california constitution Archives - Fran Moreland Johns

Can gay marriage be a fundamental right, when all legal protection has been denied until recently? In a state that treats domestic partners the same as spouses, “what purpose is served by differentiating – in name only – between same-sex and opposite-sex unions?”

These are two of the questions sent to opposing lawyers by U.S. District Judge Vaughn Walker, who will hear their closing arguments next Wednesday in the San Francisco case being watched for broader implications. Supporters of gay rights are seeking to overturn Proposition 8, California’s voter-approved ban on gay marriage.

The closing arguments won’t be watched by just anybody. Judge Walker ruled late this week that arguments may not be televised beyond the closed circuit of the courthouse. So you’ll have to be on site to follow the proceedings up close and personal. Media organizations had sought to have the session, which is expected to last all day, televised; proponents of Prop 8 argued against the idea.

The denial means “the public will again only hear about this case second-hand,” said Thomas Burke, the media groups’ lawyer.

Andrew Pugno, a lawyer for sponsors of the ballot measure that banned same-sex marriage, countered that “the purpose of the court is not to entertain or educate the public, but to protect the right to a fair and impartial trial.” The sponsors had opposed televising any trial proceedings.

Two same-sex couples and the city of San Francisco have sued to overturn Proposition 8, the November 2008 initiative that amended the California Constitution to define marriage as the union of a man and a woman.

Walker presided over the non-jury trial in January. He had proposed to televise the trial live to several federal courthouses around the nation and record the proceedings for a delayed Internet posting on YouTube.

The telecast, which would have been the first for a federal court in California, was blocked by the U.S. Supreme Court just before the trial started.

In a 5-4 ruling, the court said Walker hadn’t given the public enough time to comment on the proposed change in court rules. The court also cited claims by Prop. 8’s sponsors that showing the proceedings outside the courthouse might intimidate witnesses.

Media organizations asked Walker last month to approve televising the closing arguments. They said that airing a hearing that included only lawyers and the judge couldn’t affect witnesses or the fairness of the trial.

Prop 8 supporters argued, though, that cameras in the courtroom could prompt “grandstanding and avoidance of unpopular decisions or positions.” Whatever the judge’s decision, it is guaranteed to be widely unpopular.

No TV for closing arguments in Prop. 8 trial.

Shortly before the trial focusing on California’s Proposition 8 opened this morning, the Supreme Court blocked video of the proceedings on You Tube. Judging from the line-up of TV trucks and the impassioned testimony going on inside, it’s likely that a good sense of the action will be available. But no on-site video. Opponents of Prop. 8 had hailed an earlier order to allow posting of video on You Tube, but supporters of the anti-gay marriage initiative mounted a strong argument to get the U.S. Supreme Court to ban such action. An updated story link is included at the end of this earlier post.

California’s Proposition 8, the voter initiative that said marriage must be only for couples who can produce children, came up for discussion in a San Francisco courtroom beginning today.

The cameras-in-the-courtroom mini-drama, launched when maverick Chief U.S. District Judge Vaughn Walker ruled in favor of the YouTube postings, has become a significant sidelight to the main issue of the case. Prop. 8 supporters fear their witnesses will be afraid to testify — public support of bigotry still being unpopular in California despite what the voters did when they passed the initiative; gay rights supporters are coming out, once more, for openness.

“What are they afraid of?” asked California State Senator Mark Leno Saturday. Leno was asked for his opinion while attending House Speaker Nancy Pelosi’s celebration with supporters in San Francisco. “As an advocate for open and transparent government,” he said, “what is there to fear? Taxpayers should be able to see the courts they pay for in action.” Leno, the first openly gay man elected to the California Senate and long a leader in gay rights and other progressive causes, called the State Supreme Court’s earlier ruling that upheld Prop. 8 last May “a rallying cry for all Californians who believe in equality and fairness… to stand up and fight the pervasive injustices LGBT people face in our community and our nation.”

The current primary issue, whether same-sex couples should have the right to marry, is being argued in San Francisco federal court beginning today. Judge Walker, an appointee of President George H.W. Bush, has made it clear he anticipates his ruling will be appealed.

For two couples and their allies who have filed a lawsuit seeking to overturn California’s Proposition 8, the November 2008 initiative was merely the latest example of historic discrimination against gays and lesbians.

Same-sex marriage poses no threat to opposite-sex couples, children or the public welfare, they argue, and a ballot measure that revoked the marital rights of one “disfavored group of citizens” was an unconstitutional appeal to fear and prejudice.

For Prop. 8’s sponsors, a religious coalition called Protect Marriage, anti-gay bias is no longer significant in California, where legislators have legalized domestic partnerships and twice voted to authorize same-sex marriage. Discrimination also had nothing to do with the ballot measure, which merely wrote the time-honored definition of marriage into the state Constitution, they argue.

Extending wedlock to gays and lesbians, they maintain, would radically redefine marriage, weaken biological parents’ connection with their children, tell men that “they have no significant place in family life” and force many religious Americans to “choose between being a believer and being a good citizen.”

The competing legal theories that will come up in court are a bit simpler: whether Prop. 8 violates the constitutional guarantee of equal protection by discriminating on the basis of sexual orientation and gender, or whether it validly reserves marital status for those who can naturally conceive children.

The initiative overturned a May 2008 state Supreme Court ruling that allowed gays and lesbians to marry in California. The state high court upheld Prop. 8 in May 2009 in a challenge by gay rights advocates whose claims involved only state law and not the U.S. Constitution.

A few days before the state court ruling, two couples and a recently formed advocacy group, the American Foundation for Equal Rights, sued in federal court. Their lawyers are the unlikely duo of Theodore Olson and David Boies, who represented George W. Bush and Al Gore, respectively, in the Supreme Court case that decided the 2000 presidential election.

Established gay rights organizations had avoided federal court, fearing a possible adverse ruling by a conservative U.S. Supreme Court. But with the fate of same-sex marriage in California, and possibly elsewhere, at stake in the trial, the advocates are all on board and most have filed supportive briefs.

Prop. 8’s sponsors – vaulted into the case by state Attorney General Jerry Brown’s refusal to defend the measure – say its clear-cut goal was to reinforce traditional marriage, and any inquiry into the campaign’s allegedly hidden motives is both intrusive and pointless.

“The traditional definition of marriage does not reflect animus against gays and lesbians,” attorney Charles Cooper said in court papers. “It simply reflects the fact that the institution of marriage is, and has always been, uniquely concerned with promoting and regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation,” Cooper wrote.

The trial will test such assertions, with competing experts arguing about the history and meaning of marriage, the adequacy of domestic partnership as a marital substitute, and the social and political status of gays and lesbians.

Walker has kept his views to himself, but his rulings so far have dismayed some of Prop. 8’s supporters, who appear to be bracing their followers for a short-term defeat.

“The consistency with which the judge has sided with our opponents is anything but comforting to supporters of traditional marriage,” Andrew Pugno, general counsel for Protect Marriage, said in a letter to backers of the measure last week.

Fortunately, Pugno said, the last word will come from “the nine justices on the highest court in the nation.”

Prop. 8 trial begins today.

http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2010/01/11/state/n080724S48.DTL&tsp=1

Tag: california constitution

Judge to rule on same-sex marriage

Same-sex marriage trial underway in San Francisco — but no You Tube coverage for now