Former Whitewater prosecutor says Proposition 8 about voters

NASHVILLE, Tenn. (ABP) — The controversy over California’s Proposition 8 is larger than homosexuality, Kenneth Starr, lead counsel for a group set to argue before the state’s Supreme Court in favor of upholding the ban on same-sex marriage March 5, told religious broadcasters Feb. 10.

Nadine Strossen and Ken Starr discuss First Amendment issues at the National Religious Broadcasters convention in Nashville.

Starr is the former United States solicitor general most famous for leading the investigation prompting the impeachment of former President Bill Clinton. At a public-policy session at the 2009 National Religious Broadcasters convention in Nashville, Tenn., he said the larger issue is whether the constitutional revision, approved by 52 percent of California voters, is enough to deny any minority group the right to marry.

“There is certainly a fundamental right to marriage,” Starr said. “The Supreme Court has so said, and it’s deeply rooted in our traditions, but we regulate marriage. Plural marriage, which is lawful in 28 countries that are members of the United Nations, would not be recognized. There are many, many regulations — age regulations, et cetera.”

Starr said what is being argued in the case is not the definition of marriage, but whether the people have power to amend the state constitution to overturn a specific decision of the California Supreme Court.

“It’s a very important, nonetheless different, issue than the underlying constitutional issue of the right to marry someone of the same sex,” he said.

Nadine Strossen, former president of the American Civil Liberties Union, compared Proposition 8 to laws in 16 states that formerly had deep-rooted traditions of preventing interracial marriage.

“It has broader implications far beyond the gay-marriage debate,” she said. “It has broader implications for religious people in particular, and the issue is whether the people of California, by a bare majority of those who turn out to vote on a particular issue, can revise the California Constitution to take away what has been held to be a fundamental right.”

Strossen said the constitutional question is whether it rather takes a super-majority process to take away fundamental rights, such as two-thirds vote of both houses of the legislature.

“One of the many friend-of-the-court briefs that was filed on our side was filed by a very broad array of religious organizations saying we have to be very careful, because if the people of this state by a bare majority vote can take away fundamental rights — can take away equality rights — from an unpopular minority group, then we have to worry that can be a power that can be used against religious communities,” she said.

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Bob Allen is senior writer for Associated Baptist Press.