A Service of Rainbow Law

Injunction in Prop 8 Case Threatened, Could Reinstate Gay Marriage in California

Written by Jon Ponder Thursday, 22 October 2009 06:24

When we last tuned in, supporters of gay marriage in California had met defeat at every turn in their appeals in state courts to quash Proposition 8, the anti-gay constitutional amendment. They sought to overturn the amendment, which was passed via a ballot initiative last November, on the grounds that it violates the state constitution’s equal protection clause.

Their quest for remedy from the state ended in May when the California Supreme Court, which is controlled six-to-one by Republicans, ruled against overturning the amendment on the grounds that the state constitution does not prohibit voters from stripping rights from minority groups via ballot initiatives, even if they nullify the constitution’s equal protection clause.

There is no similar loophole for voiding the U.S. Constitution’s Equal Protection Clause, however, and now the matter is in the federal courts. Last week, there was a minor but favorable ruling for marriage advocates in the federal case:

U.S. District Judge Vaughn R. Walker, ruling after nearly two hours of argument in San Francisco, rejected arguments by Proposition 8 proponents that precedent and tradition clearly showed last November’s ballot measure was permissible under the U.S. Constitution.

Walker’s decision means the case will proceed to trial as scheduled in January unless appeals delay it.

The judge smacked down the assertion by anti-gay lawyers that the only valid purpose for marrying is to have children:

During the hearing, Charles Cooper, representing the Proposition 8 campaign, argued that marriage historically has been reserved for unions between a man and a woman because only opposite-sex couples can procreate “naturally.”

Walker, however, noted that not all married couples can procreate:

“Just last month,” Walker said, “I performed a wedding in which the groom was 95 and the bride was 83. I did not demand that they prove they would engage in procreation.”

The judge had previously ruled in favor of a motion by the pro-gay marriage side, led by uber-attorneys Ted Olson and David Boies, demanding that Prop 8 operatives disclose internal communications from the ballot initiative campaign last year — a move that could reveal that the Mormon Church and others concealed their support, fiscal and otherwise, for the Prop 8 campaign. The anti-gay side has appealed the ruling on First Amendment grounds.

Judge Walker suggested in the hearing last week that if the appeal delays the trial’s discovery phase, he might rule in favor of a preliminary injunction that would suspend Prop 8, thus theoretically allowing same-sex marriage to resume in California, at least until appeals related to the injunction were resolved:

Olson, representing same-sex couples in the case, told Walker that if the appeal delays the trial, he may ask for a preliminary injunction to suspend Proposition 8.

“If the case should hang up on a discovery issue,” Walker acknowledged, “that does change the equation.”

A ruling on a preliminary injunction could be appealed, and higher courts could resolve Proposition 8’s constitutionality without a trial. Walker said he thought it would be “unfortunate to short-circuit the process” that way.

So the Olson and Boies team appear to have the homophobes in something of a trap. They can either quickly turn over their campaign communiques — including possibly damning information about the leadership of their largest donors, the Mormons — or they drag their feet and delay the trial, which would prompt the judge to suspend California’s ban on gay marriage.

It’s unclear whether gay marriages could resume while the injunction was appealed, but, if so, thousands of new couples would join the 18,000 who were married in over the summer and fall last year before Prop 8 passed.

It’s the status of these legally married couples that is at the heart of the federal case. The pro-gay rights side argues that the state is not protecting the marriage rights of gay people equally since a select group of 36,000 are legally wed but all others are excluded from the same right.

Along with clarifying the role of the Mormon Church in the Prop 8 campaign, another question that could be answered by release of campaign documents in the trial’s discovery phase is whether the National Organization for Marriage (NOM), a professional homophobia-advocacy group, is a secret Mormon front group.

Still, many gay rights advocates and civil libertarians are suspicious of the motives of attorney Ted Olson, who, along with his old friend Ken Starr, who argued for the marriage ban in the California Supreme Court, is one of the top right-wing lawyers in the country. Olson’s record is alarming. He managed the anti-Clinton “Arkansas Project” (also known as the “vast right-wing conspiracy”) in the 1990s and, in 2000, he argued for George W. Bush in Bush v. Gore before the Supreme Court, successfully convincing Republican justices to vote 5-4 to appoint Bush as president. He was rewarded for this by being named Bush’s solicitor general.

The fear among civil rights advocates is that Olson is shepherding the Prop 8 case to the U.S. Supreme Court now while it is still controlled by Republicans so that the court will rule against gay marriage, which would make its prohibition “settled law” for a generation or more.

Read the original article in Pensito Review