Proposition 8 Court Challenge: Too Risky?

The measure banning gay marriage in California goes to court in San Francisco today

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The fight for gay-marriage rights took a major blow in 2008 when Californians passed Proposition 8, a ballot initiative banning gay marriage. Prop 8's passage marked the beginning of a difficult year for gay marriage, which saw several high-profile defeats. But could the courts repeal the measure? Today, a case challenging the legality of Prop 8, Perry v. Schwarzenegger, begins in U.S. district court in San Francisco. Complicating the issue is the nature of Prop 8's origin, as the measure was passed explicitly to overturn the legalization of gay marriage by the California Supreme Court. Is today's case just another volley or a real step towards a definitive ruling?

  • Is It Too Soon? That's the question the New Yorker's Margaret Talbot asks in a lengthy and detailed cover story. Talbot suggests there could be lower-hanging fruit for gay rights. She writes that "a loss [...] could be a major setback to the movement for marriage equality."
Perry v. Schwarzenegger is not the only federal lawsuit for gay marriage. Another one, Gill v. Office of Personnel Management, is thought by some scholars to stand a better chance of success, though it has been overshadowed by Olson and Boies's effort. [...] Gill is not the damn-the-torpedoes case that Perry is. It challenges a section of the Defense Against Marriage Act which prevents same-sex couples from receiving the many benefits accorded to married couples at the federal level--from joint tax filing to health insurance for federal employees' families--even though in the state of Massachusetts those couples are lawfully married. Gill insists not on the constitutionality of same-sex marriage but on the unconstitutionality of denying federal benefits to a class of citizens whose marriages are recognized by the state.
  • Private Religious Views On Trial? Reagen-era Attorney General Edwin Meese warns in the New York Times, "No doubt, the plaintiffs will aggressively exploit this opportunity to assert that the sponsors exhibited bigotry toward homosexuals, or that religious views motivated the adoption of Proposition 8. They'll argue that prohibiting gay marriage is akin to racial discrimination." He expresses concern over the judge's decision to explore the records and beliefs of those who pushed Prop 8. He writes of the decision to allow cameras, "This will expose supporters of Proposition 8 who appear in the courtroom to the type of vandalism, harassment and bullying attacks already used by some of those who oppose the proposition."
  • In Support of Public Broadcast The Los Angeles Times approves of the court's decision to open the case to television cameras and Internet broadcast. "Witnesses at this trial will include economists, psychologists and activists on both sides of the Proposition 8 campaign. We've expressed concern in the past that some of the testimony might degenerate into another nasty skirmish in the culture wars, ventilating myths such as the discredited idea that sexual orientation is a choice. But if the judge is to hear such testimony -- along with, we hope, more pertinent arguments -- so should members of the public, and not just those with physical access to the courtroom."
  • The Ruling Isn't The Important Part's Dan Levine explains that the case will likely be appealed, so this is all about gathering evidence and testimony. "What will matter more are his [Chief Judge Vaughn Walker's] decisions and actions along the way -- the factual findings, evidentiary umpiring and the overall tone and tenor of the proceedings," he writes. "Prop 8 supporters are clearly worried about the record he'll create, and the findings of fact that will flow from it. Those will be formidable instruments if the case ultimately reaches the U.S. Supreme Court."
This article is from the archive of our partner The Wire.