About the Supreme Court's "immigration decusuib" -- and Justice Nino's freak-out. Plus: UVa President Terry Sullivan is reinstated!

-- from a WaPo e-newsletter this morning

by Ken

No, I don't want to talk about immigration, at least not right now. I'm more concerned about this "decusuib" the Supreme Court has somehow gotten itself mixed up with.

My first thought was that it's that damned Scalia, showing off how smart he think he is with some goddamn mysterious . . . I don't know what, Latin? My Latin isn't so good, but "decu-" sounded like a Latin prefix that had taken a wrong turn, and ditto "suib" at the root or suffix end. Or maybe it's "Slow Anthony" Kennedy, who must surely know how smart he isn't and is maybe putting on airs in an attempt at cover-up? Then again, I wouldn't put anything past the Court's very own slickster-in-chief, "Smirkin' John" Roberts.

A lot of Latin gets thrown around Supreme Court business, where stare decisis probably finds its way onto the lunch order. (It sure doesn't seem to find its way into deliberations anymore, notwithstanding the crossed-fingers testimony Smirkin' John and "Sammy the Hammer" Alito served up at their confirmation hearings -- those kidders!) Still, I was surprised that the boys and girls at washingtonpost.com thought everyone would be so familiar with decusuibs as to require no explanation.

Until I realized that it's actually something I do all the time -- the right hand perched over the keyboard a whole character too far to the left. Actually, I usually do it in the opposite direction, the computer keyboard having grown so large that my right hand often seems instinctively to land too far to the right. When I've done that a few times is when I'm most likely to overcorrect and land the right hand too far to the left, thereby producing whole sentences made up of words often more mysterious as decusuib. It can look very puzzling indeed when words formed mostly or entirely of left-hand letters butt up against right-hand weirdnesses.



FOOTNOTE: JUSTICE NINO THROWS
ONE OF HIS PATENTED TANTRUMS

One person who's clearly no fan of the Supreme Court immigration decusuib is the Court's own beached blimp, Justice Nino "I'll Huff and I'll Puff and I'll Blow Your House Down" Scalia. As I've pointed out here countless times, one of this loathsome blowhard's two life achievements is creating the reputation for having a "great legal mind." Unfortunately he's exposed himself all too clearly in his quarter-century-plus as a disgrace to our highest court -- not just as having a poorer legal mind than your pet schnauzer for as being even more savage than he is imbecilic. (In case you're wondering what I'm rating as his other life achievement, that would be befouling the Supreme Court for that quarter-century-plus and doing perhaps more than any other individual ever has to undermine not just American justice but American decency.

And yet the doodysack continues to top himself. As Jeffrey Toobin reports in a newyorker.com blogpost, "That's Just Nino: Scalia's Arizona dissent," Doodyman was in high dudgeon over his dim-bulb colleagues' failure to uphold the whole of the Arizona immigrant-bashing law. After noting that "the last days of a Supreme Court term rarely show off the Justices to great advantage" and that Superturd "has earned a reputation for engaging in splenetic hyperbole," "but he outdid himself this time."

[H]is opinion, which he read from the bench in his usual clear basso, ranged over several contemporary controversies, whether or not they had any relevance to the Arizona case. He noted, for example, that Obama recently used an executive order to accomplish some of the goals of the DREAM Act, and exempt certain young people from deportation. (This decision came well after the Arizona case was argued and was legally irrelevant to the issue at hand.) "The president said at a news conference that the new program is 'the right thing to do' in light of Congress's failure to pass the administration’s proposed revision of the Immigration Act," Scalia said. "Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind." Scalia did not explain how declining to deport these individuals boggled his mind.

"The issue is a stark one," he went on. "Are the sovereign states at the mercy of the federal executive’s refusal to enforce the nation’s immigration laws? A good way of answering that question is to ask: Would the states conceivably have entered into the union if the Constitution itself contained the court’s holding?" If this had been the original view of the Framers of the Constitution, "the delegates to the Grand Convention would have rushed to the exits from Independence Hall." In other words, according to Scalia, if Arizona had known what was coming from his colleagues yesterday, they never would have joined the United States. No other state would have either. The Arizona ruling, in Scalia's telling, would have destroyed the country even before it was born.

When Superturd gets around to noting that "in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, and includes in his list Southern states' restrictions on freed blacks, Toobin notes, "It's worth remembering what kind of immigration the states (especially Southern ones) handled in those bygone days; much of it had to do with slavery, of course."

