Gay marriage in California may turn the
corner yet.
After an $83 million ballot battle –
the costliest in American history – lawyers will resume their fight
over gay marriage at the California Supreme Court on Thursday in San
Francisco.
Justices are set to hear oral arguments
in a lawsuit that argues that Proposition 8, the ballot initiative
that yanked back the right of gay and lesbian couples to marry in the
state, is an illegal constitutional revision and should be
invalidated.
Proposition 8 passed voter approval by
a slim majority (52%) on November 4 and overturned a May state
Supreme Court ruling granting gay and lesbian couples the right to
marry.
At stake is the legality of 18,000 gay
marriages performed during the June-to-November “summer of love”
when gay marriage was legal.
Opponents of Proposition 8 say it is an
illegal revision to the state Constitution and not an amendment at
all. Because it takes away previously granted rights – minority
rights protected by the Constitution – it fundamentally alters the
document. They contend that only the Legislature has the right to
place such a question before the voters.
Passage of Proposition 8 sparked huge
gay rights protests, heated debates, boycotts and even political
retribution for people on both sides of the issue.
Gay rights activists reacted
immediately, taking to the streets the day after passage. Thousands
demonstrated in front of churches and temples that had supported the
gay marriage ban holding signs that read “No More Mr. Nice Gay,”
“No on H8” and “I didn't vote against your marriage.”
Businesses that donated to the Yes-on-8
campaign were picketed and boycotted. Donor lists were published on
the Internet.
The debate only intensified when
conservative leaders took out a full page ad calling the
demonstrations mob “intimidation.” A New York Times
full-page ad paid for by The Becket Fund for Religious Liberty called
the protesters “mobs, seeking not to persuade but to intimidate.”
And some people paid dearly for voting
their convictions. Twenty days after the vote, Richard Raddon
stepped down as director of the Los Angeles Film Festival after it
was revealed that he had given $1500 to the Yes-on-8 campaign. Also
out was Scott Eckern, director of the not for profit California
Musical Theatre, a Sacramento playhouse that was producing The
Color Purple at the time of Eckern's ouster.
As fall gave way to winter, and the
state Supreme Court agreed to intervene, the demonstrations died down
and the rhetoric was placed on simmer. The gay marriage debate
shifted away from California – first to New England, then to New York,
Hawaii and New Mexico – but on Thursday the pot is certain to boil
over once again.
Will the court side with popular will
or, having already tagged marriage as a fundamental right, move to
strike the anti-gay measure? A decision is expected before summer.
Arguing in favor of Proposition 8 will
be Kenneth Starr, the former independent counsel who investigated
President Bill Clinton in the Whitewater affair, which led to the
impeachment of Clinton in the House. The Senate, however, acquitted
him.
Proponents of Prop. 8 say they will
also seek to nullify the thousands of gay marriages performed.
“Its [Prop. 8] plain language
encompasses both pre-existing and late-created same-sex (and
polygamous) marriages, whether performed in California or elsewhere,”
Prop. 8 backers wrote in a brief. “With crystal clarity, it
declares that they are not valid or recognized in California.”
Supporters of repeal have flooded the
court with “friend of the court” briefs, including the NAACP, the
National Organization for Women, labor groups, local governments and
the ACLU. On Monday, the California Legislature passed a resolution
expressing support for repeal. And California's top lawyer, Attorney
General Jerry Brown, has refused to defend the initiative and called
it “unconstitutional.”
But whatever decision is handed down,
it will certainly not be the final say. Both sides have hunkered
down for the long haul and voters are likely to face a pro- or
anti-gay marriage initiative in 2010 – the only question that
remains is which.