until it is in the federal courts of appeal.”

They were right. Their preliminary injunction against releasing the names of the donors failed in court and the names were released.