Click to watch Mr. Bill Duncan, Director of the Marriage Law Foundation, give his ground-breaking talk on marriage at the inaugural "It Takes a Family to Raise a Village" Conference in 2009.

by Jennifer Roback Morse, Ph.D.
Ruth Institute Founder and President

Last week’s hearing in the California Supreme Court on whether the proponents of Prop 8 have standing to defend the measure in court seemed to go well for the defenders of natural marriage. But another issue lies beneath the surface of the court arguments. The issue is what kind of people are the marriage redefiners: Ted Olsen, Rob Reiner, and the American Foundation for Equal Rights?

Is their bid to deny Prop 8 proponents legal standing just the next step in the unfolding of the civil rights movement, as they seem to perceive themselves? I think the evidence from the courtroom shows beyond doubt that we are dealing with something else entirely. These people are bent on obtaining a particular outcome, no matter what the cost to the rest of the legal system. Advocates of minimum government, especially libertarians, should be more than wary about hanging around this type of person: they should avoid them absolutely, and call them out wherever possible.

Proposition 8 is the ballot initiative defining marriage as the union of one man and one women in the California Constitution. In 2008, California voters approved Prop 8, with 51 per cent of the vote, approximately the margin of victory that elected Obama. Since then, celebrity lawyers Ted Olsen and David Boies have brought a suit in the federal courts to argue that Proposition 8 violates the US Constitution.

Please note the high stakes here. If the courts decide that the US Constitution requires the redefinition of marriage that will be the end of the line for debate on the subject in the US. We will have genderless marriage throughout the US, overturning the constitutions of the majority of states.

So, the point at issue in last week’s hearing before the California Supreme Court was whether the proponents of Prop 8 (that is, the group of people who put Prop 8 on the ballot and who are legally responsible for it) have standing to defend the measure in court.

Before I went to San Francisco to cover the Prop 8 trial, I hoped that the marriage redefiners would try to distinguish their case. That is, would they try to come up with some argument that distinguishes the proponents of Prop 8 from proponents of other potential ballot initiatives? If they make no attempt to do that, we might conclude that they don’t care whether they destroy the initiative process. They just want what they want, and they don’t care about collateral damage.

I am sorry, but not surprised, to report that attorney Ted Olsen made no serious effort to create a legal argument that would apply to Prop 8 and not to other ballot measures. As I sat in the jam-packed courtroom, I sensed that the justices were appalled by his cavalier attitude toward the voters. One by one, the justices poked holes in Olsen’s theory.

Justice Carol Corrigan observed that Olsen’s theory would give the Attorney General the right to “pocket veto” any voter initiative. Justice Joyce Kennard noted that to agree with Olsen is to nullify the power of the people. Justice Kathryn Werdegar noted that “we” (meaning the Supreme Court of California) have always given ballot proponents standing in court.

In addition, Chief Justice Tani Cantil-Sakauye noted that this case was the first case in history in which the proponents were the sole defenders of a measure. In past cases, the proponents have stood “shoulder to shoulder” with the Attorney General. She asked what would happen to the state’s interest in a law, if the Attorney General refused to defend it. “Does the state’s interest evaporate?”