Gay marriage on trial

last updated 8 January 2015

A federal court in California heard opening arguments this week in a landmark lawsuit that could ultimately determine the fate of same-sex marriage nationwide. The suit, brought by two gay couples, tests whether a 2008 voter initiative called Proposition 8, which limits marriage to opposite-sex couples, violates the U.S. Constitution’s guarantee of equal treatment under the law. The plaintiffs contend that same-sex couples could suffer irreparable harm if the institution of marriage is denied to them. Defenders of Prop 8 argue that letting gays marry would undermine the institution’s role in promoting strong, traditional families. Whatever the outcome, the verdict is certain to end up before the U.S. Supreme Court, whose ruling could affect marriage laws in every state.

Leading gay-rights organizations opposed bringing this suit, said Emily Bazelon in Slate.com. They calculated that “they didn’t have the votes in the Supreme Court to win such a high-risk fight.” But “power lawyers” Theodore Olson and David Boies, who represent the plaintiffs, are confident that they can win over five Supreme Court judges. Their all-or-nothing gamble makes this audacious suit “a thrill; it’s also terrifying.”

Gays are likely to win this first round, said Ed Whelan in National Review Online. It’s clear that Judge Vaughn Walker, who’s hearing the case, “is eager not merely to strike down Proposition 8 but also to orchestrate a show trial of Proposition 8’s sponsors.” He’s ruled that Boies and Olson can delve into the views on homosexuality held by opponents of gay marriage, in an attempt to tar them as bigots. It’s a blatant show of favoritism. Obviously, defenders of Prop 8 would prefer to disguise their homophobia, said Karen Ocamb in Huffingtonpost.com. But Boies and Olson have every right to ask “if a political campaign and its staff have the clear intention to deprive someone else of their rights and use bias to manipulate voters.”