Thoughts on the Proposition 8 Trial in California


January 12, 2010 by D Stack

Currently in California, a trial has begun in federal court to overturn California’s Proposition 8 – a voter-approved measure from 2008 which overturned an earlier the California Supreme Court’s earlier ruling which found a constitutional guarantee to same-sex marriage.

The plaintiffs, seeking to overturn Proposition 8 so they can be married, are represented by an unlikely pair – Ted Olson and David Boies – the two attorneys who represented George W. Bush and Al Gore in the 2000 Supreme Court Case Bush v. Gore which decided the controversial Florida recount in Bush’s favor, granting Bush the presidency. In this week’s Newsweek, Ted Olson, who represented Bush (and later served as his solicitor-general), explains why he took this case in The Conservative Case For Gay Marriage. He makes an extremely eloquent and persuasive case for recognizing that marriage includes an inherent right for same-sex couples to marry.

I’m very pleased to see such an unlikely pairing. Politics in the United States has seemed to be poisonous for twenty years, where one’s political affiliation determined one’s views on a host of issues. In favor of gun control? Congratulations, you also support keeping abortion legal. Like lower taxes? You are also against same-sex marriage. Just the fact that these two are working together on the case (and profess to friendship outside the courtroom, despite most typically being rivals within it) reminds us both that people of different political affiliations can still work together for causes they both believe in and that we can stake out our own ground despite party affiliation. Consider, for example, that Dick Cheney has come out stronger in support of same-sex marriage than Barack Obama…

Following the trial, it seems the plaintiffs are making a compelling case. They have asserted that there is no evidence that same-sex marriage does any harm to heterosexual-marriage, something the defendants were unable to contest. They point to the fact that traditional marriage once prohibited multiracial marriages. And they point to the rights being denied to same-sex couples by forbidding them the right to marry who they choose to.

There seems to be a consensus that this trial is destined to the US Supreme Court. There is also something of a consensus that the Supreme Court will be a more receptive audience to the defense of Proposition 8 than the Federal Court in California. That is probably true, but it’s not something I would take for granted. Scalia and Thomas would seem unlikely to vote in favor of same-sex marriage, but Roberts and Alito are far less known as far as their thoughts on the issue. During his confirmation hearings, the Bush White House attempted to distance Roberts from a pro bono case he had once taken on in support of gay rights (overturning a state law which made it legal to discriminate against gays). Similarly, the first LGBT case which appeared before the Roberts court was a case involving the right of transgendered individuals to sue their employers for discrimination. The court refused to hear the case, by default granting victory to a transgendered police officer.

A large part of the objection to allowing same-sex marriage is coming from religious groups. While it is every religion’s right to discriminate within their own religion, I would think the First Amendment makes it clear that religious viewpoints do not have the force of law. I also find it regrettable the impact my own religion, the Catholic Church, has had on the same-sex marriage votes in California and Maine. I find myself forced to speak out on this matter – between the research I have done, my own personal experiences with same-sex couples and parents, and the demands of my own conscience I am unable to remain silent.

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