Nine days before he will be making a similar argument before the California Supreme Court, the state’s senior assistant attorney general tried out his risky argument in favor of overturning Proposition 8, the controversial ballot measure passed in November that made same-sex marriage illegal in the state.

University of Pacific’s McGeorge Law School sponsored a program at their courtroom Tuesday evening for Chris Krueger, California senior attorney general, to argue before a full courtroom Attorney General Jerry Brown’s argument that eliminating the right to same-sex marriage is removing a fundamental right and can not be changed by the amendment process.

“In California sexual orientation is a protected class,” Krueger said. “The only way they can lose their rights is if the state can prove a compelling interest in changing their status.”

McGeorge was unable to get a representative from the attorneys arguing in support of Proposition 8, but they did get attorney David Lewis Llewellyn, Jr. from Chapman Law School in Orange, Calif., to take their role. Llewellyn filed a friend-of-the-court brief in favor of retaining Proposition 8.

He argued that the people had spoken, they followed all the correct procedures to amend the constitution, and the court should respect the will of the people. He also argued Brown’s argument that same-sex marriage is a natural right is not compelling because “over a year ago this right wasn’t even in the Constitution.”

He used the history of the death penalty in California as precedent why the court should reject the argument that amendments cannot change fundamental rights.

“When talking about fundamental rights, it would be difficult to determine a more fundamental right than the right to life,” Llewellyn said. “It’s hard to argue marriage, which holds the same rights as domestic partnerships, is a more fundamental right than life.”

In 1972 the California Supreme Court ruled the California death penalty was cruel and unusual punishment. Proposition 17 was passed in 1972 modified the Constitution to reinstate the death penalty.

Llewellyn said that in “People v. Frierson,” (1979) a case with “circumstances very similar to this case,” the Supreme Court decided the people had a right to self-government that could not be taken away by any of the branches of the government.

The McGeorge program only lasted one hour, while the oral arguments before the California Supreme Court will take three hours. The arguments missing from Tuesday’s program included if Proposition 8 is an amendment or revision to the Constitution, if Proposition 8 violated the separation of powers and if Proposition 8 invalidates the 18,000 marriages that took place before the same-sex marriage ban.

McGeorge Dean Elizabeth Rindskopf Parker announced the law school will be televising the oral arguments live from the California Supreme Court chambers in San Francisco. The program will start at 8:30 in the McGeorge lecture hall on March 5.

Dan King can be reached at [email protected].