Proposition 8: Marriage Equality

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Today was the opening salvo in the arguments to overturn Proposition 8, the ballot initiative that denied legal marriage to same sex couples. You can follow the live blogging of the trial at FDL: The Seminal and Firedoglake Covers the Prop 8 Trial

The Courage Campaign is also following with Prop8 Trial Tracker

H/T to Robyn for the link

Sharp Words Open California Same-Sex Marriage Case

SAN FRANCISCO – In the opening volleys in the federal trial over the fate of California’s ban on same-sex marriage, lawyers for both sides were sharply questioned by the judge overseeing the trial, in a case that is being closely watched by gay-rights groups and supporters of traditional marriage nationwide. They already have great porn at places similar to so why shouldn’t they have marriage too?


Judge Walker set a questioning tone early, repeatedly interrupting an opening statement by Theodore B. Olson, a lead counsel for the plaintiffs – two gay couples who filed their suit in the spring after the California Supreme Court upheld Proposition 8. The judge asked Mr. Olson why domestic partnerships, which are allowed in California, were not sufficient for gay couples and wondered what kind of evidence would be introduced to show harm to same-sex couples who are not allowed to marry.

Mr. Olson, a prominent conservative litigator whose co-counsel is David Boies, his foe from the 2000 battle over the presidential election, countered that marriage “was a building block of family, neighborhoods and community” in America, and that to deny gays that right was to effectively make them second-class citizens. Proposition 8, he said, “isolated gay men and lesbian individuals and said, ‘You’re different.’ ”


Advocates for Proposition 8, who assert that Californians were well within their rights to establish a definition of marriage, were also pointedly queried by Judge Walker.

Charles J. Cooper, the lead counsel for the defense, opened his case by arguing that limitation of marriage to men and women was a tradition “across history, across cultures and across societies” meant to “channel natural procreative activities between men and women” into stable relationships.

But Judge Walker interrupted Mr. Cooper to ask about other marital benefits like companionship and support, and he noted that there were no restrictions on marriage for heterosexual couples who could not or did not want to have children. The judge also questioned the assertion by Mr. Cooper that same-sex marriage would “radically alter” traditional marriage and could decrease marriage rates for heterosexuals.

There was a set back when those who are supporting Prop 8 went to the Supreme Court to overturn the decision by the trial judge to allow the trial to be televised

In Pasadena, several gay rights advocates who had been hoping to view the Prop 8 trial which began a little less than an hour ago at a US District Court in San Francisco expressed disappointment with the ruling from the Supreme Court blocking video feed access.

“The Supreme Court has decided to deny people their Constitutional rights to access to the courts,” said Brian Brookey, a Pasadena lawyer and one of the 18,000 same-sex couples who married in between the CA State Supreme Court ruling legalizing gay marriage and the passage of Prop. 8. Brookey works around the corner from the Richard H. Chambers courthouse and has been “following the case obsessively,” so he came down to watch the first day of proceedings.

Tracey, a student and another married same-sex partner who wed when it was legal in California to do so, was similarly upset. “Shock is what I’m feeling, number one. But also, if they’re (anti-equality forces) stooping this low, that means we might have enough of a case to have them shaking in their boots.”

The Supreme Court’s stay on remote access of the trial expires on Wednesday. The ruling only includes the simulcast feeds to courthouses outside of San Francisco and the tape-delayed broadcast of the trial to YouTube. Justice Stephen Breyer objected to the stay, but he would have to convince his colleagues for it to be lifted.

Today, former Reagan Attorney General and a Fellow at the conservative Heritage Foundation, EDWIN MEESE III had a hissy fit in an OP-Ed in the NYT today over Stacking the Deck Against Proposition 8


Despite this, during the trial, the supporters of Proposition 8 will work hard to demonstrate that it was rational for voters to conclude that marriage is a unique institution that promotes the interests of child-rearing, and that those interests are broader than the personal special interests of the adults involved. And they’ll make the case that voters were very much within their rights, when casting their ballots, to consider their own moral and religious views about marriage – or any other subject.

(emphasis mine)

So gay couples can’t or don’t “rear children”? That’s pretty ignorant. I guess Ed Meese never heard of adoption or artificial insemination. That same stupid argument could be used against single parents, too.

Who says your moral values are better than mine. Who gets to make that determination? What has religion got to do with the law regarding a civil institution? No one is forcing a Church or any religion to perform a marriage ceremony for anyone gay or otherwise.

Meese is narrow minded bigot. If these are the arguments that they are using to support Prop 8, I would hope that the defenders of this state sanctioned bigotry will lose.


