Gay-Rights Activists Cautiously Optimistic About Prop. 8 Challenge

They still plan to put a measure on the ballot in California in 2012

There is palpable optimism among gay-rights groups that the latest Prop. 8 court challenge, brought by the legal odd couple of Ted Olson and David Boies, will mean an end to California's gay marriage ban, and in the best of cases, to all state-level marriage bans across the country.

But activists don't think it's a sure thing by any means, and they're not changing any of their plans because of it.

"You never really know with these things, and certainly we don't have a crystal ball, but the facts are on our side, and the law is on our side, and we're hopeful that the courts would see [our] side," said Micheal Cole, spokesman for the Human Rights Campaign, the long-standing DC-based juggernaut of gay-rights activism.

45 states currently have marriage bans, and there is a possibility that the challenge to California's Prop. 8 in federal court, with final arguments having been presented in district court and Judge Vaughn Walker deliberating on his decision, will do away with all of them. It will depend on whether the case makes it to the Supreme Court, and whether a broad ruling is issued.

The challenge rests in an invocation of the Constitution's equal-protection clause, which prevents laws from being applied discriminately. A ruling could validate or do away with Prop. 8 only, based on specifics in California, or it could validate or end all marriage bans if broad questions are asked by judges and justices, if broad arguments are made (Olson, for his part, is doing so), and if a broad opinion is issued.

There are many steps in the judicial process, so it's difficult to tell how long it will take. A two to three year timeline, from start to finish, is anticipated by the American Foundation for Equal Rights, the group that's running the court challenge on behalf of the plaintiffs, Burbank gay couple Paul Katami and Jeff Zarillo and Berkeley lesbian couple Kris Perry and Sandy Stier.

In light of that timeframe and uncertainty over how the case will turn out, gay-rights activists say the court case is not preempting their next goal for California: a ballot initiative in 2012.

After Prop. 8 passed in 2008, reinstating a gay-marriage ban in the Golden State, gay-rights activists were anxious to put a measure on the ballot in 2010 to legalize gay marriage again. A new class of upstart activists arose in reaction to Prop. 8, and they wanted to do something about it as soon as possible. More careful voices suggested waiting until 2012: a high-profile, statewide ballot campaign in California costs millions of dollars--due to the state's size and expensive radio and TV media markets (LA is one of the priciest in the country; San Francisco isn't cheap, either), campaigns cost more in California than in any other state--and in 2012, though some of the anti-Prop. 8 backlash will have simmered down, a more friendly electorate is likely to turn out for the presidential race. More young voters, liberal voters, marginal voters, more voters period--a better chance for gay marriage to win.

No ballot initiative has qualified for 2010, as some activists pressing that plan have backed off. But it appears there is no stopping a ballot initiative in 2012, no matter how close the trial is to being completed.

"If this case is decided on the strength of the arguments, our side wins, hands-down, all the way up to the US Supreme Court. However, we know that on our issues, a win can be tenuous and the legal process can take years," Marc Solomon, marriage director for Equality California, one of the state's most prominent membership groups for gay rights, wrote over e-mail. "So we are working extremely hard right now to change hearts and minds in the direction of fairness and equality to gain solid majority support for the freedom to marry in preparation for a 2012 ballot campaign."

Solomon's group has been in heavy contact with volunteers and canvassers in the last year, gearing up for the big fight in 2011 and 2012 that will focus on door-knocking, making inroads with communities and constituency groups, and probably a significant ad campaign, coordinated with the gamut of California gay-rights groups and executed with the advice (and money) of larger national groups like the Human Rights Campaign. By the time that campaign needs to start, the trial probably won't be close to completion.

The timeline and impact of the trial depend on a few factors. After Judge Walker issues his ruling, the case will be appealed (regardless of that ruling) to the Ninth Circuit Court of Appeals. That process could happen faster than is typical, since the plaintiffs have filed an injunction asking the the enforcement of Prop. 8 to be halted immediately.

The Ninth Circuit could also determine whether the case affects all marriage bans, or just California's. If the Ninth Circuit strikes down Prop. 8 based on unique circumstances in California, the Supreme Court may not be interested in hearing it, according to Jennifer Pizer, lead counsel for gay-rights legal group Lambda Legal. If the Ninth Circuit issues a broad ruling, the Supreme Court's interest may go up correspondingly.

If the Supreme Court does hear the case, gay-rights supporters like Olson's chances arguing in front of the justices.

"The arguments that Ted Olson is making are not so different from the arguments that have been made in these cases over the years, and yet it has a different flavor when Ted Olson makes the argument," Pizer said. "The argument is not different, but the messenger is different, and I think more people, including more judges, may be able to hear the message and have it resonate when it's spoken by a self-avowed conservative."