Ken Starr Has Something to Say

The constitutional fight over marriage in California, though civil, has already exhibited a certain potential for absurdly crowded courtroom scenes. And with the litigation now headed for the First District Court of Appeal, oral argument may get even more zooey.

Kenneth Starr, the former independent counsel who made Bill Clinton’s life so hard, is now co-counsel for some amici in the marriage cases. And he filed a motion this week asking that the justices add 10 minutes to the clock when they get to oral argument, so his clients can make their points about the pros of a one-man, one-woman institution.

This is interesting on a couple of levels. For one thing, it’s the second time so far this year that Starr, dean of Pepperdine’s law school, has popped up in a prominent case in California. He also joined the defense team for Michael Morales, a death row inmate attacking California's lethal injection procedure in federal court.

Then, this latest move also highlights the continuing tension between the camps fighting to maintain the ban on gay marriage. Starr says his clients (including the Church of Jesus Christ of Latter-Day Saints) and other amici that have joined his motion want to venture into arguments that Attorney General Bill Lockyer refuses to make, like how the definition of marriage can affect children’s development. “Naturally, the pro-same-sex marriage parties dispute our arguments and conclusions,” Starr wrote in his motion, filed Monday. “Somewhat surprisingly, however, the attorney general does so as well. Indeed, the attorney general reserved some of his sharpest criticisms for our positions.”

To anyone who’s been watching the ongoing litigation, this isn’t really surprising. Lockyer, a Democrat who’s emphasized his support for domestic partnerships, made clear at the outset that he’d limit his arguments to less-controversial territory. Still, despite their differences of opinion, he’s not about to try to muzzle Starr. He just won’t help him. “He doesn’t object to the addition to oral arguments so they can say their peace, as long as it doesn’t come out of our time,” spokesman Tom Dresslar said Wednesday. (Corrected: He said this Wednesday, not Thursday as we had originally written.)

Some litigants arguing for gay marriage are going just a bit further. While not technically opposing Starr’s request, lawyers at Heller Ehrman and the National Center for Lesbian Rights filed a short brief Thursday to “call the court’s attention” to a few things. Namely that, with six consolidated cases, there are already eight sets of attorneys with a stake in oral arguments, and two of them have put forth arguments very similar to Starr’s. And, counting 13 amicus curiae briefs in the cases, they suggest it’s “likely” a number of their authors would ask to be heard if Starr’s motion is granted.

Pam Smith

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