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Olson and Boies (Associated Press/Photo by Paul Sakuma)

Marriage on trial

Courts | A decision repealing California's constitutional ban on same-sex marriage could have national ripple effects

Proposition 8, the successful California ballot initiative that led to a state constitutional amendment recognizing only marriage between a man and a woman, is on trial this week in San Francisco. The outcome may overturn the same-sex marriage ban in California and even across the country, if the case is appealed to the U.S. Supreme Court and it rules against the ban. According to Austin Nimocks, one of the Alliance Defense Fund attorneys working to defend Proposition 8, "Any loss for those who are defending marriage on this case will have national ripple effects regardless of the technical legal effect."

Two of the nation's top attorneys-former political foes Ted Olson and David Boies-are bringing the case before the U.S. District Court of Northern California. The plaintiffs-two homosexual couples-say in their complaint that they suffer "irreparable harm" every day they are not allowed to marry. The complaint speaks of the "intangible, symbolic difference" between marriage and domestic partnerships. The part that Proposition 8 supporters find especially unsettling states that the constitutional amendment poses a disadvantage due to "disapproval or animus against a politically unpopular group."

In other words, it's not just the referendum itself that is on trial but also the personal beliefs of the people who fought for it. Instead of relying simply on legislative history or constitutional precedent to decide the case, the attorneys are calling Proposition 8 leaders to the stand and investigating them for bigotry.

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But there are no protests, no rallies, no public outcry planned. For now, the Proposition 8 supporters are "laying low," said Chris Clark, pastor of East Clairemont Baptist Church in San Diego: "We're going to be prayerful, we're going to be observant, but we're not going to be taking to the streets and protesting. We worked the system. We worked within the provisions of our government to enact this law and we did this legally. We did this without any malice in our hearts and so we have nothing to take to the streets on."

Clark said the decision to put people's personal beliefs on trial is the most disturbing part of the case: "It's looking like the people that are being put on trial and being put on the witness stand are being tried for a crime, and that only crime is they voted their conscience, they voted their values, and now somehow their values are being drawn into question as having some sort of malicious intent."

A series of pre-trial rulings seemed calculated to turn the case into a national spectacle. Chief U.S. District Judge Vaughn R. Walker originally ruled that the proceedings could be televised on the court's YouTube channel, an unorthodox decision and one that leaders feared could make them the target of vandalism and threats. However, the U.S. Supreme Court has blocked the videotaping at least until Wednesday, when it will release a final ruling on the matter. Clark said he felt "fairly confident" that the Supreme Court would permanently stay the videotaping. Walker also ruled that the attorneys could use as evidence the "internal communication" of the Proposition 8 leaders, but the 9th U.S. Circuit Court of Appeals overturned that decision.

Nimocks said that although the decision will have ripple effects for both sides, no matter how the case goes, the gay marriage issue will not go away: "No one case, no matter how big or important, will ever settle this issue." He notes that Roe v. Wade has not made the abortion issue disappear, despite the hopes of abortion supporters. "This case will not decide the issue regardless of how it comes down."

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