Proposition 8 legal battle in California heats up

The legal battle over whether or not to allow Proposition 8– a measure that would change the state’s Constitution to define marriage as between one man and one woman — is heating up in California. California Attorney General Jerry Brown filed a motion with the Calif. Supreme Court Friday arguing that the amendment should not go into effect.

On the other side of the issue, supporters of the measure, which won narrowly in November, have brought in former Clinton Whitewater prosecutor Ken Starr to argue their case. Starr, who is now Dean of Law at Pepperdine, filed a motion Friday asking the Supreme Court to immediately nullify the estimated 18,000 same-sex marriages which were conducted in the state since May.

Citing the brief filed by Starr, the Sacramento Bee quoted the former prosecutor as arguing the nullification of marriages performed under the Supreme Court ruling allowing same-sex marriage as this:

“Proposition 8′s brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions or exclusions.”

In an irony fit for his days as former President Bill Clinton’s nemesis, Starr continues in the brief arguing:

“For this court to rule otherwise would be to tear asunder a lavish body of jurisprudence. That body of decisional law commands judges – as servants of the people – to bow to the will of those whom they serve – even if the substantive result of what people have wrought in constitution-amending is deemed unenlightened.”

Meanwhile, AG Brown has concluded, according to the L.A. Times, that the ban cannot go into effect:

“Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.”

Brown’s brief argued that the amendment violated the Constitutionally promised rights established in case law, and allowing the amendment to become effective would create a “tyranny of the majority,” which, he argues, is supposed to be prevented in part by the Constitution itself.

The cases could be heard as soon as March.