Toobin concludes with a stroll of his own down memory lane.

All the Justices, over the past quarter-century, have felt the sting of Scalia's disapproval at one point or another. It bothers some of them. In her early days on the Court, Sandra Day O'Connor, as I wrote in The Nine, was wounded by Scalia’s nasty-grams. But over time, O'Connor learned to brush him off. She would say, "Oh, that's just Nino." Alas, it is.

BREAKING NEWS: OUSTED U. OF VIRGINIA PRESIDENT
TERRY SULLIVAN IS REINSTATED

"Sullivan had signaled to the board prior to her ouster that she advocated 'incremental' change -- not the bold, swift steps advocated by others such as Rector Helen Dragas, the driving force behind efforts to replace her."
-- from the AP report this evening of the UVa Board of Visitors' unanimous reinstatement of President Sullivan

Man, how do they get away with this crap? Is it any wonder that no one with a lick of interest in journalism takes the Associated Press seriously anymore?

About these famous "bold, swift steps advocated by others such as Rector Helen Dragas," to which now-reinstated President Sullivan was the impediment. As I've kept writing, name one goddamn frigging "bold, swift" step advocated by any of the crowd of scum that now has egg all over its collective face because of the stupidly Stalinist way they engineered Sullivan's ouster.

The closest we have to anything at all actually advocated by Dragas and her verminous coconspirators is their frequent muttering about some delusionally imagined bonanza from peddling phony-baloney online certificates, something that's not only demeaning to the university but indicative of gross financial incompetence. Really, if you're that stupid, you should be hiding out in a cave somewhere, not dictating policy for a major university.

Which is not to say that UVa shouldn't be looking at its online presence. But any dimwit who imagines there are riches in store there, as I've said before, should be barred from any input into the running of any school in the state.

So why is the AP passing on this egregious nonsense? I suspect because at heart it has nothing to fall back on except a set of mind-circumventing knee-jerk right-wing reflexes.

It's probably not entirely the fault of the anonymous AP "reporter" that the fairly length report contains vritually no actual news beyond the board's unanimous vote to reinstate and President Sullivan's victory statement: "'I want to partner with you in bringing about what's best for the university,' she said as cheers erupted from supporters who had gathered outside the Rotunda." Not entirely their fault because clearly nobody directly involved is talking about the actual terms of the reinstatement.

You can be sure that none of the cabalists has retreated from his/her delusional position about "incremental" vs. "radical" change. Which is why it's disappointing that one term of the reinstatement wasn't the resignation of all members of the UVa Board of Visitors who participated in the putsch, who are clearly both dangerous sociopaths and educational and administrative incompetents.

Instead, today's smilefest seems clearly to be an exercise in saving face after the rudely public display of administrative ineptitude. Whether there's anyone on the job with a grain of competence to address the university's future seems as dubious as it's been since the original coup. The right-wing mentality behind the whole exercise has shown itself incapable of actually learning. And yes, Governor Bob pressed hard for a "settlement." Not because he has a clue about the issues, or gives a damn about the university, but because it was so frigging humiliating, and at the top of the news in Virginia every frigging day.

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Merely "moderately" crazy right-wing crazies may be more afraid of the ultra-crazies than we are

Hateful and loony as right-wing zealots like NOM's appalling Maggie Gallagher may be, they can still recognize that their side includes people just too crazy for public consumption.

When I was a child, my mother taught me that if you can't say something nice, don't say anything at all. The first time I encountered the gay-bashing members of Westboro Baptist Church was in 1998, when they picketed the funeral of my close friend Matthew Shepard, who was beaten and left to die tied to a fence in rural Wyoming.

What most shocked me was that, even as I attended the funeral of someone who had been murdered in a hate crime, I hadn't realized how deeply some people hate.

It wasn't until I saw those neon-colored signs with their ugly words against the snowy Wyoming landscape that I understood what my community was up against. . . .

-- Romaine Patterson, the start of a Washington Post
op-ed piece today, "Let Westboro Baptist have
their hate speech. We'll smother it with peace"

by Ken

It pays to know smart people. Since I wrote last night about Justice Sammy "The Hammer" Alito's perhaps-surprising lone-dissenting stand against the First Amendment right of the Westboro Baptist-Scum Church's right to torment funeral mourners with their psychotic homophobia, a legal-eagle online pal has suggested a very different dynamic to the High Court's ruling in Snyder vs. Phelps.

