The History of Proposition 8
The battle of gay marriage in California is not over yet. The “Eliminates Right of Same-Sex Couples to Marry Act), formerly titled “California Marriage Protection Act,” was in November 2008 an initiative on the California voter ballot which defined marriage as between one man and one woman. Consequently, it altered the California Constitution: California became the 29th state to pass a constitutional amendment banning marriage for gay and lesbian couples.
On March 5, 2009, hearings were held in the California Supreme Court on the constitutionality of Prop 8. The court, 90 days later, upheld Proposition 8. Despite the ruling, the 18,000 couples married prior to the ban kept their licenses and rights.
The first same-sex couple to marry in Los Angeles County, Robin Tyle and Diane Olson, along with two other parties, file a lawsuit to fight the constitutional amendment. A month later, former Attorney General and now Governor Jerry Brown personally claimed Prop 8 “unfortunate” and expressed hope that the Supreme Court will overturn the measure.
The Landmark Trial – Cases in Federal, not State Court System
No federal court had ever considered whether gay and lesbian Americans have the freedom to marry prior to January 11, 2010. The Federal District Court had to decide whether the state can deny rights to some Americans based solely on whom those people wish to marry. Should a person’s sexual orientation define whether he or she could marry?
On January 11, 2010, Attorney Ted Olson (Bush vs Gore) asks Plaintiff Kristin Perry what it means to be a lesbian in an opening argument. Olson and Attorney David Boies ( also Bush v. Gore) represented two couples who wanted to marry, Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo. Boies and Olson argued that Prop 8 is prejudicial and discriminatory and contrary to constitutional principles. It violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.
Twelve days, 17 witnesses and nine experts later, the trial ends and presiding Judge Vaughn R. Walker prepares for closing arguments the following March. The ruling: Proposition 8 is unconstitutional. However, shortly after the Prop 8 trial concludes, Judge Walker admits to a ten-year relationship with another man. Conservatives criticize his views, saying that gay bias colored his opinions in court.
However, his ruling is upheld. Another appeal is forthcoming. Heads are turned to California: riding on this appeal is the outcome for gay rights in California and the entire U.S.. The United States Court of Appeals for the Ninth Circuit sided with Olson and Boies in a 2 to 1 ruling: Proposition 8 is unconstitutional.
By law, Prop 8ers can ask that the case be heard by a larger panel of the United States Court of Appeals or take it directly to the Supreme Court. Boies and Olson want the latter. A Supreme Court win means that more than likely all of the anti-gay laws, especially DOMA (Defense of Marriage Act) will become obsolete.
U.S. Supreme Court will decide fate of DOMA cases and Prop 8 this Month
The US Supreme Court will meet November 20th privately to discuss a federal challenge to Proposition 8 and challenges to DOMA. It is considering if it will grant review of AFER’s (American Foundation for Equal Rights) ‘s Perry v. Brown, now Hollingsworth v. Perry’s case.
If it hears the case, it will consider whether Prop. 8 violates the Constitution, paving the way for a Supreme Court ruling on marriage equality for gay and lesbian couples. Boies and Olson, co-counsel for AFER, will file written briefs and present oral arguments in the spring of 2013. By June 2013, the court’s final decision would likely be issued.
If the court does not hear the case, it will let AFER’s court victories go into effect. Marriage equality will return to California within days, according to http://The Supreme Court will decide future of gay marriage cases next month, GAYSTARNEWS, 10/29/12. An appellate court decision ruled the anti-gay marriage ballot measure was unconstitutional. Passed by voters, it would be made permanent and its opponents could not legally challenge.
Sixteen polls show a majority of Americans support the freedom to marry. It means tolerance, inclusion, and equal rights for GLBT individuals. Now that two federal courts have found Prop. 8 unconstitutional, and it’s headed for the Supreme Court ruling, it has a good chance to finally end discrimination.