In the Hearing of the Century, NCLR Hopes to Overturn Prop. 8

On Thursday, the seven justices of the Supreme Court of California will convene in San Francisco for a three-hour hearing to decide the fate of Proposition 8, which outlawed gay marriage in California after the Court found in May that denying marriage to gays and lesbians amounted to a denial of a “fundamental right.”

It’s hard to diminish the importance of this hearing, not just for gays and lesbians, but for civil rights groups and minorities everywhere. California’s court is the most watched and emulated in the nation. The decisions and reasoning it makes are often applied in courts from coast to coast. In this week’s hearing, the Court will decide not just the immediate future of gay and lesbian marriage in California, but whether civil rights can be stripped from a minority by a simple majority vote.

Leading the charge to overturn Prop. 8 is the National Center for Lesbian Rights. Its legal director, Shannon Minter, will be the first attorney to present his case, our case, to the Court on Thursday. Throughout this week, Queerty will be your first source for news, analysis and in-depth stories on this landmark and historic hearing. We begin today by speaking with NCLR Executive Director Kate Kendall on the game plan they have for Thursday’s hearing.

QUEERTY: All eyes are on California, where the NCLR’s Shanon Minter will be doing much of the arguing in the Supreme Court case this week. What’s the game plan?

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Kate Kendall:The court hearing is obviously a really extensive one. It will be at least three hours. That’s the time the court has allotted. Those challenging Prop. 8 will go first. Shannon Minter is our legal director at NCLR. He is arguing first.

What is the argument you’re making?

What we are arguing – and I think you’ll see slightly different perspectives from all those who argue in support of invalidating Prop. 8 – is that it really represents an unprecedented exercise of majority power and a very dangerous exercise. For the first time ever, Prop. 8 represents a situation where the rights of a minority group were able to be stripped away by a simple majority vote.

One doesn’t need to be a voracious student of history; you only have to understand some of our history in passing to know that if the majority were permitted to vote on past, key questions of civil rights and individual rights in this country, we would have been set back a great deal on race issues, on criminal justice issues on reproductive rights issues on women’s rights. And yet, that’s what we’re facing here.

So what we’re asking the court to do is recognize what a monumental change Prop. 8 is to our Constitution, and that such a significant structural reordering of how the law protects people under the Constitution can not be achieved by a simple initiative vote at the ballot box. Instead, it must go through what is a revision process that is prescribed under the Constitution, so that a proposed revision goes to the Legislature first and, if it wins 2/3’s majority, it then is referred to the ballot for the electorate to vote on. It is that process that is a part of Constitution that we argue should have been followed with Prop. 8.

Attorney General Jerry Brown’s argument is a little wider. It’s that essentially arguing that denying gay people marriage is wrong and that it’s a fundamental right. Do you see these two arguments, his and NCLR’s, as being complimentary?

Yes. The Attorney General’s argument is exactly as you characterize it. It is a more broad argument. It is a more general argument founded in general principles of how the Constitution should operate. It’s really an argument that only the Attorney General could make. The Attorney General is charged with defending the Constitution and, in his role, he is uniquely positioned to say what he said in his pleadings, which is that Prop 8 is so fundamentally counter to the most basic understanding of how the Constitution operates that it simply can’t be upheld as a proper amendment.

Our argument is more specific one. His a more general one, but both make the same point: That if Prop. 8 is allowed to stand, it will be a blow to the foundation of how constitutional law operates.

Has NCLR and the Attorney General’s office discussed the arguments?

I’m sure. I’m sure that Shannon, our legal director, has had numerous conversations with Chris Krueger, who is the attorney who will be arguing from the AG’s office.

What do you think is the biggest challenge facing the coalition opposing Prop. 8 that will come from Ken Starr’s argument?

I think the argument that our opponents will make is twofold—and it’s the argument they’ve made all along. The first is that Prop. 8 only restores the “traditional” (their words) definition of marriage and that it does not deny a fundamental right or undermine equal protection. And even if it did do that, undermine equal protection, that is something that the voters are perfectly entitled to do.

The original Supreme Court ruling that allowed gay marriage in California called it a “fundamental right.” Now the same people are being asked to, it seems, rule on that issue again. Do you have any sense of where the court is on this issue?

I don’t. It’s notoriously difficult to try to figure out or guess how a court is going to come out on any particular case. Certainly, if they uphold Prop. 8 there’s no question that undermines their previous landmark ruling in the marriage cases. That would be, I think, a very disappointing outcome. Not just for those of us who support full equality but really for the role of the court itself.

However, this is an unprecedented situation, and it’s always harder for a court to make a ruling in a controversial case of first impression – a case which has never been presented to it before – then in questions that are more familiar. So, it’s a tough call how the court may come out and there are certain ways we think that our argument is right and legally correct and sound and certainly correct as a matter of justice. But obviously, these seven justices will be making the final call on that.

There are marches and rallies planned next week. What should gay people be doing right now?

Well, I think—we’re not a part of any of the rallies that are being organized, because obviously, we have a specific role to play, but I do think it’s very important for our community and allies to stand in solidarity, opposed to Prop. 8. To certainly attend rallies or activities if community members are interested– but just as important is to have private and personal conversations with neighbors, friends, co-workers, family members, to write letters to the editor, to write letters to your church newsletter or your school newspaper or newsletter, talking about how important it is that the court strike down Prop. 8 and the threat Prop. 8 poses to any minority rights.

The reason we have such a broad array of support from our friend of the court briefs for invalidating Prop. 8, more briefs than that have been filed in any case, ever, before the California Supreme Court is that everyone understands in the labor, business and civil rights community how dangerous Prop. 8 is for California, and for other minority groups.