Most of us, I suspect, at least those of us who take the First Amendment seriously, gnashed our teeth and agreed with the eight justices in the majority: that there's pretty much no other constitutional conclusion to be reached. No matter how hateful the speech of the Irreverend Fred and his stooge-thugs, it has to be considered protected. After all, the purpose of the First Amendment isn't to protect popular speech. Popular speech doesn't need protecting. Where we test the free-speech guarantees limits is pretty much by definition going to be with awful speech. And so, the way I was thinking about it, the Phelpsians once again get away with their awfulness, now under the protection of the Constitution.

As my online wise man points out, though, we're hearing voice from the Right, including some of the most tireless and unrelenting homophobes, likee the founder of the National Organization for Marriage (NOM), Maggie Gallagher, who are quite unhappy with the ruling, and wish Justice Sammy's viewpoint had found wider support on the Court. Of course it's easier for these people, since they're not great believers in free speech themselves, except for themselves. It takes a moment, though, to realize that slapping down Fred Phelps can be an approved extreme-righ position. (Justice Sammy must be breathing a sigh of relief.)

What my friend argues is that for the organized, merely crazed zealots of homophobia, off-the-chart fruitcakes like the Irreverend Fred Phelps and his Westboro Baptist-Scum Church loonies are something close to their worst nightmare if the country comes to see them as the public face of homo-hating. It's practically a gift for those of us who believe in basic equal rights for all citizens. This is just a reminder that everything in the universe is relative, and yes indeed, it's possible for people as far gone as Maggie G, people who have learned to camouflage their bigotry and hatred in ways that are not only acceptable but often attractive or even compelling to ordinary folks to look at the Phelpsians and see that they're just plain nuts, and all too plainly so.

There's more to be said on the subject, in particular considering how the implications might be extended to the whole range of insanities now being shoved through the House of Representatives and state legislatures all over the country, but for now I want to -pick up with Romaine Patterson's WaPo op-ed piece at the point where we left off above.

When the Rev. Fred Phelps and his parishioners came back to Laramie the next year to protest at the trials of the men who murdered Matthew, they were in for a bit of a surprise. Several friends and I led a counter-protest, dressed as angels, silently encircling them, our huge outstretched wings blocking their vicious signs from view.

Having been face to face with the Phelps gang, my heart goes out to all the families, who, in their most vulnerable hour, have had to deal with this small band of cruel ranters.

After Laramie, it all changed. Westboro Baptist Church members realized that the more high-profile their protests, the bigger the response, so they started picketing at the funerals of soldiers killed in Iraq and Afghanistan. This past week, the Supreme Court upheld their right to do so. But where they go, angels have appeared as well, to form a living shield.

When Westboro announced that it would come to Tucson to parade around the funeral of 9-year-old Christina Taylor Green, gunned down in January in the attack against Rep. Gabrielle Giffords, the Arizona Legislature hurriedly passed a law setting limits on how close protesters could be to mourners. What filled me with pride, though, was seeing another community take inspiration from our own Angel Action protest more than a decade ago, depicted in the play "The Laramie Project."

As others have across the country, people in Tucson hunted up the PVC pipe and sheets and online pattern to make the costumes, and spread their wings.

To me, the lasting legacy of our counter-protest so many years ago is the enduring power of drowning out noise with silence, of smothering hate with peace.

I understand why the father of a soldier killed in Iraq sued Westboro Baptist after members jeered at his son's funeral. It is natural to want to banish such an abhorrent spectacle so that no one else will have to endure what you did. But I agree with Wednesday's ruling by the Supreme Court, because I support free speech. I know that there were many who stood by when Phelps yelled "God hates fags" at the funerals of gays or those who died of AIDS, but who mobilized in outrage when his vitriol was spewed in the direction of our brave men and women in arms, who died protecting his freedom and ours.

Patterson has a lot more to say, and I hope you'll read the whole piece, but she's making the same basic point that my e-friend did. The whole deal about free speech is that we're supposed to counter the worst speech with better speech.

And what people like that ghastly hate-monger Maggie Gallagher grasp is that the very awfulness of the Westboro gang's speech makes the job a whole lot easier. Naturally I don't say that this was what Justice Sammy had in mind in dishing out a rare rebuke to right-wingers. But sometimes these things just work out.

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Maybe DoJ's opinion of DOMA's constitutionality will make a difference eventually, but for now isn't it business as usual?

Does anyone really believe Justice Sammy "The Hammer" -- or "Slow Anthony" Kennedy -- will care a whit about the administration's opinion of the constitutionality of DOMA?

