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Proposition 8 (California)  
 
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The tone of the majority decision was curiously apologetic. Indeed, in emphasizing that domestic partnerships are the equivalent of marriage in all but the name, the ruling may have strengthened the domestic partnership law, making it possible for same-sex couples, for example, to refuse to testify against each other and claim other rights that married couples assume but that are not specified in the domestic partnership law.

The decision let stand the 18,000 existing marriages because, the Court said, Proposition 8 did not include language specifically saying it was retroactive.

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In a spirited dissent, Justice Carlos Moreno deplored the majority ruling, saying that Proposition 8 "strikes at the core of the promise of equality that underlies our California Constitution." Upholding it, he said, "places at risk the state constitutional rights of all disfavored minorities."

Federal Challenge to Proposition 8

Soon after the announcement of the California Supreme Court's decision upholding the constitutionality of Proposition 8, acclaimed litigators Theodore Olson and David Boies, who had opposed each other in the bitterly contested Gore v. Bush Supreme Court case that decided the 2000 Presidential election, announced that they would take the battle for marriage equality to federal court.

Their announcement was initially greeted less than enthusiastically by some gay legal organizations and experts, who judged the move risky and premature, but the attorneys soon convinced most glbtq groups and individuals of their commitment.

One of the most intriguing aspects of the Boies-Olson suit was that it may have helped make the cause of marriage equality less partisan than it had previously been perceived, since Olson, a former Solicitor General, is a prominent conservative Republican, while Boies is a well-connected liberal Democrat.

The Olson-Boies case was supported by the American Foundation for Equal Rights, which had been formed by activist-actor-director Rob Reiner and political consultant (and later president of the Human Rights Campaign) Chad Griffin specifically to mount a challenge to Proposition 8 in federal court. To fund the lawsuit, which they hoped would ultimately establish same-sex marriage as a fundamental right throughout the country, they initially reached out to a handful of like-minded millionaires with an interest in equal rights, including Norman Lear, Steve Bing, and David Geffen, who provided approximately five million dollars in seed money. Others joining the effort were producer Bruce Cohen and screenwriter Dustin Lance Black--who had collaborated on Milk, the Oscar-winning biopic about pioneering gay-rights advocate Harvey Milk.

The suit was brought on behalf of one lesbian couple, Kris Perry and Sandy Stier, who have four children, and a gay male couple, Paul Katami and Jeff Zarrillo. Because the nominal defendants in the case include the Governor of California and one of the plaintiffs is named Perry, the case was initially known as Perry v. Schwarzenegger. (In the appellate process it ultimately became known as Hollingsworth v. Perry.)

The case was filed in May 2009 in the Federal District Court for Northern California and was assigned to the court's Chief Judge, Vaughn R. Walker, who was appointed to the bench by President George H. W. Bush in 1989.

The trial began on January 11, 2010. Because Governor Schwarzenegger and California Attorney General Jerry Brown declined to defend Proposition 8, with Brown declaring that he considered Proposition 8 unconstitutional, the ban on same-sex marriage was defended by the proponents of Proposition 8, ProtectMarriage.com, led by chief counsel Charles Cooper.

In the course of the trial, which spanned twelve days in January and two days in June 2010, Olson and Boies systematically built their case around the history of marriage, the harm that denial of marriage rights does to gay and lesbian couples and their children, and the irrationality of the ban. Introducing a massive amount of evidence, they demonstrated that the ban was enacted out of animus against homosexuals and that it causes great harm to gay men and lesbians for no rational governmental purpose.

The defense was stymied by the fact that they were unable to argue against same-sex marriage on religious grounds or on the inferiority of homosexuals, which they used effectively in the campaign for Proposition 8, since such arguments would not be admissible as appropriate governmental reasons for denying a fundamental right. Instead, they were reduced to arguing that the only purpose of marriage is procreation and that permitting same-sex couples to marry would in some unspecified way contribute to the "deinstitutionalization" of marriage.

Whereas the opponents of Proposition 8 called a number of leading experts, such as distinguished Harvard historian Nancy Cott, to argue in favor same-sex marriage, the proponents called only one self-described "marriage expert," David Blankenhorn, who, it was revealed, has no Ph.D. in a relevant field and has published only a single peer-reviewed scholarly article, and that article had nothing to do with marriage.

Most damagingly for his reputation as an expert, Blankenhorn was cross-examined by David Boies, who sliced-and-diced his testimony to a fare-thee-well.

Despite having asserted over and over again in various speeches and publications that allowing gay men and lesbians to marry would harm the institution of marriage, under oath a tongue-tied Blankenhorn could not articulate what this damage would be. Nor could he cite any harm that the institution of marriage had suffered in those jurisdictions where same-sex couples have been allowed to marry for more than a decade. Nor could he explain straightforwardly his social science methodology.

On August 4, 2010, Judge Walker issued his decision. His 136-page opinion demolished the credibility of the defendants' witnesses (pointedly remarking, for example, that "None of Blankenhorn's opinions is reliable"), systematically outlined 80 findings of facts established by the plaintiffs, and concluded unambiguously that Proposition 8 is unconstitutional.

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