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January 12, 2010

Column # 1,481

Gay Marriage Headed to Supreme Court?

By Mike McManus


The gays are indefatigable.

Having lost at the ballot box in 31 states (most recently, Maine) and also in the New York and New Jersey legislatures in recent weeks, where gays predicted victories, gay activists have filed a legal case in California that is likely to go to the U.S. Supreme Court.

They hope to overturn the clear popular will in every state which rejected same-sex marriage.

Their case is that the founding fathers, who wrote the Constitution, believe in same-sex marriage.

Gays are trying to overturn Proposition 8 in which 52 percent of California voters added an amendment to the state's constitution limiting marriage to the union of a man and woman.

San Francisco began issuing marriage licenses to same-sex couples in 2004, a move annulled by the CA Supreme Court months later. However in May, 2008 the same court voted 4-3 to legalize gay marriage. That decision was reversed by the November, 2008 vote on Prop 8. 

Gay rights lawyers argued in March, 2009 that Prop 8 was unconstitutional. Interestingly, the CA Supreme Court disagreed, upholding the right of the people to overturn the Supreme Court!

Two gay couples appealed the case to a Federal Court, and the trial began this week before a single Judge, Vaughn Walker, with testimony from two plaintiffs in the case, Kristin Perry and Sandra Stier, who wed in California in 2004, only to have their union declared invalid.

Ms. Stier said that being able to marry her partner would "provide me with a sense of inclusion in the social fabric of the society I live in.  I want our children to feel proud of us.  I don't want them to worry about us," she told the court.

Her partner added, "The state is not letting me be happy." Now there's a constitutional question.

Paul Katami, a homosexual plaintiff who sued to challenge Prop 8, was shown a campaign video supporting Prop 8 which ended with: "Stand up for righteousness. Vote YES on Prop 8."  Attorney David Boies asked Katami how the ad made him feel.

Katami replied it made him angry because it implied, "We're a class of citizens or a category of people who need to be stood up against for some reason.  We're no harm.  We want to do one thing. I want to get married to Jeff. I want to start a family."

David Boies became famous when he argued before the U.S. Supreme Court that Al Gore won the Presidential election.  His opponent in that case, Theodore Olson, former U.S. Solicitor General, who argued Bush was the victor, is the co-counsel with Boies in this case.

America's two most famous lawyers are presenting an ominous bipartisan face to this issue.

That is one reason all expert observers believe that regardless of how Judge Walker rules in this case, that it will be appealed all the way to the U.S. Supreme Court.

Brian Brown, director of National Organization for Marriage, said "This lawsuit is an attempt by Judge Walker to put the voters of California on trial, and it's wrong.  I think our founding fathers would be rolling over in their graves if they heard that the constitution guarantees the right to redefine marriage."

Among the witnesses who will testify in the two-week trial are the official sponsors of Prop 8 and an array of expert witnesses to be called by both sides to testify on such issues as the historical meaning of marriage, the economic benefit of marriage and whether children fare better when their parents are a heterosexual married couple.

Theodore Olson, representing the gay couples, told Walker, "Marriage is the most important relation in life." He added, Proposition 8 "stigmatizes gays and lesbians and says, `Your relationship is not the same' as those of heterosexual couples.'"

His opponent, Charles Cooper, a lawyer for the Prop 8 sponsors, which included thousands of churches, argued in opening remarks that marriage is a "pro-child social institution."  He said barring same-sex marriages is justified because the basic purpose of marriage is "to promote naturally procreative sexual activity in a stable and enduring relationship that will nurture children."

He also argued that gays and lesbians are not the target of ill will or discriminatory intent. "There are millions of Americans who believe in equal rights for gays and lesbians but draw the line at marriage."

More comprehensive arguments will be needed to win this case.

Facts: A 2000 Justice Department study revealed homosexual partners are 84 times more likely to experience domestic violence than married heterosexuals. A 2007 study reported gays live 24 years shorter lives.

Should children be brought up in such a union?

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