"This shows just how big a sea change yesterday's Justice Department announcement was -- not only has the department itself now said that it is unwilling to continue defending a blatantly unconstitutional law, but it's going to be hard to ignore its assessment that any sort of law that discriminates based on sexual orientation must be presumed to be unconstitutional."

-- Jennifer C. Pizer, National Marriage Project
Director for Lambda Legal

by Ken

Ms. Pizer is referring to the request from a California federal district judge, Jeffrey White, for an explanation of the government's continuing opposition to the granting of same-sex spousal health benefits to a lesbian federal employee, Karen Golinski, in the wake of Attorney General Eric Holder's announcement yesterday that the Obama administration will not defend challenges to DOMA in jurisdictions where there aren't existing rulings that obligate it to apply more rigorous standards, on account of how DOMA is unconstitutional. It so happens that Ms. Pizer and her law firm, Morrison & Foerster LLP, happen to represent, and for whom she has garnered several favorable rulings from the chief judge of the Ninth Circuit Court of Appeals, Alex Kozinski.

I wasn't going to write about the Justice Dept.'s admittedly highly surprising decision, because unlike most everybody else, I don't see it as, really, such a big deal. It ought to be a big deal, I know, and I can certainly understand why a lot of people are excited, after the Obama administration showed itself previously unable or unwilling to buck the traditional stance of the government in defending any defensible laws that are subjected to court challenge. Yes, I agree it's nice, but the practical effect . . . well, I'm not at all sure about that.

To get down to specifics, where Ms. Pizer sees a "sea change," I see mostly business as usual. Attorney General Holder made it clear that, while the administration isn't going to defend DOMA as long as, in its view, the jurisdiction involved permits it not to, it will continue to enforce the law, because it is still, after all, the law. And that's not going to change anytime soon. Clearly the situation isn't going to be resolved until the Supreme Court accepts jurisdiction and upholds DOMA (nobody really believes they won't, do they?), and then it will be, well, the law, just like before.

Apparently Judge White is mystified as to how the government can continue to enforce a law it has decided is unconstitutional and at least selectively refuses to defend. I don't see any problem, and I've got a feeling the government isn't going to either. The executive branch doesn't get to decide issues of constitutionality, and therefore its opinion has no bearing on enforcement. The Justice Dept. emphatically is charged with upholding the law.

I mean, haven't we been through this with DADT? Didn't the administration make it clear that, whatever its personal opinions of the law, it wouldn't deviate from enforcement until the law was changed, and it didn't. Indeed, as far as I can tell, it still hasn't, even though the law has been changed. The changes haven't been implemented, though, and any LGB military personnel who think it's safe to come out of hiding may be in for a rude awakening.

Nor am I much impressed by those favorable rulings from the Ninth Circuit. Hasn't the Supreme Court made it painfully clear by now that it not only doesn't take the Ninth Circuit seriously, it barely even considers it a real circuit, but as something more like a mock appeals court. I think from now on we can expect a portion of each new Supreme Court term to be devoted to "correcting" the un-circuit.

I'm told that the Justice Dept.'s new position not only may now be cited by other parties litigating similar cases, and also that it may pave the way for other legal positions taken by the DoJ. Okay, I'll be interested in seeing that. Perhaps it will really have some effect. I don't really expect so, though. It's nice, though, that the DoJ is no longer providing language to be cited by Justice Alito (somehow I'm seeing this opinion falling to him) when the Court upholds DOMA. You'd like to think that some of the new language being offered by the DoJ might find its way into a Court opinion striking down DOMA, and if that happens, all well and good, but I don't see that it changes anything now.

Except, of course, that the staggeringly tin-eared administration has managed to provide a rallying point for the forces of homophobia arrayed throughout the land. With growing acceptance in the land that Americans' rights are properly determined by right-wing-slanted polls, the administration may simply have increased the wave of relief that will be felt when the Supreme Court disposes of this "equal of marital rights" foolishness.

I'd love to be wrong about that. Maybe Justice Kennedy will be impressed by the socialist Obama administration's opinion of DOMA's constitutionality. (Yeah, right.) If it happens, great; at that point we have a sea change. Until then, well, not so much.

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Two Momentous Supreme Court Announcements Today! Sotomayor And Same-Sex Marriage

Big Supreme Court day today, for all of us-- but especially for the LGBT community in California and wingnut central Inside-the-Beltway. Any minute now the California Supreme Court will announce their ruling on the constitutionality of Prop 8 and on the legality of the 18,000 marriages that took place between the time same-sex marriage was legal and the Mormons and other primitive, bigoted and dangerous religionists managed to get marriage equality overturned. And later this afternoon President Obama is rumored to be announcing his first nomination for the Supreme Court, something that the hard right has probably put more man-hours into planning their fake outrage than Obama has into vetting his list.

