At issue is whether the California voter initiative that forbids the state from granting marriage licenses to gay and lesbian couples violated the Constitution's guarantee of equal protection of the laws.
[The trial begins] Monday with only private citizens speaking up for the voter-passed constitutional amendment – because state officials have refused to defend it.
Lawyers defending marriage have asked the U.S. Supreme Court to forbid video coverage for safety concerns of homosexualists' violent retribution.
UPDATE 2/7/10: Judge outed by San Fran. Chronicle as homosexual
UPDATE 1/13/10: Supreme Court cites 'irreparable harm' in broadcasting Prop. 8 trial
UPDATE 1/11/10: Supreme Court Blocks Video Coverage
UPDATE 1/10/10: New York Times - “It’s a trial of the majority of the American people.”
-- From "Gay Marriage Civil Rights Trial to Begin in San Francisco Federal Court Monday" by Ben Hallman, Am Law Litigation Daily 1/9/10
[T]he court challenge to California's Proposition 8 [features] the unlikely pairing of legal superstars (and Bush v. Gore opponents) Theodore Olson and David Boies, who are leading the charge to overturn the amendment.
First, it's important to note that California's attorney general, Jerry Brown, has taken the extraordinary step of refusing to defend the newly amended state constitution. Instead, Brown has taken the side of those who oppose the amendment banning gay marriage, arguing that the state cannot deprive a disfavored group of such a right even through a voter-approved amendment. California governor Arnold Schwarzenegger, also named in the suit, has joined the state AG in refusing to defend Prop 8 at trial.
With the state refusing to appear in court on behalf of the amendment, several anti-gay marriage interest groups have intervened in the case. The leading defender of Prop 8 is a group called Protect Marriage [and] also include lawyers from Washington, D.C.'s Cooper & Kirk, including Michael Kirk.
The Prop 8 defenders' argument is likely to be fairly simple: California voted to amend the state constitution explicitly to prohibit same-sex marriage. "That is the beginning and end of this case," they've previously said.
We asked about the opposition's argument. Shouldn't the will of the California voters be respected? Boies said absolutely not, at least in this instance. "The whole point of the Bill of Rights is to say that no majority, not a 52 percent majority, not a 99 percent majority, can deprive a minority of certain fundamental rights," he said.
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From "Appeal to ban video coverage of gay marriage trial" Assoicated Press posted at San Francisco Chronicle 1/9/10
Earlier this week Chief U.S. District Judge Vaughn Walker approved video coverage of the trial, allowing the proceedings to be streamed live at certain federal courthouses across the country. Video would also be uploaded to YouTube.
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From "Lawyers for Prop. 8 file high court appeal to ban YouTube video of trial" by David G. Savage, Los Angeles Times 1/9/10
They filed an emergency appeal with Justice Anthony M. Kennedy and argued that their client's right to a fair trial would be jeopardized if each day's proceedings were put on YouTube.
The trial "has the potential to become a media circus," wrote attorney Charles Cooper. "The record is already replete with evidence showing that any publicizing of support for Prop. 8 has inevitably led to harassment, economic reprisal, threats, and even physical violence. In this atmosphere, witnesses are understandably quite distressed at the prospect of their testimony being broadcast worldwide on YouTube."
Kennedy asked for a response from the state by noon on Sunday.
U.S. District Judge Vaughn Walker, who is conducting the trial beginning on Monday, agreed to limited TV coverage. The proceedings will be taped and made available to YouTube at the end of the day. He acted based on a recent rule change by the U.S. 9th Circuit Court of Appeals allowing TV coverage of some civil cases.
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From "Gay marriage foe wants out of Proposition 8 trial" Associated Press 1/8/10
Hak-Shing William Tam was one of the five official sponsors of Proposition 8 who formally "intervened" in a federal lawsuit challenging the voter-approved ban. The lawsuit officially names the state as the defendant, but Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have refused to defend the voter-approved ban.
On Friday, Tam told U.S. District Court Judge Vaughn Walker that he fears for his and his family's safety. In his court filing, Tam's lawyers say the trial will bring him unwanted publicity and expose him to retribution from gay marriage supporters.
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From "Elected officials bail on U.S. marriage law" by Drew Zahn © 2010 WorldNetDaily 1/9/10
Much is riding on the case of Perry vs. Schwarzenegger, for the lawsuit is petitioning a federal court to overturn not just a law, but a constitutional amendment passed by the people and affirmed by the state's Supreme Court. A victory for same-sex marriage advocates in the case could set a precedent for federal courts to overturn every law and amendment in the country currently protecting the traditional definition of marriage.
And yet, though Gov. Arnold Schwarzenegger and California Attorney General Jerry Brown are named as defendants in the suit, both have refused to act in defense of the amendment, leaving it up to the people of California to take a stand for their constitution on their own.
In June, the U.S. District Court for the Northern District of California verified Brown's abandonment of the case and therefore permitted quick-acting attorneys from the Alliance Defense Fund on behalf of ProtectMarriage.com, the group that sponsored the amendment campaign, to intervene in the case and take up defense where Brown refused.
At the time, ADF-allied attorney Andrew Pugno stated, "This ruling designating us to defend Proposition 8 reflects the unfortunate fact that, if left up to state officials, the will of the people would not be defended at all."
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