Pepperdine is in the midst of the Proposition 8 crossfire once again after School of Law Dean Kenneth Starr was named in December as lead counsel for ProtectMarriage.com in the California Supreme Court battle over the legality of the proposition. Proposition 8 passed Nov. 42008 effectively banned same-sex marriage in California.
Starr will defend Proposition 8 before the California Supreme Court in hearings that could begin as early as March.
Public Relations Director Jerry Derloshon said it was his understanding that ProtectMarriage.com asked Starr to join their legal team and he agreed.
President Andrew K. Benton affirmed that Starr is not representing the university in the case.
Starr is acting “not as dean of our law school but as … one of the top appellate advocates in the nation Benton said.
Benton further clarified that Pepperdine remains neutral on the issue and instead seeks to foster a safe environment for the expression of ideas on both sides.
To those who see Pepperdine as trying to churn the issue or sway the public as an institution they couldn’t be more wrong Benton said.
Three cases were filed to the California Supreme Court challenging Proposition 8 days after its passage, requesting the court overturn the proposition. In this case, the court will determine whether Proposition 8 is a legitimate amendment to the California Constitution or is instead an illegitimate revision. The court will also determine whether Proposition 8 violates the separation of powers between the three branches of government. Most importantly, this case will determine the fate of the18,000 preexisting same-sex marriages recognized before the proposition was passed.
California Attorney General Jerry Brown originally stated that he would defend Proposition 8, but in a legal brief filed Dec. 19 Brown wrote that while he agreed that Proposition 8 is a legitimate amendment to the Constitution and does not violate the separation of powers, it should be overturned because it violates the fundamental right of marriage afforded to all individuals.
In response to Brown’s analysis, Starr wrote in a brief that Brown is profoundly wrong” in asking the court to declare a “constitutional revolution.”
“His extra-constitutional vision is one of unprecedented judicial hegemony a sweeping power vested in the least-democratic branch that overrides the precious right of the people to determine how they will be governed Starr wrote. With all respect the Attorney General has invented an entirely new theory grounded in ringing principles of natural law and natural rights but utterly without foundation in this court’s case law.”
Many Pepperdine students alumni and outsiders have voiced concern that Pepperdine became improperly involved in the Proposition 8 campaign after Law Professor Richard Peterson appeared in television ads in October urging voters to “vote yes” on Proposition 8.
However Derloshon said there have been significantly fewer concerns raised by members of the Pepperdine community over Starr’s involvement than when Peterson appeared in television ads.
“An advocacy role in a TV ad especially a controversial one is different than the role of a counselor arguing the constitutionality of the question Deloshon said. Professor Peterson’s role as a spokesperson in the ad is a different thing than a constitutional scholar arguing the case in court of whether or not the vote of the people should stand. On that basis alone the reaction on the part of the public and our alumni has been different.”
Brian Brookey a 1987 Seaver alumnus who is now an attorney in Pasadena said Pepperdine School of Law’s involvement in the Proposition 8 campaign concerns him.
After graduating from Seaver College Brookey married and had three children with his wife before divorcing years later and marrying his life partner in July of 2008 – when same-sex marriage was legal in California.
While still married to his husband Brookey said he is saddened by what he sees as Pepperdine’s efforts to invalidate his marriage.
“When Prop 8 was passed my youngest daughter looked at us with tears in her eyes and asked my husband ‘Does this mean you have to move out'” Brookey said. “It is completely heartless … and it doesn’t acknowledge the fact that what were talking about is people couples and families.”
Pepperdine’s neutrality on the issue of same-sex marriage remains under fire with many individuals interpreting Peterson and Starr’s role in the campaign and ensuing legal battle as representative of the university.
“No one believes that Pepperdine is neutral Brookey said. Any neutrality was obliterated when Ken Starr took this case.”However administrators continue to stress that all members of the community should feel free and safe to express their personal beliefs and convictions.
“Too often there’s a convenience in just labeling or tagging Pepperdine when really what we’re talking about is the work of individuals who are living out their conscious Derloshon said. The university should not stand in their way. The university should encourage them to be who they are.”