I think the California ruling is scheduled at 10AM and it is widely expected that the Court will uphold Prop 8-- and the marriages that took place between June and November. The right-wing hate groups want the marriages declared invalid but are far more concerned about making sure Prop 8 is upheld. The head of one of the primary hate groups, Andrew Pugno of ProtectMarriage.com, said his Mormon-financed organization probably won't challenge the legal marriages. “It’s such a tiny number,” he said. “And it’s not the core issue.”

The tone of the court’s questions during oral arguments in March suggested that it would be unlikely to overturn Proposition 8. But several justices suggested that the proposition’s spare language-- 14 words, stating that only male-female marriages were “valid or recognized”-- was not explicitly retroactive.

Nationally the big news is the nomination of course. GOP fundraising and base mending depends on how big a stink they can make over whomever Obama nominates. And they and their allies at Hate Talk Radio and Fox are ready to make the most of it. The Supreme Court has been at one of its historically low points under Bush and his selection of John Roberts was one of the worst-- and most long-lasting-- of many terrible ordeals he inflicted on the country. As we've discussed before, just 3 days after the country was celebrating Obama's victory, the second-ranking Republican in the Senate, far right extremist Jon Kyl (R-AZ), who is also, ominously, a member of the Senate Judiciary Committee, threatened that he would filibuster any nominees not to his liking. By March, the whole crazed Republican Senate caucus signed a letter essentially thretaening the same thing. They insist that Obama's nominee share their very right wing "view on cases related to social, law and order and business issues." A friend of mine in Washington sent me a document that asks the simple question, "just what is that 'view' that these Republicans are defending? What sort of judges do they favor? Let's look at the record of the judges that were put on the federal bench when they were in power. The patterns couldn't be clearer:

·        Despite talk from some senators about “strict constructionism” and not “legislating from the bench,” judges installed when Republicans had the chance frequently pursued a political agenda rather than upholding the Constitution and the law.
 
·        Their political agenda consistently favored those at the top in our society instead of ensuring equal justice and personal freedoms for everyone.
 
As the report available from the Alliance for Justice web site describes in more detail, the current Supreme Court…
 
·        Ruled that a major corporation could cheat a woman who worked there for 19 years out of tens of thousands of dollars in pay.
 
·        Took away the long established right of a man who was injured because of a defective heart device to hold the manufacturer accountable for the damage.
 
·        Said that government officials can fire or demote whistleblowers for exposing corruption, waste, or fraud to their supervisors.
 
·        Cut by 90 percent what a jury had awarded the victims of a massive Exxon oil spill.
 
·        Ruled that customers can’t sue bankers or others who helped corporations such as Enron to defraud them.
 
Appeals court judges appointed by President Bush have shown the same political bias.
 
·        One ruled that Chevron could legally mislead employees about their retirement benefits.
 
·        Another ruled that consumers can be required to pay for merchandise received in the mail even if they never ordered it.
 
·        Yet another allowed hospital executives to fire a nurse after she said publicly that she believed new staffing policies jeopardized the health of mothers and their babies.
 
President Obama has made it clear that he intends to appoint judges who will uphold the Constitution and the law to provide equal justice and personal freedoms for all, not just a few. That would be a dramatic departure from the appointments of the past eight years, and that is why he is being threatened with opposition in the Senate.

This morning's NY Times ran a piece, probably planted by Rahm Emanuel, doing a little Sistah Soulja dance at the expense of Obama's most stalwart defenders, trying to make the point that he isn't seriously considering anyone even nearly as far to the left as Roberts, Alito, Thomas and Scalia are to the right.

Pamela S. Karlan is a champion of gay rights, criminal defendants’ rights and voting rights. She is considered brilliant, outspoken and, in her own words, “sort of snarky.” To liberal supporters, she is an Antonin Scalia for the left.

But Ms. Karlan does not expect President Obama to appoint her to succeed Justice David H. Souter, who is retiring. “Would I like to be on the Supreme Court?” she asked in graduation remarks a couple of weeks ago at Stanford Law School, where she teaches. “You bet I would. But not enough to have trimmed my sails for half a lifetime.”

