Ken Starr Gives Prop 8 Argument Preview

Posted on Feb 10, 2009 | by Michael Foust

NASHVILLE, Tenn. (BP)–Perhaps giving a preview of what he will argue before the California Supreme Court next month, Kenneth Starr said Feb. 10 that the constitutionality of Proposition 8 turns less on the issue of "gay marriage" and more on the issue of whether the state’s citizens have the power to overturn even controversial court rulings.

Starr will represent — the official proponents of Prop 8 — during oral arguments before the court March 5. A constitutional amendment, Prop 8 passed during the November election, overturning a state high court ruling that had legalized "gay marriage."

Opponents of Prop 8 filed suit days after the election, arguing that Prop 8 was a constitutional revision — in essence, a drastic constitutional change — and should be struck from the constitution. Unlike amendments, revisions must first go through the legislature before going to voters. Prop 8 was placed on the ballot via the petition process.

Starr, dean of the Pepperdine University School of Law, made his comments during a forum at the National Religious Broadcasters convention in Nashville, Tenn.

"What is being argued before the California Supreme Court is: Do the people have power under the California constitution to amend the constitution so as to overturn a specific decision of the California Supreme Court? It’s a very important but nonetheless different issue than the underlying constitutional issue of the right to marry someone of the same sex," said Starr, who has not been granting media interviews about the case.

Marriage already is regulated in many ways, he noted.

"Plural marriage, which is lawful in 28 countries that are members of the United Nations, would not be recognized here," he said. "There are many, many regulations — age regulations and so forth."

He took a gentle swipe at the 4-3 majority opinion, which was authored by California Chief Justice Ronald M. George.

"The entire opinion … is very cultural," Starr said. "It is ‘our history and our tradition,’ and it’s only in footnote 54 that it says, ‘Oh, by the way, that polygamy stuff and plural marriages in 28 countries? That can’t happen here because that’s not our culture, that’s not our tradition.’ Well, guess what marriage has culturally and historically been [in the U.S.]?"

Starr also said he has "great respect" for the view that the state should get out of the licensing of marriages altogether.

"I’ve seen very thoughtful Christians say, ‘Get the state out of this. … If you want to be married by your priest, rabbi, minister, pastor, great — call it whatever you want. [But when you’re] welcome to city hall, it’s a civil union.’ That may be the eventual way that we need to go, because you see the culture war that is so unfortunate."

Starr was participating in a forum discussion with Nadine Strossen, former head of the American Civil Liberties Union. Starr is best known as the special prosecutor who headed the investigation that led to the impeachment of former President Bill Clinton.

Michael Foust is an assistant editor of Baptist Press.

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