San Francisco’s Proposition 8 Trial

The “Scopes” trial of the gay marriage movement is underway in federal court in San Francisco, and it is turning out to be a fascinating educational experience. The legal issue is a narrow one — can California voters take away constitutional marriage rights by a mere majority of the voters, after the state Supreme Court has already deemed marriage equality to be a fundamental right. Sadly, the California Supreme Court said yes, but now a federal court is being asked the same question — based upon the U.S. constitution. Given the invocation of the federal constitution, this case has national implications — and may well end up at the U.S. Supreme Court.

Most interesting, unlike many of the other gay marriage cases, the judge in this case is not just looking to written legal briefs to make his decision. Instead, he wants “evidence” for each of the key claims in the case. Thus, the opponents of Proposition 8 have organized a stellar group of academics and advocates who have testified about the immutability of homosexuality, the political discrimination wrought by the marriage bans, and the practical deficiencies of domestic partnership equivalents. Ironically, the case is being fought by a newly-formed advocacy group and a fairly mainstream, almost conservative, group of attorneys. But they are savvy and well-funded, and have mounted an excellent panel of witnesses.

Testimony will be concluded by February 1, and then there will be a two week break, and then the lawyers will return to court to present their closing arguments. A ruling from the judge is not expected for several months — and surely it will be appealed. The first level of appeal is to the Ninth Circuit, and that appeal will take a year or so. Given these lengthy time spans, the long term results are hard to predict — there’s a decent chance that Proposition 8 will be repealed by the voters in 2012, thus rendering any court decision moot, at least in California.

Same-sex marriage in California has been on a see-saw of judicial and political reversals since 2004, and while marriage-equivalent domestic partnership remains a viable practical alternative for couples wanting the security of state-based marital rights, the marriage door may remain closed for another two years or longer.

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