While there are clear political advantages to Mr. Obama if the perception is that he has avoided an ideological choice, Ms. Karlan’s absence from his list of finalists has frustrated part of the president’s base, which hungers for a full-throated, unapologetic liberal torchbearer to counter conservatives like Justice Scalia.

It has been more than 40 years since a Democratic president appointed someone who truly excited the left, but Mr. Obama appears to be following President Bill Clinton’s lead in choosing someone with more moderate sensibilities.

Neither Emanuel nor the president is so thick as to think any of this will placate the drooling reactionary savages out to make a stink and a buck. Nor will it calm treacherous self-servers like Ben Nelson (D-NE), Evan Bayh (D-IN) and Blanche Lincoln (D-AR), out to show their red state constituents that they know how to stand up to a Democratic president. But, for now, what the White House seems to be doing is setting the table to make it clear that although "some liberals said they wished Mr. Obama would be as bold in reshaping the court from the left as Mr. Bush was from the right," he's going to be nominating moderates. To the GOP it wouldn't make a difference if he nominated a moderately progressive judge like Diane Wood or like Sonia Sotomayor or if he just went and proposed Fidel Castro or Kim Jong-il. They'll be screaming their heads off like its the end of the world no matter what he does.

We're hearing that President Obama will nominate Judge Sotomayor at 10:15AM eastern time. And the NY Times just confirmed it.


UPDATE: As Expected...

The California Supreme Court ruled (6-1) that Prop 8 was constitutional and, unanimously, that the 18,000 marriages are legal. So what now? Watch:

Breaking news: California AG Jerry Brown will urge the state's Supreme Court to void anti-gay Prop 8

IN BRIEF: "Brown, whose office requires him to defend state laws unless he cannot find reasonable legal grounds to do so, said after Prop. 8 passed Nov. 4 that he would support the initiative before the state's high court.

"But in a lengthy filing today, he argued that the measure was 'inconsistent with the guarantees of individual liberty' in California's governing charter."

From the San Francisco Chronicle's blog:

Brown asks state high court to overturn Prop. 8

Bob Egelko, Chronicle Staff Writer

Friday, December 19, 2008

(12-19) 18:04 PST SAN FRANCISCO -- State Attorney General Jerry Brown, in a surprise turnabout, asked the state Supreme Court late today to overturn Proposition 8, saying the voter-approved ban on same-sex marriage violates basic rights guaranteed in the state Constitution.

Brown, whose office requires him to defend state laws unless he cannot find reasonable legal grounds to do so, said after Prop. 8 passed Nov. 4 that he would support the initiative before the state's high court.

But in a lengthy filing today, he argued that the measure was "inconsistent with the guarantees of individual liberty" in California's governing charter.

"Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification," Brown said.

The authors of the state Constitution, he said, did not intend "to put a group's right to enjoy liberty to a popular vote."

Hours earlier, sponsors of Prop. 8 filed arguments asking the court to uphold the ballot measure, which passed with a 52 percent majority. Andrew Pugno, attorney for the Yes on 8 campaign, said he was disappointed at Brown's stance.

"It's unfortunate that the attorney general would not do his duty to defend the will of the voters," Pugno said.

The pro-Prop. 8 brief was filed by Kenneth Starr, the former Whitewater special prosecutor and now dean of Pepperdine University law school. He argued that the court should preserve the people's lawmaking powers by upholding the initiative and invalidating 18,000 weddings performed before the election.

Prop. 8 "does not broadly seek to diminish or eliminate the constitutional or civil rights of gays and lesbians," but is simply "about restoring and maintaining the traditional definition of marriage," Starr said. Decades of legal precedents, he said, require "judges - as servants of the people, to bow to the will of those whom they serve."

The court ruled 4-3 on May 15 that California's ban on same-sex marriage violated the constitutional rights of gays and lesbians to marry the partner of their choice and discriminated on the basis of sexual orientation. Prop. 8 amended the state Constitution to overturn the ruling and declare that only marriage between a man and a woman is "valid or recognized in California."

The court is reviewing lawsuits filed by gay and lesbian couples and by an array of local governments, led by San Francisco, that contend that ballot measure exceeded the legal limits on initiatives by destroying fundamental rights and stripping judges of their authority to protect a historically persecuted minority.

Such profound changes, the plaintiffs argue, amount to a constitutional revision - not merely an amendment - and require a two-thirds legislative vote to reach the ballot.

The justices could hear the cases as early as March and would be required to rule within 90 days. Other interested parties on both sides are scheduled to submit written arguments Jan. 15.

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