The fight for gay-marriage rights took a major blow in 2008 when
Californians passed Proposition 8, a ballot initiative banning gay
marriage. Prop 8's passage marked the beginning of a difficult year for
gay marriage, which saw several high-profile defeats
. But could the courts repeal the measure? Today, a case challenging the legality of Prop 8, Perry v. Schwarzenegger
in U.S. district court in San Francisco. Complicating the issue is the
nature of Prop 8's origin, as the measure was passed explicitly to
overturn the legalization of gay marriage by the California Supreme
Court. Is today's case just another volley or a real step towards a definitive ruling?
- Is It Too Soon? That's the question the New Yorker's Margaret Talbot asks
in a lengthy and detailed cover story. Talbot suggests there could be
lower-hanging fruit for gay rights. She writes that "a loss [...] could
be a major setback to the movement for marriage equality."
Perry v. Schwarzenegger is not the only federal lawsuit for gay
marriage. Another one, Gill v. Office of Personnel Management, is
thought by some scholars to stand a better chance of success, though it
has been overshadowed by Olson and Boies's effort. [...] Gill is not
the damn-the-torpedoes case that Perry is. It challenges a section of
the Defense Against Marriage Act which prevents same-sex couples from
receiving the many benefits accorded to married couples at the federal
level--from joint tax filing to health insurance for federal employees'
families--even though in the state of Massachusetts those couples are
lawfully married. Gill insists not on the constitutionality of same-sex
marriage but on the unconstitutionality of denying federal benefits to
a class of citizens whose marriages are recognized by the state.
- Private Religious Views On Trial? Reagen-era Attorney General Edwin Meese warns
in the New York Times, "No doubt, the plaintiffs will aggressively
exploit this opportunity to
assert that the sponsors exhibited bigotry toward homosexuals, or that
religious views motivated the adoption of Proposition 8. They'll argue
that prohibiting gay marriage is akin to racial discrimination." He
expresses concern over the judge's decision to explore the records and
beliefs of those who pushed Prop 8. He writes of the decision to allow
cameras, "This will expose supporters of Proposition 8 who appear in
courtroom to the type of vandalism, harassment and bullying attacks
already used by some of those who oppose the proposition."
- In Support of Public Broadcast The Los Angeles Times approves
of the court's decision to open the case to television cameras and
Internet broadcast. "Witnesses at this trial will include economists,
psychologists and activists on both sides of the Proposition 8
campaign. We've expressed concern
in the past that some of the testimony might degenerate into another
nasty skirmish in the culture wars, ventilating myths such as the
discredited idea that sexual orientation is a choice. But if the judge
is to hear such testimony -- along with, we hope, more pertinent
arguments -- so should members of the public, and not just those with
physical access to the courtroom."
- The Ruling Isn't The Important Part Law.com's Dan Levine explains
that the case will likely be appealed, so this is all about gathering
evidence and testimony. "What will matter more are his [Chief Judge Vaughn Walker's] decisions and
actions along the way --
the factual findings, evidentiary umpiring and the overall tone and
tenor of the proceedings," he writes. "Prop 8 supporters are clearly
worried about the record he'll create,
and the findings of fact that will flow from it. Those will be
formidable instruments if the case ultimately reaches the U.S. Supreme
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