Debra J. Saunders

California Supreme Court Chief Justice Ron George looked none too comfortable Thursday morning as he heard oral arguments for and against California's ban on same-sex marriage. George had written the 4-3 decision last May that pronounced California's law against same-sex marriages to be unconstitutional. Since then, however, 52 percent of Californians approved Proposition 8, which amended the state constitution to limit marriage to a man and a woman.

And it's George's job to uphold the California Constitution.

Or as George reminded a lawyer for the anti-Proposition 8 side who had been leaning on the 4-3 ruling, "Today we have a different state constitution, don't we?"

Justice Joyce Kennard was in a similar pickle. She voted with George to legalize same-sex marriage -- despite the passage of Proposition 22, which 61 percent of voters approved in 2000, a statute against same-sex marriage. But as Kennard told attorneys pushing to overturn Proposition 8, the court had to choose between "the inalienable right to marry and the right of the people to change the constitution as they see fit. And what I'm picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people."

That's about it. San Francisco City Attorney Dennis Herrera and other Proposition 8 opponents came up with the highly legalistic argument. To wit: Proposition 8 is invalid because, after the 2008 George decision, it represented a "revision" of the state constitution -- and thus needed a two-thirds vote of the Legislature or an act of a constitutional convention before it could be put on the ballot.

Attorney General Jerry Brown took a different tack. Staff attorney Christopher Krueger argued that same-sex marriage is an "inalienable" right that should not be subject to majority vote. That's choice -- considering that when Brown was governor in 1977, he signed the state law that stipulated that marriage was not simply between two persons, but a male and female.

If Brown runs for governor for 2010, he'll have to explain why he is entitled to use tax funds to overturn the will of California voters. It took Proposition 8 defender Ken Starr -- of Monica Lewinsky blue dress fame -- to observe that "the right of the people is inalienable to control their constitution."


Debra J. Saunders


 
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