HRC Blog

Prop 8 Trial Starts Today; Supreme Court Blocks Broadcast of Trial, For Now

Today, trial begins in U.S. District Court in San Francisco on the validity of California’s Proposition 8, a state constitutional amendment barring marriage equality which was adopted by California voters in November 2008.  The trial will put the arguments against marriage equality to the test and is the first step toward a substantive decision in this federal constitutional challenge to Prop 8, known officially as Perry v. Schwarzenegger.   The trial judge had ordered the proceedings to recorded and posted on YouTube, but today, the U.S. Supreme Court temporarily suspended posting those recordings while it reviews the objections raised by supporters of Proposition 8, who intervened in the lawsuit last year. Case Background On May 15, 2008, the California Supreme Court concluded that California’s denial of full marriage rights to same-sex couples violated the state’s constitution.  Shortly thereafter, California began issuing marriage licenses to same-sex couples, and thousands married there.  On November 4, 2008, California voters narrowly approved Proposition 8, which wrote a ban on marriage for same-sex couples into the state’s constitution.  Marriage equality advocates filed a state court challenge to Proposition 8, arguing that California’s constitution does not permit voters to eliminate civil rights through an initiative.  That challenge failed. In May of 2009, on the eve of the California Supreme Court’s decision upholding Proposition 8, attorneys David Boies and Theodore Olson—famous for representing Al Gore and George W. Bush, respectively, in Bush v. Gore—filed a federal constitutional challenge to Proposition 8, arguing that California’s new constitutional provision violates the Equal Protection and Due Process Clauses of the United States Constitution.   The case was assigned Judge Vaughn Walker in the U.S. District Court for the Northern District of California.  On August 19, Judge Walker ordered a trial to determine whether the facts support California’s justifications for Proposition 8. On January 6, 2010, Judge Walker ordered that the trial proceedings be recorded and made available on YouTube.  The supporters of Proposition 8, who are intervenors in the case, objected to this broadcast of the trial and filed an emergency appeal to stop it.  Today, the U.S. Supreme Court temporarily suspended the recording and posting of the trial until Wednesday so it can review the issue further. What’s on Trial? This trial will put all of the anti-marriage equality arguments to the test.  Where some previous court decisions have often taken justifications like “promoting marriage” at face value and hid behind alleged uncertainty about gay families, this trial will face these questions head on, and put the lies on trial.  In order to determine whether Proposition 8 discriminates and whether the justifications for it are valid, the court will be addressing various factual questions, including:

  • Whether Proposition 8 should be reviewed under “heightened scrutiny,” meaning that the state needs a compelling justification for the law, because, among other reasons, lesbians and gay men have experienced a history of discrimination in society;
  • Whether, as Proposition 8 supporters claim, different-sex marriage is a meaningful option for lesbians and gay men; and
  • Whether the intent of Proposition 8 was discriminatory

What Happens Next? Judge Walker has indicated that the trial will take about two weeks.  He will issue an opinion sometime in the coming months and, regardless of which side prevails, that decision will likely be appealed to the U.S. Court of Appeals for the Ninth Circuit and, eventually, the U.S. Supreme Court.

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