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.

Take Action: Sign this Care2 Petition to urge for the overturning of DOMA.

Photo used under the Creative Commons Attribution License, with thanks to ProComKelly.


roberto c.
roberto m.7 years ago

People get real the constitution says we can all get married its a cosntitutional right we are violating it and we do not do that we can't change what our constitution says im SICK of all this religious people sticking their dumb religion into this issue which has absolutly nothing to do with this i bet they haven't heard of separation of chutch and state this is about civil rights my friends that are being taken away from people and WE DO NOT do that in california love is love and it can over come anithing this should be repeal because its uneseptable and discriminatory im sick and tire and disgusted of this when is it going to be that time when we can all live in piece not in descrimination we should see each other as brothers and sisters come on folks lets END THIS HATE

MJ Mathisen
Past Member 7 years ago

FYI Carol,

' issue of enforcing our Constitution's guarantee of equal protection and due process to all citizens.',_new_bedfellows:_the_olson_boies_challenge_to_prop._8/

Carol H.
Past Member 7 years ago

I would love to see the part of the Constition that it says where gays can marry.

Everybody has a right to be happy but that is not part of Constition.

If gay people want to enter into instition more power to them but it ain't cracked to be what people say but go for it and be happy.

Travis A.
Travis A.7 years ago

you said it Elizabeth Irving-Waddleto "Think about it: we are ALL equal citizens under the law" that should be the end of this disagreement!!!!!

Sarah D.
Sarah D.7 years ago

Mark G - "But the voters passed Prop 8 and that should not be over-turned by a court."

People can vote again. America was built by people who fought for their rights and to keep their rights. As long as Prop 8 stands, those who oppose it will keep fighting to overturn it.

Mark G - "marriage is not even mentioned in the constitution."

The Constitution doesn't have to mention it. Separate rights are not equal rights.

Barbara Chally
Barbara Chally7 years ago

Mark, even when those who voted just to have their way were those least affected by their action? It's been a long time since so few were able to override the wishes of so many who were to be the ones hurt out of nothing but malice and illwill, and with nothing whatsoever to gain personally. Their action was nothing but a show of might through money and misrepresentation of motive.

Mark G.
Mark G.7 years ago

Personally I don't think marriage should be the government's business, and marriage is not even mentioned in the constitution.
But the voters passed Prop 8 and that should not be over-turned by a court.

Deborah Weinischke
Deborah H.7 years ago

The judgemental, misguided, brain-washed hypocrits that oppose same-sex marriage are missing the vital point that LOVE and committment are the essential aspects of a relationship, not plumbing. Consider all the heterosexuals making a mockery of their marriage vows with their cheating, fighting, divorces, remarriages.

Barbara Chally
Barbara Chally7 years ago

Oh joyous day!

After hours of back and forth between members, the Evangelical Lutheran Church in America decided Friday evening (August 21, 2009) to accept noncelibate clergy members and lay leaders who are in "lifelong" and "monogamous" same-sex relationships.

Some members argued prior to the vote that the change would fly in the face of religious teachings.

"Brothers and sisters, I ask you, before you dig yourselves deeper into this hole, if you are so absolutely certain that these behaviors are not sinful that you are willing to place yourselves and this church at the spiritual risk that comes from encouraging sin," said the Rev. Steven Frock of the Western Iowa Synod.

Among those on the other side was Alan Wold of the Northern Illinois Synod. "If according to some I am going to be in err(or) for supporting this... Let me err on the side of mercy, grace, justice, and love of neighbor. Let me err on the side of gospel, which makes all things new."

So much for the fundies talk about apostate churches!

Sarah D.
Sarah D.7 years ago

Meant to say the "King James" version of the bible.