Ken Starr previews his Prop 8 oral argument, gets one thing right

by on February 11, 2009  •  In Marriage

Ken Starr, having signed on as lead counsel for the defenders of Prop 8 in the upcoming March 5 oral argument, apparently tried out a few of his arguments in a recent debate with former ACLU President Nadine Strossen.

What is most interesting to me is what Starr got right – his apparent openness to the substitution of civil unions for marriage as the relevant civil legal status. Here's the quote, as reported in Baptist Press:

Starr said he has "great respect" for the view that the state should get out of the licensing of marriages altogether. "I've seen very thoughtful Christians say, 'Get the state out of this. … If you want to be married by your priest, rabbi, minister, pastor, great — call it whatever you want. [But when you're] welcome to city hall, it's a civil union.' That may be the eventual way that we need to go, because you see the culture war that is so unfortunate."

Although Starr doesn't say so, his comment is consistent with prioritizing what should be the primary lgbt goal: not "marriage equality," but equality.  The key issue is that everyone who wants their couple relationship recognized should be part of the same legal category.  Whether it is called "marriage" or "civil union" (or whatever) is completely inconsequential.

More from Starr on his defense of Prop 8:

Perhaps giving a preview of what he will argue before the California Supreme Court next month, Kenneth Starr that the constitutionality of Proposition 8 turns less on the issue of "gay marriage" and more on the issue of whether the state's citizens have the power to overturn even controversial court rulings. Starr, dean of the Pepperdine University School of Law, made his comments during a forum at the National Religious Broadcasters convention in Nashville, Tenn.

"What is being argued before the California Supreme Court is: Do the people have power under the California constitution to amend the constitution so as to overturn a specific decision of the California Supreme Court? It's a very important but nonetheless different issue than the underlying constitutional issue of the right to marry someone of the same sex," said Starr, who has not been granting media interviews about the case.

Marriage already is regulated in many ways, he noted."Plural marriage, which is lawful in 28 countries that are members of the United Nations, would not be recognized here," he said. "There are many, many regulations — age regulations and so forth."

He took a gentle swipe at the 4-3 majority opinion, which was authored by California Chief Justice Ronald M. George. "The entire opinion … is very cultural," Starr said. "It is 'our history and our tradition,' and it's only in footnote 54 that it says, 'Oh, by the way, that polygamy stuff and plural marriages in 28 countries? That can't happen here because that's not our culture, that's not our tradition.' Well, guess what marriage has culturally and historically been [in the U.S.]?"


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