Calif. Prop 8: Homosexualists Fear Supreme Court Decision

Two high-profile lawyers, one liberal, one conservative, have teamed up to overturn the will of the California voters, and fabricate same-sex 'marriage' as a civil right, but many homosexual advocates believe that the inevitable U.S. Supreme Court decision will not be in their favor.

UPDATE 8/20/09: Judge sets January 11, 2010 date for trial

UPDATE 7/20/09: Why Ted Olson and I are working to overturn California's Proposition 8 - by David Boies

-- From "Judge clarifies purpose at first federal Proposition 8 hearing" by Maura Dolan, Los Angeles Times 7/3/09

In the first hearing on a federal challenge to Proposition 8, a judge reminded lawyers Thursday that the constitutionality of the anti-gay marriage measure would be determined by higher courts and that his job was to give them as many facts and findings as possible.

U.S. District Judge Vaughn R. Walker, appearing before a packed courtroom, also declined to suspend Proposition 8 before trial, noting that such a move would create too much uncertainty for the state and same-sex couples who would marry.

"This case is only touching down in this court," Walker said. "It will have life after this court, and what happens here in many ways is only a prelude to what is going to happen later.

"Our job at this point," he said, "is to make a record."

Walker's statements Thursday mirrored a tentative ruling he handed down Tuesday. That ruling heartened gay rights activists, who said Walker made it clear he appreciated the gravity of the challenge and their arguments.

Neither side objected to Walker's refusal to issue a preliminary injunction.

Theodore B. Olson, representing two same-sex couples who wish to marry, said he understood Walker's concerns and respected the judge's "wisdom."

Olson repeatedly noted that Atty. Gen. Jerry Brown, the state's top law enforcement officer, believes that the November ballot measure violates the U.S. Constitution.

With neither Brown nor Gov. Arnold Schwarzenegger defending Proposition 8's constitutionality, Walker permitted backers of the measure to argue on its behalf.

Walker, appointed to the bench by President George H.W. Bush, is viewed as independent. The next hearing in the case is scheduled Aug. 19.

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From "Federal marriage lawsuit premature, gay groups say" Associated Press 5/27/09

A coalition of gay rights groups said Wednesday that a federal same-sex marriage lawsuit brought by two high-profile lawyers is premature and they'd rather work through state legislatures and voters to win wedding rights.

A day after the California Supreme Court upheld a voter-approved ban on gay marriage, the American Civil Liberties Union, Lambda Legal and other national organizations issued a statement saying they think the U.S. Supreme Court is not ready to rule in their favor on the issue.

On Tuesday, lawyers Theodore B. Olson and David Boies, who represented opposing sides in the 2000 Bush v. Gore election challenge, announced they had filed a lawsuit in federal court on behalf of two gay men and two gay women.

Their case argues that California's voter-enacted ban on same-sex marriage, known as Proposition 8, violates the U.S. Constitution's guarantee of equal protection and due process.

Olson said he hopes the suit, which seeks a preliminary injunction against the California measure until the case is resolved, will wind up before the U.S. Supreme Court.

A favorable ruling there would allow gays and lesbians to get married in every state, just as the court's 1967 ruling in a Virginia case outlawed prohibitions on interracial marriage.

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From "Former Bush Solicitor General Ted Olson Files Suit Claiming Same-Sex Marriage is Constitutional Right" by Monica Gabriel, CNSNews.com 6/24/09

Olson and Boies say that Prop. 8 violates the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution, and that homosexuals have a constitutional right to marry.

Olson is a member of the Federalist Society, a group of conservative and libertarian attorneys who advocate an “originalist” interpretation of the Constitution. This means that the words of the Constitution should be considered to mean the same thing now that they meant to the people who wrote them.

For an "originalist" interpretation of the Constitution to conclude that the 14th Amendment protects a right to same-sex marriage, it would need to be demonstrated that the people who wrote the 14th Amendment in the late 1860s understood it to mean that.

The lawsuit requests that the court prohibit the enforcement of Prop. 8 and any other related California statutes. It also cites other cases, such as Loving v. Virginia, Romer v. Evans, and Lawrence v. Texas as precedents to support the idea that Prop. 8 is a violation of the rights of homosexual men and women.

Boies and Olson are representing the plaintiffs Kristin Perry, Sandra Stier, Paul Katami, and Jeffrey Zarrillo. Perry and Stier have been in a relationship for nine years and Katami and Zarrillo have been in a relationship for eight years. The plaintiffs are arguing for the right to a state-sanctioned marriage in California.

Olson and Boies were retained by the group American Foundation for Equal Rights, a liberal, pro-homosexual group, to file their lawsuit. In their suit, the lawyers state that the “defendants” – Gov. Arnold Schwarzenegger and other state officials -- “cannot meet their burden of demonstrating that they have compelling reason for consigning gay and lesbian individuals to the separate-but-inherently-unequal institution of domestic partnership.”

The plaintiffs are in a “committed relationship” and want to express their love for each other “by getting married and obtaining official sanction for their family from the State,” reads the lawsuit. “But Prop. 8 denies them that right in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.”

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