Tilted Forum Project Discussion Community - View Single Post - Prop 8 constitutional challenge likely to go to U.S. Supreme Court

Baraka_Guru · 01-12-2010, 05:35 PM

Quote:

Same-sex marriage showdown enters California courts
Siri Agrell

From Tuesday's Globe and Mail Published on Monday, Jan. 11, 2010 9:17PM EST Last updated on Tuesday, Jan. 12, 2010 3:12AM EST

Brown v. Board of Education, meet Perry v. Schwarzenegger. The legal showdown has begun in San Francisco, where two same-sex couples have challenged Proposition 8, a voter-approved law that outlawed gay marriage in the state of California in 2008, saying it violates the U.S. Constitution. Advocates on both sides of the battle believe it could be history in the making.

The case, which began Monday, is the first challenge of a state ban on same-sex marriage to be heard in a federal court. If it makes its way to the U.S. Supreme Court, as expected, it could ultimately determine whether gay marriage in the United States receives constitutional protection.

The details of the case are almost as dramatic as the potential consequences.

Two of its lead attorneys faced off in the epic legal contest that decided the 2000 presidential election, with David Boies representing Al Gore and Theodore Olson acting on behalf of George W. Bush. They are now working together to uphold the right of gays to marry, even though Mr. Olson is one of the country's most conservative lawyers.

Representing the proponents of Proposition 8 is Charles Cooper, assistant attorney-general under president Ronald Reagan and a former clerk to the late chief justice William Rehnquist.

Three of the men named as primary defendants, including California Governor Arnold Schwarzenegger, have refused to get involved. Governor Schwarzenegger filed a brief that did not dispute the unconstitutionality of Proposition 8, and called for swift action by the courts. Attorney-General Jerry Brown has publicly acknowledged that Proposition 8 is unconstitutional.

Last week, another defendant, Bill Tam, one of Proposition 8's original sponsors, asked the judge to drop him from the case, saying he feared for his family's safety. During the 2008 campaign, he claimed same-sex marriage would cause children to become homosexual. The state ballot measure passed with 52 per cent of the vote, nullifying a California Supreme Court decision earlier that year legalizing gay marriage.

Proposition 8, which changed California's constitution to make gay marriage illegal, has since been upheld by the California Supreme Court.

The latest court battle has brought out passionate advocates on both sides of the issue. It is expected to hear testimony about the history of discrimination against gays, the fundamental meaning of marriage, and the ability of same-sex parents to raise children.

It is the first American lawsuit involving same-sex marriage that will actually call witnesses to the stand.

On Monday, both sides outlined their cases to District Court Chief Judge Vaughn Walker, as roughly 100 protesters, mostly supporters of gay marriage, assembled outside the court.

Gay rights lawyers called the ban discriminatory, and compared it to laws that once prevented interracial marriage. Lawyers defending the ban cited thousands of years of tradition and claimed that a state, without malice, can be cautious about changing the institution of marriage.

At one point Judge Walker stopped Mr. Olson to ask if the state could simply get out of the marriage business altogether to avoid the question of discrimination, leaving it to the people to decide.

“We wouldn't need a Constitution if we left everything to the political process,” replied Mr. Olson.

Mr. Cooper argued that the ban was passed legally in a state that gives broad support to gays.

“This speaks not ill will or animosity towards gays and lesbians, but a special regard for this venerable institution,” he said.

The United States remains deeply divided over same-sex marriage. It is legal in only five states and the District of Columbia.

At the centre of the current fight are two California couples, one lesbian, one homosexual.

Kris Perry and Sandy Stier have been together for nine years and are the parents of four boys. Paul Katami and Jeff Zarrillo have been together for eight years.

“We hear a lot of, ‘What's the big deal?' ” Mr. Katami said Monday. “The big deal is it is creating a separate category for us.”

All four are expected to testify in the case, which is expected to last for three weeks.

With reports from news services

http://www.theglobeandmail.com/news/...rticle1427694/

Two homosexual married couples (one lesbian, one gay) are challenging the constitutionality of the voter-decided Prop 8 resolution in a federal court.

Those on both sides of the issue believe this will be a historic battle.

If this goes through to the U.S. Supreme Court as expected, it could possibly pave the way to the validity of gay marriage across the country.

I think this is a step in the right direction, and I sincerely hope it gets a Supreme Court decision in favour of Prop 8's unconstitutionality. At the very least, Prop 8 is a civil rights violation.

What do you think?