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What is going on with Prop 8?

Posted by Jennifer Roback Morse on Wednesday, December 01st at 5:00am

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I hear this question all the time when I travel. I heard it this fall in Michigan and New Jersey and North Carolina. The Prop 8 case, Perry v. Schwarzenegger, will be in court again on December 6th. I will be live-blogging from the courtroom. I expect the posts will be at www.prop8case.com and at www.ruthblog.org. This case is extremely important, no matter where you live. Perry v. Schwarzenegger is a federal case. The court is being asked to rule on the question of whether the requirement that marriage consist of one man and one woman violates the U.S. Constitution. If the courts find that there is a federal right to same sex marriage, there will be same sex marriage all over the country, immediately. End of story. You care about this case.

Between living in CA and working on the marriage issue for a living, I tend to forget that not everybody is following every twist and turn of the Prop 8 trial. So let me review the main points, for the benefit of our readers to the East.

Proposition 8 was a ballot initiative in 2008 that amended the Constitution of California to say that only marriage between a man and a woman is valid in California. It passed by over 52% of the vote. In other words, Prop 8 barely scraped through the electoral process by the same percentage of the vote by which Obama was anointed the Chosen One. Oh, the inconsistencies of our Main Stream Media! But I digress.

Advocates of natural marriage put Prop 8 on the ballot because the Supreme Court of California had declared in May 2008 that man/woman marriage violated the Constitution of the State of California. The case was called In re: Marriage Cases.

That case came about because some advocates of same sex marriage challenged a ballot initiative from 2000, called Prop 22. That initiative had the same language as Prop 8, but it was just a regular law, and not an amendment to the CA Constitution. It passed with 61% of the vote. ("Haven't we already voted on this?" I used to hear that all the time during the Prop 8 campaign. Yes, we did already vote on it.)

In the meantime, the state of California had enacted some of the most liberal domestic partnership laws in the U.S., solving virtually all the practical problems same sex couples would ever be likely to encounter. But the domestic partnerships were not considered good enough by the gay rights establishment, so they brought the Marriage Cases. (If you look at footnote 24 to the In re: Marriage Cases, you'll see the list of 9 things that are different between marriage and domestic partnerships. You will not see any particularly onerous differences or invidious distinctions. One of the nine is a provision that doesn't even benefit married couples and so is seldom used.)

So in spite of having extremely ample domestic partnership provisions in CA law, the gay lobby brought a law suit to overturn Prop 22, and insist on same sex marriage. Anticipating that the CA Supreme Court would redefine marriage, a group of CA citizens put Prop 8 on the ballot for the 2008 election. As soon as the voters of CA approved Prop 8, the gay lobby and friends began a series of legal challenges. The challenges failed at the state level.

The case before us, Perry v. Schwarzenegger, was brought into Federal Court by the "Dream Team" of Ted Olsen a (nominal or former) conservative, and David Boies, a liberal. They won in their first round of federal court, when Judge Vaughn Walker found that Prop 8 violated the U.S. Constitution, last summer in federal district court. His opinion is here.

The Protect Marriage team has appealed the decision to the Ninth Circuit Court of Appeals. The Ninth Circuit, widely regarded as the most liberalcircuit court in the nation, will hear oral arguments on Monday, Dec. 6th. I'll be there. You can be there too. Just tune in here for the latest. Trust me: no matter where you live, this case is important.


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