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January 29, 2010
Church links, TV ads mark Proposition 8 trial
San Francisco--The federal lawsuit challenging Proposition 8, the state constitutional amendment that halted same-sex marriages in California, began on January 11, playing out like Law and Order: Strange Bedfellows and Obscure Points of Law Unit.
Regardless of the trial’s outcome, the case is likely headed for the Supreme Court, whose ruling could strike similar amendments in 29 other states including Ohio--or uphold them.
Arguing the case for the pro-gay side, the plaintiffs are represented by the ultimate legal odd couple, Theodore Olson and David Boies. The two are best known for arguing against each other in the Bush v. Gore case on the Florida recount that decided the 2000 presidential election.
Despite Olson’s conservative credentials, he presented the opening arguments for striking Prop. 8 as unconstitutional, and also released an opinion piece in Newsweek magazine entitled “The Conservative Case for Gay Marriage: Why same-sex marriage is an American value.”
“How could a politically active, lifelong Republican, a veteran of the Ronald Reagan and George W. Bush administrations, challenge the ‘traditional’ definition of marriage and press for an ‘activist’ interpretation of the Constitution to create another ‘new’ constitutional right?” he posits, voicing the concerns of his fellow conservatives.
“Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage,” he notes. “This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership.”
His arguments in court seem equally compelling.
He and Boies have produced documents, challenged by the defendants, illustrating the involvement of religious organizations in the campaign.
One such piece, an internal Mormon Church document indicating that volunteers had been identified in virtually every zip code in California, was found among the Prop. 8 campaign’s papers.
The defendants also challenged the playing of campaign advertisements in court. Those objections met with mixed results.
The court allowed commercials to be played that were used during the campaign, but disallowed others that appeared after the campaign.
The plaintiffs were using the ads to show the court that Prop. 8 was motivated by antipathy towards LGBT people.
One of the main ads used was a histrionic piece about “protecting” children, which was later challenged by a psychologist who testified to the over 100 studies indicating that gays and lesbians make good parents, and pointing to the medical, mental health and children’s health professional organizations that have endorsed same-sex parents.
Nancy Cott, an historian at Harvard University, pointed out that bans on interracial marriage and the curtailing of wives’ rights were once claimed as being inseparable from the well-being of children.
Yale historian George Chauncey pointed out that unfounded animosity against LGBT people led to persecution, jail sentences and dismissal from employment.
There is another interesting fact underlying the case: despite its name as Perry v. Schwarzenegger, neither the state nor its attorney general are defending Prop. 8. That task has fallen to groups like ProtectMarriage.com, the organizers of the Prop. 8 campaign.
Schwarzenegger’s office has taken no position on the suit, and Attorney General Jerry Brown supports the plaintiffs.
Before the trial began, the court was going to allow the case to be broadcast over the internet to a select group of courthouses across the country and then be put up on YouTube.
The defendants, however, fought the decision, and in an emergency ruling, the Supreme Court barred the broadcasts.
Another issue that the court will have to decide is what level of scrutiny the issue merits. If they determine that LGBT people are a distinct class for the purposes of civil rights laws, it will be harder for the defendants to prove that denying the right to marriage is justifiable.
If the campaign was based around simple animosity or moral disapprobation, it is more difficult to justify curtailing the rights of LGBT citizens than if they can prove there is a specific societal benefit to barring same-sex marriage.
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