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Debating 8: Starr twinkles some light on what arguments we might expect

by Jeremy Hooper

200902101830One Kenneth Winston Starr was in Nashville today, explaining how, exactly, he plans to defend bias and majority tyranny when he defends Prop 8 in the Supreme Court. This from Baptist Press:

"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.

Well he's mostly right here: It is a very different question than the initial marriage ruling. But the question of a bare majority's right to rollback a ruling is not the ONLY question. Another question is if Prop 8, regardless of the people's right or not to put it into place, itself violates crucial constitutional protections. Attorney General Jerry Brown is arguing that certain rights are inalienable, with the right to marry being one of them. So the whole case is not purely purely built around the matter of California procedure -- there are crucial matters of fairness here as well. They should not go unnoted.

Moving on -- Baptist Press goes on to quote Starr like so:

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."

Okay, first off: It's actually footnote 52, not footnote 54. And what it says is less the glib aside that Starr makes it sound like, and more a studied opinion culled from legal precedent:

In re Marriage Cases

But hey, why present people with fair-minded takes on the actual data when you can instead foster the lie that justices are all robed heathens hellbent on ruining evangelicals' lives?

Now that that's out of the way -- Starr's last quoted quip actually sounds quite concessionary. It sounds like he's mostly admitting the distinction between civil and religious marriage. But what's so annoying is that he acts as if the separation is where we may eventually need to go, when the actuality is that THIS IS BASICALLY WHERE WE ALREADY ARE! Religious ceremony, while often utilized, is already a choice in the civil marriage process. Religious figures, while granted powers to perform such unions, are already a non-essential to civil marriage equality. And the decision to marry or not marry couples (for whatever reason) is already left to the individual churches, sects, and leaders. The only change that is needed is for religious social conservatives to realize this and step away from this needless CIVIL fight!!!!!!!!!!!!

It should be noted that Starr made all of these comments while taking part in the National Religious Broadcasters convention. So to be fair, there might have been a contagious strain of gay rights misrepresentation going around to shape some of his views.

Ken Starr gives Prop 8 argument preview [BP News]
(H/t: Dick Mills)

**UPDATE, 2/11: Americablog is on it, with nice link love back to us: Ken Starr speaks to religious group about the legal gay-bashing strategy of Prop. 8 supporters [Americablog]

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Your thoughts

Maybe Mr. Starr isn't as great a lawyer as he thinks he is? Specifically, Starr criticizes the majority opinion for being too "cultural," and for citing the "history and traditions" of the state. Hmmmm that's interesting, because every fresh faced law student knows that "history and tradition" are two of the primary factors the courts consider when deciding whether a particular right is protected by the constitution. As Dean of a law school (although, I admit, Pepperdine is not of the highest quality), Starr should at least understand that very basic principle of constitutional jurisprudence.

Posted by: Jackson H | Feb 10, 2009 7:34:18 PM

Not to put too fine a point on it, but I'm not sure that Brown's assertion that certain rights are inalienable will have much play in this case. It is not an argument claimed by the plaintiffs, who are suing purely on the grounds that Prop 8 is a revision, not an amendment, and didn't follow the correct procedure for passage.

I love the way Starr spins the "question" to make it more sympathetic. This case is NOT about whether the people of California have the right to amend the constitution to overturn a decision. They do have that right. The question is whether the correct procedure was followed in order to enact a constitutional revision of this magnitude. It's pretty clear - to me at least - that it wasn't and Prop 8 should be struck down.

Posted by: Sam R. | Feb 11, 2009 12:22:28 PM

Oh Ken Starr, can't you keep yourself out of people's private business? And, ungh invoking the culture war. I found this clip that I think explains perfectly what the problem with Prop 8 is.


Posted by: Paolo | Feb 11, 2009 2:15:46 PM

i cannot help but smirk at the notion that the "state should stay out of licensing marriages all together." as if the word "marriage" is reserved for the religious-only and any non-religious unions are merely "civil unions." that concept will backfire - there are plenty of churches in california that are fully-open to gays and lesbians and many willing to performing gay marriages and/or civil unions. so does that just mean that gays and lesbians just have to flock to the right church to get "married" or are they planning on restricting religious freedoms as well..?

Posted by: remix | Feb 11, 2009 3:00:17 PM

Peeping Kenny is just as hypocritical and dishonest as every other stinking Evangelical in this country.

First, if the will of the people is so important then why did "Protect" Marriage go to court to overturn California's campaign finance disclosure law, a law that was passed as a voter initiative? The good news is that they've severely underminded their case before the California Supreme Court. The bad news is, well, the bad news is that they exist at all.

Second, marriage is a civil NOT a religious construct. The religious right, as usual, has everything backwards. If marriage is a religious construct, then why don't divorcing couples get divorced by their clergy? They get divorced by going to the civil courts to file a civil case to dissolve their marriage. Marriage is a CIVIL instution and NOT a religious one.

Posted by: TomTallis | Feb 11, 2009 3:36:02 PM

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