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ACLU and allies take Proposition 8 back to court
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Angry protester in Sacramento earlier this year
In 1996 the U.S. Supreme Court overturned an amendment to the Colorado Constitution that outlawed discrimination protections for gay people. Same-sex couples were banned from entering into civil unions or domestic partnerships anywhere in the United States.
Attorneys for two unmarried same-sex couples seek to persuade a federal judge to strike down California's ban on gay marriages, using that Colorado decision as a basis for their arguments.
In the Colorado case, Romer v. Evans, the Supreme Court majority held that voters' dislike of the laws that several cities had approved to shield gays from bias and even the voters’ dislike of gays in general, motivated the state amendment. Such "animus," it said, was incompatible with the fourteenth amendment of the U.S. Constitution that requires the government treat its citizens equally, absent a compelling reason to do otherwise.
The attorneys behind the challenge to California's Proposition 8 argue that by stripping lesbians and gays of the right to wed, the voter-approved ban runs up against America's founding structure in the same way.
"Romer is a strikingly similar situation to what we have here. You had a ballot initiative, a majority vote of the people, taking away a right," said Theodore J. Boutrous Jr., a member of the legal team led by former U.S. Solicitor General Theodore Olson and veteran trial lawyer David Boies. "And there was no justification or rationale other than disapproval by that majority of that group."
Plaintiffs argue that by denying same-sex couples the right to marry, Proposition 8 violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and the State Attorney General agrees. In the brief Strauss v Horton, the California Attorney General argued, that although prop 8 did not constitute a revision of the California constitution, it did deprive gays and Lesbians of basic liberty guaranteed by the California constitution. The California Supreme Court disagreed and upheld Proposition 8.
The case was filed on behalf of two same sex couples, Kristin Perry and Sandra Stier and Paul Katami and Jeff Zarrillo. It argues that Proposition 8 violates the federal constitutional rights of gay and lesbian individuals by limiting civil marriage to different-sex couples and relegating same-sex couples to the separate-but-unequal institution of domestic partnership.
They filed a complaint and motion for a preliminary injunction to place Prop. 8 on hold and allow same-sex marriages to resume until the case is resolved. The judge denied that motion.
Attorneys for the couples will be arguing in the court that marriage between same-sex individuals is a human-rights issue that transcends the bounds of ideology and party.
U.S. District Chief Judge Vaughn R. Walker on Tuesday issued a tentative order to fast-track the case in his San Francisco court.
Among the questions he said he wants covered at trial are whether sexual orientation is unchangeable, if permitting same-sex marriage “destabilizes” traditional unions and whether Proposition 8’s ballot history demonstrates the measure had “discriminatory intent.”
In the brief filed by the plaintiffs, attorneys claim Proposition 8 singled out same-sex couples for discriminatory treatment under California law.
The California Supreme Court’s May 2008 decision regarding the constitutionality under state law of California’s statutory ban on the marriage of same-sex couples held that all individuals and couples are entitled to the fundamental right to marry, without regard to their sexual orientation.
Under the state constitutional guarantees of privacy, due process, and equal protection, the Court recognized that same-sex couples are entitled to “the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage”. This decision still holds; however, proposition 8 amended the California constitution to say that even though gays have a constitutional right to marry, the people of California have decided to violate that right because they are uncomfortable with same sex unions being called “marriage”.
The ramifications from this case are far reaching. The court could find that gays and lesbians are not a suspect class, because they are choosing a lifestyle that they can change at any time. Or, the court could validate the belief that the passage of prop 8 was based purely on bias against gays and lesbians. The LGBT community will be watching this case carefully
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