Gay Marriage – A Constitutional Right? Prop. 8 Trial Date Set
January 11, 2010, is the start date that U.S. District Judge Vaughn Walker has chosen for a federal lawsuit that challenges California’s gay marriage ban Proposition 8, saying that the case in question was “a matter of huge importance for the state” and recognizing that a case dealing with gay marriage had “broader interests” that went beyond state legislation alone.
On Wednesday, Judge Vaughn also barred a number of advocacy groups from joining the lawsuit, as well as the anti-gay group Campaign for California Families.
Representation for the plaintiffs, David Boies and Theodore Olson, had asked that those parties be excluded to speed up the case. Judge Vaughn agreed with this position, saying that the groups (both pro and anti gay marriage) brought no new testimony and therefore were not needed.
However, Judge Vaughn did allow the San Francisco City Attorney’s Office to join the lawsuit on the side of the plaintiffs because they brought with them a legitimate element to the case that was not currently represented: to assess the monetary impact of withholding same-sex marriage on state governments.
The case, filed jointly by a lesbian couple from Berkeley, Kris Perry and Sandy Stier, and a gay couple from Burbank, Paul Katami and Jeff Zarrillo, asserts that Proposition 8 is constitutionally unsound because gay marriage is a fundamental constitutional right that Proposition 8, in defining marriage as being between only a man and a woman, violates. Olsen and Boies have both expressed their confidence that the lawsuit will progress to being heard by the U.S. Supreme Court.
A federal challenge to Proposition 8 risks a lot, and if the conservative Supreme Court were to find in favor of upholding Proposition 8, the damage to the gay rights movement could be substantial (if there is a legitimate interest substantiated by the Supreme Court, not only gay marriage but gay adoption and other such rights could be set back). Click here to read a fascinating overview of the case.
Still, there is an interesting point to note in this case. This week, a follow-up Defense of Marriage Act (DOMA) brief was issued by the Department of Justice in which the Obama Administration, distancing themselves from an original brief which defended DOMA against a current lawsuit to the point of being offensive, categorically stated that DOMA is discriminatory, has little governmental interest and will support a repeal effort.
Why is this interesting? Well, the Proposition 8 federal defense team are arguing that it is within California State’s interests to limit marriage to couples of the opposite sex, and that Proposition 8 serves the state in this regard.
The legality of how Proposition 8 was enacted seems sound: it was voted into law by the public by a 52% majority on the November 2008 ballot, and was upheld by the California Supreme Court. But to argue a legitimate interest for California when the Obama Administration is no longer backing a federal gay marriage ban as a sound policy seems to undercut this argument somewhat.
At any length the question remains, can gay marriage be argued to be a constitutional right? Have your say in the poll below.