Ken Starr, who gained fame-and infamy-with his investigation of the illicit liaison between President Bill Clinton and White House intern Monica Lewinsky, argued before the California Supreme Court Thursday on a different kind of liaison: the marriage of same-sex couples. About two hours into oral arguments on Proposition 8, the former Whitewater special prosecutor took center stage and urged the court to refrain from interfering with the people's vote.
After the hearing, observers on both sides of the issue agreed that the court just might listen.
The same court last May 15 ruled 4-3 that same-sex couples should be entitled to marry in California. Chief Justice Ronald M. George wrote that ruling, and was joined by Justices Kathryn Mickle Werdegar, Joyce L. Kennard, and Carlos R. Moreno. But in November, California voters passed Proposition 8, a ballot initiative that amended the state constitution to only recognize as valid traditional marriages between a man and a woman. In response, gay rights activists and allies filed three separate challenges to the measure.
According to Joe Infranco, a senior attorney with the conservative Alliance Defense Fund who attended Thursday's hearing, most of the justices seemed receptive to Starr's argument that Proposition 8 was a proper constitutional amendment and not an improper "revision" as opponents claimed.
"We are optimistic on the main point, that Proposition 8 will be upheld," said Infranco. "It's early, but my best guess is that we'll have a split decision."
The hearing pitted the people's right to amend the constitution against the state's interest in protecting "fundamental rights."
"One of the inalienable rights articulated in the constitution is control over the constitution," Starr said.
Justice Carol A. Corrigan, who voted against affirming same-sex marriage last May, challenged Starr, asking if the people's right to amend the constitution included even amendments deemed "unwise."
Starr answered it did, adding that it is up to the people, not the state, to decide whether an amendment is "unwise."
On a second issue in the case-the disposition of the 18,000 "interim" marriages that occurred during the four months that same-sex nuptials were legal in California-it appears that Proposition 8 opponents may prevail. By law, the language in a California ballot measure must clearly state that it retroactively applies. In this case, "retroactive" application would mean that the interim marriages were never "valid or recognized."
The justices seemed "skeptical about whether the language was clear," Infranco said.
Meanwhile, Proposition 8 proponents mounted what Infranco called a "technical" argument that the interim marriages were valid, but now can no longer be recognized under the newly revised constitution.
But even the conservative Corrigan asked whether couples married following the court's May ruling are "entitled, if nothing else as a matter of equity, to rely on law that existed at the time they married?"
Based on the justices' reactions during Thursday's three-hour hearing, Infranco predicts that conservatives will win on preserving Proposition 8, but be forced to concede the validity of the interim marriages.
"This court has a reputation for to attempting to come up with Solomonic solutions," he said. "This may be their effort to split the baby."