In Battle Over Gay Marriage, Some See Timing As Key

As any regular reader of this blog knows, I fully support full marriage equality for same sex couples under the civil marriage laws. What various religious faiths and denominations wish to do within their own churches, temples or mosques is their business. But when these groups seek to force their religious beliefs into the civil laws, an unconstitutional merger of church and state occur. One of the more interesting cases challenging religious efforts to deny gays full civil marriage rights is the one being quarterbacked by attorneys Theodore B. Olson and David Boies (pictured at above left), a veritable odd couple in terms of the past political endeavors and views. In this lawsuit, however, both take the position that Proposition 8 is unconstitutional under the United States Constitution's guarantee of equal protection under the law. The New York Times has an article that looks at the case, some of the supporters of Proposition 8's inability to say how gay marriage harms straight marriages, and what the U.S. Supreme Court might do if the case ultimately lands in front of it. As much as the opponents of gay marriage dance around the issue, ultimately their opposition boils down to religious belief and nothing else. Here are some highlights:

*

In a San Francisco courtroom two weeks ago, a prominent lawyer opposed to same-sex marriage made a concession that could mark a turning point in the legal wars over the purpose and meaning of marriage. The lawyer, Charles J. Cooper, has studied the matter deeply, and his erudite briefs are steeped in history. He cannot have been blindsided by the question Judge Vaughn R. Walker asked him: What would be the harm of permitting gay men and lesbians to marry? “Your honor, my answer is: I don’t know,” Mr. Cooper said. “I don’t know.”

*
A couple of hours later, Judge Walker denied Mr. Cooper’s motion to dismiss a lawsuit seeking to establish a constitutional right to same-sex marriage. The concession and the ruling that followed it have transformed a federal lawsuit that had been viewed with suspicion by many gay rights advocates into something with the scent of promise.

*

In the courtroom, Mr. Cooper’s arguments seemed to fall of their own weight. The government should be allowed to favor opposite-sex marriages, Mr. Cooper said, in order “to channel naturally procreative sexual activity between men and women into stable, enduring unions.” Judge Walker appeared puzzled. “The last marriage that I performed,” the judge said, “involved a groom who was 95, and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?” Mr. Cooper said no.

*

Still, it is one thing to persuade Judge Walker. The ultimate destination of Mr. Olson’s suit is the Supreme Court, and it is hardly clear that he will be able to convince five justices to see things his way. . . . Mr. Olson’s problem, then, is that he may reach the Supreme Court too soon. Public support for same-sex marriage is gaining ground, particularly among younger people. But a majority of Americans remains opposed to the practice.
*

At the argument, Judge Walker seemed to share this concern. “Aren’t you just getting ahead of yourself by asserting this claim under the federal constitutional provisions?” the judge asked. Mr. Olson responded by comparing his case to Loving v. Virginia, the 1967 Supreme Court decision that held bans on interracial marriage to be unconstitutional. But 34 states permitted interracial marriage when Loving was decided. Only six states permit same-sex marriages.

*

Judge Walker has scheduled a trial in the case for January. He wants to hear about the history and purpose of marriage and the consequences of allowing same-sex couples to marry. And he has hinted that he may allow the proceedings to be televised. “We should buckle our seatbelts,” Professor Yoshino said. “A comprehensive vetting of the empirical issues by a judicial tribunal is welcome and long overdue. Walker’s trial bids fair to be a trial in an almost scientific sense of the word.”

*

The other development in the case so far that may provide great sport is that Judge Walker has ordered that the supporters of the Proposition 8 effort turn over their internal memorandums, etc., in part to determine if anti-gay animus was a motivating factor in their efforts. I think most of us can guess that these memos and other documents will strongly demonstrate anti-gay animus and the desire to force one set of religious views into the civil laws. Things that would make it far more difficult for a court - and even the U.S. Supreme Court - to uphold Proposition 8. Here are some highlights from the San Francisco Chronicle:

*

A federal judge said sponsors of California's ban on same-sex marriage may not delay in handing over campaign strategy documents to gay-rights groups that are looking for evidence of anti gay bias as they try to overturn the measure. . . . Chief U.S. District Judge Vaughn Walker of San Francisco said backers of Proposition 8 had failed to show that disclosing internal memos and e-mails would violate their freedom of speech or subject them to harassment.

*

He said they had refused to identify any documents that needed special protection and noted that he could order their opponents to keep any sensitive material confidential. "It simply does not appear likely that (Prop. 8's) proponents will prevail on the merits of their appeal," Walker said. He said he doubts that a federal appeals court even has jurisdiction to consider the dispute at this early stage of the case.

*

The measure's sponsors, a conservative religious coalition called Protect Marriage, said voters were entitled to reaffirm the traditional definition of marriage and that the organizers' alleged motives were irrelevant.

*

Obviously, if one has nothing to hide, then you do not act in the manner of the Protect Marriage crowd. Obviously, they realize that their might be some bombshells that could come to light and perhaps sway not only the court but also public opinion. Personally, I'm looking forward to seeing what inconvenient memos and strategy materials come to light. Perhaps the Protect Marriage folks will end up having documented their own theocratic and bigoted motives for all to see.