Opinion L.A.

Observations and provocations
from The Times' Opinion staff

« Previous Post | Opinion L.A. Home | Next Post »

Proposition 8: Starr argues that any right can be taken

CaliforniaCampaign 2008Campaign financeConstitutionElectionsGay MarriageGay RightsLawyersSacramentoSupreme Court

Ken_starr_ap_khue_bui_4 An interaction between Chief Justice Ronald George and Kenneth Starr, who is defending Proposition 8, gets to the heart of the argument.

Starr argues that voters have an inalienable right to am end the state constitution as they see fit through simple majority vote, inlcuding "things that tug at the equality principle." But George leans in on the question and asks whether, if Proposition 8 had specifically said that homosexuals had no right to form a family relationship or raise children, that still could be done by amendment? Starr replies yes.

George pursues it further, asking if California voters could remove the right to free speech? Starr says yes.

Photo: AP / Khue Bui

 

Comments () | Archives (19)

The comments to this entry are closed.

Nathan Kennard

Simple majority vote to amend California's constitution, may reflect an accurate representation of how the law is written today. That is the essence of the argument Starr puts forth. According to Starr, federal constitutional protections are subject to elimination by individuals within a state because that is a protected right.

Starr is himself, on thin ice asserting that state rights trump federal rights. This question should have been settled conclusively by the civil war and legal reasoning subsequent to it.

Daniel

Wow, I wonder if Starr realizes the Pandora's Box of evils he is asking the Court to open that the will of the people is sovereign and supreme, even if it flies in the face of the US Constitution.

By his logic, then he would have to agree with an initiative passed in California that said no old white white guys can argue before any court of law.

Daniel

Wow, I wonder if Starr realizes the Pandora's Box of evils he is asking the Court to open that the will of the people is sovereign and supreme, even if it flies in the face of the US Constitution.

By his logic, then he would have to agree with an initiative passed in California that said no old white white guys can argue before any court of law.

Mitford

Starr was addressing whether the people can amend the CA State Constitution to remove a right--which they can. But if the people remove a right under the State Constitution, which is concurrently protected by the Federal Constitution, the Federal Constitution would still protect the right under the 14th Amendment.

fern

How often was the word "hypothetical" by Starr and the court??? If one would follow Starr's argument to the bitter end there there would be a civil war.

Thanks the churches you can be proud...

D

Ken Starr is technically correct. A state constitution need not track every right ensured by the federal constitution perfectly. If a state were to take away the right to free speech, the federal constitutional right espoused in the First Amendment would act a floor. Also, states may expand rights beyond the scope of the U.S. Constitution (see, e.g. PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), allowing the state of California to guarantee broader speech rights in its state constitution than called for by First Amendment). The US Supreme Court has recognized heterosexual marriage as a "basic civil right[] of man" (see Loving v. Virginia, 388 US 1 (1967), striking down all race-based restrictions on heterosexual marriage as in violation of Equal Protection and Due Process).

The United States Congress passed, and President Clinton signed, the Defense of Marriage Act ("DOMA"), 110 Stat. 2419 (1996), which (1) allowed states to not recognize marriages licensed in other states and (2) forbid the federal government from acknowledging same-sex marriage. Critics claim that DOMA violates the "full faith and credit" clause as well as due process, but alll challenges against DOMA have proven unsuccessful (see, e.g., In re Kandu, 315 B.R. 123 (2004), finding that DOMA did not violate comity or the Fourth, Fifth, or Tenth Amendments to the U.S. Constitution and dismissing a joint bankruptcy petition of two women married in British Columbia unless debtors moved to bifurcate). No challenges to DOMA have reached the US Supreme Court.

So, the takeaway is that a state may lower its constitutional guarantees as low as it wants, but the minimum protections of the federal Constitution still apply.

Jim Rousch

Ken Starr is willing to overturn the U.S. Constitution?

I say he should be disbarred and arrested for treason, inciting civil unrest and advocating violating civil rights.

Ken Starr is yet another example of why we should question the loyalty of any conservative in this country.

Jim Rousch

I think it's obvious by now that Ken Starr hates the United States of America. The mere fact that he is willing to usurp the Constitution is proof enough.

Steve

So if a 51-49% majority voted to put Starr to death would he go quietly? What about a proposition to strip religious organizations of their tax status and removing religious leaders' free speech rights? Perhaps a proposition taking all property away from registered republicans?

