Controversy surrounds Proposition 8 decision

A federal court has begun to hear arguments for and against Californiaís Proposition 8, a state constitutional amendment defining marriage as being between a man and a woman.† The Proposition has been challenged as unconstitutional by two same-sex couples ó one pair of gay men and one lesbian couple.

Although only a week into its projected three-week span, the trial drew media attention and controversy long before it even began. In terms of setting precedent for LGBT, or Lesbian Gay Bisexual and Transgender, discrimination issues, the case has been compared to Brown v Board of Education, the landmark case that struck down ìseparate but equal” facilities for black Americans, and Loving v Virginia, a Supreme Court ruling which protected interracial marriage.

One surprising development that occurred before the start of the case is the identity of the lawyers leading the challenge of Proposition 8. Conservative Ted Olson and Liberal David Boies last shared a courtroom as bitter opponents in the 2000 case Bush v. Gore, in which the Democratic candidate challenged the election results.† Now Olson and Boies, neither of whom has an extensive history as a gay rights advocate, are working together to prove that Proposition 8 is unconstitutional.

As a well-known conservative, Olson has been especially under fire from the right for his decision to argue this case. Olson, however, maintains that it is not a partisan issue.

ìThe very idea of marriage is basic to recognition as equals in our society; any status short of that is inferior, unjust and unconstitutional,” Olson said in his opening statement. ìThe simple fact is that there is no good reason why we should deny marriage to same-sex partners.”

Olson and Boiesí strategy may very well involve establishing legal precedent for a number of heady questions Federal Courts have been hesitant to address. Olson and Boies have stated that they intend to prove that marriage is a fundamental right that gay and lesbian individuals are being denied that right, and that, contrary to the claims of the opposition, gay marriage harms no one and there is no non-bigoted basis for banning gay marriage.

This strategy will likely also involve deeming homosexuals a ìsuspect class” for discrimination, which in turn could mean tackling the question of whether sexuality is mutable, that is to say, whether one can stop being gay?

Meanwhile, on the pro-Proposition 8 side, both California Governor Arnold Schwarzenegger and California Attorney General Gerard Brown have refused to argue in support of the state of California, leaving the defense in the hands of independent defenders who specifically petitioned the court. The conservative defenders of Proposition 8 also petitioned the Supreme Court to bar video coverage of the case, ostensibly to protect themselves from targeted hate crimes. On Wednesday, the court ultimately ruled by a 5-4 decision not to allow cameras in court.

As of press time on Wednesday, the case was proceeding slowly, with the plaintiffs employing expert witnesses to testify on the harmfulness of marriage discrimination and the status of homosexuals as a target of discrimination, as well as calling the lesbian couple who brought the case to the stand to deliver testimony about their own marriage experiences.

Whichever way the court rules, the case will almost certainly be appealed.† At that point it will be up to the United States Supreme Court, who may choose when and whether to hear the case.