Strauss V. Horton - Oral Arguments

Oral Arguments

Oral arguments took place on March 5, 2009, at the Supreme Court's headquarters in San Francisco, while thousands from both sides protested outside. A television screen had been set up, displaying live shots from the proceedings within the court.

Kenneth Starr, lawyer for ProtectMarriage.com, argued that "Prop. 8 was a modest measure that left the rights of same-sex couples undisturbed under California's domestic-partner laws and other statutes banning discrimination based on sexual orientation," to the agreement of most of the judges. Chief Justice Ronald M. George, however, said, "It is just too easy to amend the California Constitution." Starr's argument was challenged in and out of court by two members of his own faculty who argued the court had an obligation to secure both equality and religious freedom, and majorities cannot assume to have the power to deprive minorities of fundamental rights. On this view, if these two fundamental rights clash, the government should get out of the marriage business altogether.

The main issue which arose during the oral argument included the meaning of the word "inalienable", and to which extent this word goes when used in Article I of the Californian Constitution. Christopher Krueger of the Attorney General's office said that inalienable rights may not be stripped away by the initiative process. Those claims were rebuffed by Attorney Kenneth Starr, who said, "rights are important, but they don't go to structure. ... rights are ultimately defined by the people."