Same-sex marriage ban issue returns

San Jose Mercury News

SAN JOSE, Calif. — As of this morning, the epicenter of the national debate over gay marriage returns to the same few blocks in San Francisco where it catapulted into a major public issue six years ago.

This time, the same-sex marriage wars will unfold in the city’s federal building, just a short walk from where San Francisco Mayor Gavin Newsom once handed out marriage licenses to gay and lesbian couples at city hall. Now, the legal fight over gay marriage shifts into unprecedented territory with the first trial over the constitutionality of a state’s ban on the right of same-sex couples to wed.

Chief U.S. District Judge Vaughn Walker will consider a lawsuit challenging Proposition 8, the 2008 voter-approved initiative that restored California’s ban on same-sex marriages. To most legal experts, the trial may lay the groundwork for propelling the gay-marriage issue to the U.S. Supreme Court. And those experts say the stakes in the Proposition 8 showdown are immense for the entire gay-rights movement if Perry v. Schwarzenegger, as the California case is called, is etched in Supreme Court lore.

The American Foundation for Equal Rights sued in May on behalf of two same-sex couples — one from Berkeley, Calif. — seeking the right to marry. To overturn Proposition 8, the group attracted widespread attention by turning to conservative legal power broker Theodore Olson, President George W. Bush’s solicitor general, to lead the legal team, along with prominent trial lawyer David Boies. San Francisco city officials also are attacking the law.

The Proposition 8 campaign is defending the law. Gov. Arnold Schwarzenegger has remained neutral even though he is the lead named defendant in the lawsuit, and Attorney General Jerry Brown has filed papers calling Proposition 8 unconstitutional.

The epic fight in Judge Walker’s courtroom will largely be a battle of dueling academics and experts on the subject of marriage, child-rearing, discrimination against gays and other social issues. In the end, to prevail, the plaintiffs must prove that Proposition 8 violates the U.S. Constitution’s equal protection clause by targeting gays and lesbians without any government justification for excluding them from California’s marriage rights.

The lawsuit also targets the two-tiered system of marriage that exists in California: The California Supreme Court, in upholding Proposition 8 last year, left intact more than 18,000 gay marriages licensed before Proposition 8 went into effect. Those marriages took place after the California Supreme Court struck down the state’s prior ban on gay marriage under the California Constitution, a ruling wiped off the books by Proposition 8.

The lawsuit raises claims under the U.S. Constitution, which the state Supreme Court was never asked to consider. The trial is now about the right of same-sex couples to marry from this point forward.