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Associated Press/Photo by Eric Risberg

Legal vs. circumstantial

Where do Prop 8 proponents go from here?

Issue: "Warrior class," Aug. 28, 2010

Now that a U.S. District Court judge has decreed a constitutional right to same-sex marriage, faith-based organizations are bracing themselves for the decision's possible impact. The Institutional Religious Freedom Alliance (IRFA) said that clergy should be safe from having to perform same-sex marriage ceremonies, but religious organizations and individuals are vulnerable to lawsuits if they choose not to recognize same-sex marriages. District Court Judge Vaughn R. Walker said his decision would not require religious organizations to change their policies toward gays, but the IRFA is calling on the California legislature to pass legislation protecting religious institutions, individuals, and small businesses from having to provide services and benefits to same-sex couples.

In his 138-page ruling, Walker faulted Proposition 8 proponents for failing to prove that the voter-approved measure served a legitimate government interest, chiding proponents for bringing only two witnesses while opponents presented 17. Walker said that according to the evidence presented, same-sex attraction is immutable, same-sex couples have "happy, satisfying relationships," and same-sex marriage will not affect the stability of opposite-sex marriages. The pro-family Liberty Counsel joined Walker in criticizing the proponents' strategy, saying it offered to help defend Prop 8 over "concern that the case was not being adequately defended," but the attorneys rejected help. Jim Campbell, attorney for Alliance Defense Fund, said that its attorneys stand by their strategy. Walker viewed the case as a question of evidence: Could Prop 8 defenders prove that allowing same-sex marriage would create adverse social consequences? But the Prop 8 defenders viewed it as a legal question: Was it unconstitutional for Californians to vote to preserve a centuries-old definition of marriage? Campbell said ADF's attorneys are confident that the 9th Circuit Court of Appeals will, like other courts up to this point, view the question as a legal one too.

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