Professor’s defense of Prop 8 puts Pepperdine in crossfires

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Kenneth Starr’s involvement in Proposition 8 lawsuit sparks accusations that the university is homophobic.

By Olivia Damavandi / Staff Writer

Pepperdine University Dean of Law Kenneth Starr’s involvement in a lawsuit to nullify 18,000 gay marriages performed before Proposition 8 was passed in November, and advertisements by another university professor that supported the measure, have led to many believing the university is sending out homophobic sentiments, but the professors say they are protecting the majority’s vote.

The university’s president, Andrew Benton, said he could not comment on the issue.

The Malibu Times received letters advocating the boycott of the university because, as one from an unnamed Pepperdine alumnus read, it is “leading a hate campaign against gays and lesbians in the state of California.”

Responding to this sentiment, Jerry Derloshon, Pepperdine University director of Public Relations and News, said on Monday in an interview, “That’s a definite no. Any assertion to that affect is grossly untrue.”

During the campaign period of Prop 8, a proposed law to ban same-sex marriage, Richard M. Peterson, assistant professor of law and director of the Special Education Clinic at Pepperdine University, appeared in televised advertisements in support of the measure. The name of the university initially appeared in the advertisements, was then later removed at the request of Pepperdine officials, and finally reinserted and followed by the statement, “for identification purposes only.”

Shortly after Prop 8 passed, three lawsuits were filed by three different opponents of the proposition from San Francisco, which have been bundled into one lawsuit, claiming that such a law could not be enacted as an initiative amendment, but rather only by a constitutional “revision,” which requires either a two-thirds vote of the Legislature or a statewide Constitutional convention vote.

Responding to the legal challenges in mid-December, state Attorney General Edmund G. Brown Jr. agreed with the official proponents that Proposition 8 was properly enacted by voter initiative, and therefore did not require a vote of the Legislature. The Attorney General also rejected claims by Prop 8 opponents that the measure violated the separation of powers between the branches of government.

However, in his December brief, the Attorney General proposed a new, unprecedented legal theory that Proposition 8-despite being a properly enacted constitutional amendment-is itself unconstitutional because it violates “inalienable or natural rights.”

This led the California Supreme Court to ask Proposition 8’s official proponents, who have engaged Starr as lead council to “defend the people’s vote,” to file a brief responding to the Attorney General’s new “inalienable rights” theory.

Andrew Pugno, general council for the official proponents of the Proposition 8 campaign, said on Monday in an interview with The Malibu Times, “We are responding to lawsuits filed by people who oppose Prop 8 that are seeking to invalidate the people’s vote. They want the court to say that Prop 8 is invalid and therefore same sex marriage would become legal again.”

Pugno said when the three lawsuits were filed, the Supreme Court asked all parties to analyze the legal status of the marriages performed prior to the election, which amounted to a total of 18,000.

When asked why the official proponents are seeking to nullify the 18,000 marriages, Pugno stated, “The bottom line is Prop 8 doesn’t include any exclusions or exceptions for existing same-sex marriage. Only marriage between a man and woman is valid in the state of California, so we think it’s quite simple [as to why the marriages should be invalidated].”

“We are defending the people’s vote,” Pugno said. “We can’t be expected to do nothing.”

Douglas W. Kmiec. professor of constitutional law at Pepperdine, said he doesn’t think the court will invalidate the marriages performed before the passing of Proposition 8.

“I think it would be a serious violation of principles or due process to set aside those marriages,” Kmiec said. “The Supreme Court of California interpreted the [state] Constitution as it then existed to mean that marriage as a fundamental right should be extended to same sex couples as traditional couples, and also found that discrimination on the basis of sexual orientation was to engage in the use of a suspect classification. Those who came forward seeking to be married by the state of California in light of that ruling should be given the benefit of the law as it then existed.”

Pugno said the last round of legal briefs is due Jan. 21. “At some point after that, the court will schedule a hearing possibly as early as March,” he said.

Meanwhile, some people’s perception of Pepperdine has changed.

Although Benton did not want to talk overall about the issue, he did comment to The Malibu Times in an e-mail that Peterson and Starr have been “bombarded” by “inappropriate e-mail” and letters threatening a boycott of the university.

Derloshon said Pepperdine was required by law to remain neutral during the Proposition 8 election campaign leading up to the vote, and that both Starr and Peterson are involved as individuals and do not represent the views of the university.

“He [Starr] is regarded throughout the country as one of the nation’s leading constitutional scholars,” Derloshon said. “Here at Pepperdine, he engages his students in learning experiences. He is an educator on one hand, but a constitutional scholar and a counselor who is active in the professional legal field.

“Starr is not speaking on behalf of Pepperdine, he has engaged himself in a variety of cases.”

Regarding how Starr’s and Peterson’s involvement in Prop 8 will affect prospective Pepperdine students, Derloshon said, “I think there can be some backlash to the segment of the population in the country who would make a quick assumption that Pepperdine must be bigoted. But thinking, more considerate people who aren’t so quick to judge may learn from an inquiry or an e-mail that Pepperdine as an institution is anything but bigoted.”

A current Pepperdine law school student who wished to remain anonymous said he received e-mails from his family as soon as it was announced that Starr was going to join the legal representation of Proposition 8.

“Even though there was a part of me emotionally that got frustrated, you have to remove yourself from that initial reaction because at the end of the day you’re dealing with something that has real world implications,” the student said.

“As much as I disagree with what Ken Starr is doing, he’s one individual of the school and he’s not representative of it,” the student continued.