Jose Rodriguez

I think that we should remember that Mr Starr was being asked a hypothetical question, and as such was speaking from a hypothetical perspective. As D stated in his post, Mr. Starr is "technically" correct, but Mr. Starr was quick to acknowledge that federal law would act as a safeguard against such hypothetical litigation. To be clear, Mr. Starr believes that the people have a right to amend the constitution as they deem fit, but that such hypotheticals as barring homosexuals from forming families and raising children, or annulling freedom of speech would not hold muster because of federal laws and rulings prohibiting such changes.

John Keefe

In yesterday's testimony before the CA Supreme Court, Kenneth Starr stated that "Rights are ultimately defined by the people." In the Declaration of Independence, Jefferson wrote that humans have "inalienable rights..." I have always understood this to mean that we have certain rights by the very nature of being human. The history of this country has been one continuous struggle to recognize these "inalienable rights", even in the face of popular definition of what constituties a right.

Past Caring

Proving we need Freedom from Religion.
Religion:
The most dangerous drug man ever created.

Gerry

Did anyone actually listen to Starr's response before they commented?!

I did, and he stated several times that if the people of California voted unwisely to abridge basic rights the U.S. Constitution would overrule such an action.

View the oral arguments here:
http://www.calchannel.com/images/sc_030509.html

His comment begin at about the 2 hours 5 minutes mark

Grant

Using Starr's logic, could we place on the ballot an initiative that says Mormonism is a cult and can be banned from the State?

DavidUSCA

Marriage is part of the American Dream. Do not all Americans have the inalianeable (non changable) right to dream of and with a life partner, and have that woven into the fabric of all aspects of the American Dream, to include the white picket fence? I believe the court focused too much on the mental legal side, I didn't see any empassioned expression for the emotional side which is paramount to this issue. This is a full on emotional attack by "unwise" and misinformed religious factions.
I hope Kennard can get past her blather on the fact gays are only losing the word "marriage". That word holds so many realities, I believe it is quite irreplacable.

Lou H.

> I say he should be disbarred and arrested for treason, inciting civil unrest and advocating violating civil rights.

You say that based solely on what you've read on a blog? Let's hope you never get picked to serve on a jury if your standards of evidence are so low.

Loonesta

Star is a dangerous creep, a typical product of Pepperdine's now-obsolete methodologies and he gives off the stench of the mid-1990's. As to anyone listening to him say anything whatsoever at any time, why would anybody who isn't stuck at Pepperdine want to even acknowledge this being is still in body? Whoever allowed an MBE prof to be a prosecutor in his off-time deserves to be dealt with expediently.

Jose Rodriguez

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —

The Declaration Of Independence states that men are endowed by their "Creator" with certain unalienable rights. We are not born with them. Governments are instituted to secure the inalienable rights OF THE PEOPLE, whatever these may be, and governments derive their just powers FROM THE CONSENT OF THE GOVERNED. This is the foundational base upon which our entire form of government has been established. That government cannot subvert the will of the people, upon which the government derives its just powers, without running the risk of having that power taken from them by the people. This has been the overriding pattern in all subsequent United States law and jurisprudence.

Jose Rodriguez

Using Starr's logic, could we place on the ballot an initiative that says Mormonism is a cult and can be banned from the State?

Grant,

Are you aware that religion is categorized as a suspect class by the Us Supreme Court? The Supreme Court has recognized that race, national origin, religion, and alienage are suspect classes, and therefore any laws discriminating against these classes are analyzed under strict scrutiny. As such, religions are subject to the same strict scrutiny that is applied to regulations that affect groups that fall under a "suspect classification.

Under Federal law, a ban on "Mormonism" would not pass muster as it is considered a suspect class and would be thrown out.

Are you ware that issues of gender, while recognized by the State of California as a suspect class, is NOT RECOGNIZED BY THE US SUPREME COURT as a suspect class?

Using Starr's logic, as stated by him in HIS ACTUAL COMMENTS, banning Mormonism would be dead in the water , as it is protected by federal law.


Connect

Advertisement

In Case You Missed It...

Video


Categories


Recent Posts
Reading Supreme Court tea leaves on 'Obamacare' |  March 27, 2012, 5:47 pm »
Candidates go PG-13 on the press |  March 27, 2012, 5:45 am »
Santorum's faulty premise on healthcare reform |  March 26, 2012, 5:20 pm »

Archives
 


About the Bloggers
The Opinion L.A. blog is the work of Los Angeles Times Editorial Board membersNicholas Goldberg, Robert Greene, Carla Hall, Jon Healey, Sandra Hernandez, Karin Klein, Michael McGough, Jim Newton and Dan Turner. Columnists Patt Morrison and Doyle McManus also write for the blog, as do Letters editor Paul Thornton, copy chief Paul Whitefield and senior web producer Alexandra Le Tellier.



In Case You Missed It...