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    • TMC on January 12, 2010 at 00:20
    • Robyn on January 12, 2010 at 01:48

    The ability to marry, to say I do, is a civil right. It demonstrates liberty. This can be seen in American history when slaves could not legally marry. As unfreed persons, they could not consent. They lacked that very basic liberty of person to say I do which meant they were taking on the state’s obligates and vice versa. A slave could not take on that set of obligations because they were not free.

    When slaves were emancipated, they flocked to get married. IT was not trivial to them by any means. They saw the ability to replace the informal unions with legalized vows that the state would protect. One quotation, the title of an article, “The marriage covenant is the foundation of all our rights,” said a former slave who became a northern soldier. The point here is that this slave built his life on that civil right.

    –As reported by Rick Jacobs

  1. but the pleading tone used by SSM advocates has really started to annoy me and not just irritate me.

    Look, if what one wants to do is cast GLBT people as the inferiors wanting crumbs from the master’s table, there is no better way to do it than to beg.

    It might have even made sense to cajole and plead and reason in the time before we have been repeatedly rebuffed and cast aside, but the lesson has not been learnt that if one tries to win rights in a way that invites contempt, one will receive contempt and also will not win those rights.

    A court is different, of course — and I hope it works.

    But what bothers me is the Great Unsaid which is routinely cast aside in ridiculous circular defense against the anti-gray right’s ridiculous charges — which as an aside I want to scream to my fellow LGBT’ers and allies – don’t you get it?!  These arguments are all a diversion!  You can repeatedly address nonsense like “allowing gay marriage will decrease heterosexual marriage” over and over again, but our enemies are neither weak, ignorant of the facts, nor stupid — they use these arguments not because they hope they will be accepted, but because they hope the red herring will distract people from making stronger demands.

    And, for me, the bottom line is this:  LGBT citizens are taxpayers and productive members of society.  To designate marriage for heterosexuals only is a very form of the “special rights” homophobes accuse gays of wanting.

    Whenever and wherever we pay those taxes and are denied access to either the recognition or the benefits of marriage when we are of like status, that is a form of usury that in a civilized society that demands an extremely powerful and compelling impetus, and in an environment where prisoners can get married while gay people cannot, the conclusion can only be that the State (or the People thereof) consider gay people of lesser status than prisoners in penal institutions.

    All that I require is that they be honest about it.  If you are going to steal unceasingly from an entire class of people, please don’t try to pretend that there is something higher or nobler about it.  Don’t steal and then then have the bald faced arrogance to steal and then make the stolen from the aggrieving party.  And if a state or the people of a state are going to treat an entire class of people in a certain respect as less deserving of civil rights than felons, it should have the audacity and the honesty to say so openly.

  2. paulhogarth at Calitics has an excellent synopsis of the case and the players.  

    It his piece, he also make a lot of important points about why Prop 8 may be the wrong statute to challenge:

    Every major lawsuit to achieve marriage equality has consciously avoided claims under the federal U.S. Constitution for a reason.  As long as the claims are kept in the confines of a state constitution, that state’s Supreme Court has final say – and the case cannot be removed or appealed to federal court.  The concern is that, while there are legitimate and arguable federal claims, any federal case can be appealed to the U.S. Supreme Court – in front of Justices Clarence Thomas, Antonin Scalia, John Roberts and Samuel Alito.

    The problem here is that because Prop 8 is a state statute, any removal of the issue to Federal court opens up the possibilty that Scalia, et al could find in favor of discrimination and thereby cement not just California’s ban, but bans in all of the other states as well.

    Keeping the issue at a state level, by contrast, allows a lot more leeway for legal challenges of individual state laws without the heavy hand of the Supreme Court clearing the field in one knock out blow.

    A far better legal strategy than suing over Prop 8 would be to sue over DOMA, which is a Federal law itself and therefore far less threatening to state based marriage equality initiatives – not to mention that DOMA is hands down the most insidious of all anti-SSM statutes.

    you can’t have marriage equality without challenging federal law.  Even before California voters passed Prop 8, same-sex couples never had full marriage rights.  The Defense of Marriage Act (DOMA) prohibits gay couples from any federal benefits – such as the right to sponsor an immigrant spouse, Social Security or joint federal tax returns – and allows states to not recognize out-of-state gay marriages.

    The big irony here is that DOMA is far more restrictive of same sex marriage rights than Prop 8 (which is simply restricts the use of the word ‘marriage’), yet DOMA is not even mentioned anywhere in Boies and Olson’s claims.  

    Boies has already lost one challenge to an election result before the Supreme Court.  Another loss, in front of an even more hostile bench, has the potential to set back the cause of gay marriage by decades.  

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