The issue of same-sex marriage has once again been left to the California Supreme Court as Pepperdine School of Law Dean Ken Starr defended Proposition 8 in oral arguments March 5.
Most legal experts expect the court to maintain Proposition 8’s ban on gay marriage while still upholding the existing 18000 same-sex marriages that were issued before Proposition 8 passed in November. The court’s ruling is due within 90 days of the hearing.
Starr who is lead counsel for ProtectMarriage.com argued in court that the people have the “raw power” to amend the California Constitution as long as it does not change the basic structure of government. Starr also asked the court to interpret Proposition 8 as retroactive which would ultimately invalidate any existing same-sex marriages performed in California.
Opponents to Proposition 8 including California Attorney General Jerry Brown argue that while voters have the power to amend the Constitution Proposition 8 is invalid because it violates the fundamental right to marriage afforded to all individuals.
Several Pepperdine alumni from the School of Law continue to voice concerns over Starr’s involvement in the court battle after Law Professor Richard Peterson appeared in controversial television ads in October urging voters to “vote yes” on Proposition 8.
More than 50 Pepperdine alumni signed a letter they sent to Starr and University officials on March 5 describing his involvement as a “disgrace” and an unfair representation of the Pepperdine community.
Until the school issues a public statement outlining its support for diversity including sexual diversity the signers pledged to give any money they would have donated to the university to support organizations advocating marriage equality.
Jeremy Black a 2004 School of Law alumnus and organizer of the group said that as dean of the law school Starr’s actions cannot be separated from the university.
“It’s hard for me to disassociate the dean of Pepperdine law school its figurehead … the one that people look to lead the organization … from him the individual Black said. While we would respect his right to say anything he wants there are implications to free speech.”
Black said the group has not received any response from the university and will continue to withdraw donations and monetary support until a statement is issued and the university publicly separates itself from Starr’s actions.
“We’ve tried to hit them where it hurts and that’s the pocketbook Black said.
Jim Gash, associate dean of student life at the School of Law, clarified in an e-mail that the law school highly values diversity” and hopes to foster constructive dialogue between faculty and students.
“The law school deans have received and read the heartfelt letter from this group of alumni Gash wrote. Among the deans we have taught and/or come to know personally virtually every signatory on the letter. We love value and respect each of them and eagerly look forward to continuing our conversation with them.”
Gash did not specify whether the university plans on releasing a formal statement responding to the alumni letter.
However other members of the Pepperdine community voice support for Starr’s involvement which they view as evidence of his reputation as one of the top appellate lawyers in the nation.
Social Science Professor Todd Bouldin who is a licensed attorney in Tennessee said that while he supports Ken Starr’s right to argue what he believes in court he disagrees with the proposition system entirely and its ability to restrict the rights of minorities with a simple majority vote.
“I am in theory opposed to all propositions and ballot initiatives concerning the rights of citizens because they can easily run roughshod over the rights of minority groups with nothing more than a simple majority vote wrote Bouldin in an e-mail. Our American constitutional system was designed to protect minority groups from that kind of rule of the majority when it comes to fundamental rights.”
During spring break Law professors Doug Kmiec and Shelley Saxer also voiced concerns with Starr’s arguments in support of Proposition 8.
In a letter published in the San Francisco Chronicle on March 2 Kmiec and Saxer argued that the court should rescind the marriage title altogether and instead issue civil unions to all couples regardless of sex. Kmiec and Saxer wrote couples could later have a religious ceremony recognizing their union as a marriage if they wish. “Non-marriage terminology they argued, would provide for religious freedom as well as equality under the law.
[We] direct the state to employ non-marriage terminology for all couples – be it civil union or some equivalent. While new terminology for all may at first seem awkward – mostly in greeting card shops – the third step dovetails with the court’s important responsibility to reaffirm the unfettered freedom of all faiths to extend the nomenclature of marriage as their traditions allow Kmiec and Saxer wrote.
However, others acknowledge that Starr’s involvement in the case boosts the university’s prestige.
It reflects well on the university that we have a dean who is lead counsel on one of the most watched and important cases in California and our nation’s civil rights history and that should be applauded regardless of your views Bouldin wrote. That does not mean I agree with his stance entirely but that is not personal to him or the issue.”
However according to angry alumni Starr and other Proposition 8 proponents are on the wrong side of history and his actions have an important effect on the Pepperdine family.
“Until he’s walked in the shoes of a person who has experienced discrimination it’s impossible for him to have empathy Black said.