Federal Judge to Choose Between the Right and Doing What's Right

It's Civil Rights vs. the Conservative Right in the Federal Court in San Francisco, Ca. this week. Lawyers Theodore Olson and David Boies team up to challenge the unconstitutional nature of California's Proposition 8 against Charles Cooper, lawyer for Proposition 8 backers, who claim any marriage between gay couples could have an unknown effect on society. Judge Vaughn R. Walker will be presiding over the trial without a jury.

Olson and Boies are arguing that Proposition 8, which bans same sex marriage in California, is unconstitutional. This argument is not without merit. The Equal Protection Clause of the Fourteenth Amendment of the Constitution provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws". After Proposition 8 was passed the state of California denied to all gay persons within its jurisdiction the equal protection of the institution of marriage.

Judge Walker pointed out on Monday that gay couples do have the right to enter in to domestic partnerships in the state of California, which provides the same rights and benefits of marriage. The judge had asked "If California would simply get out of the marriage business and classify everyone as a domestic partnership, would that solve the problem?" Olson replied that would indeed solve the problem, but was not likely to be politically feasible.

Charles Cooper, who is representing Prop. 8 sponsors, mentioned in his opening statement the fact that only five states have opened the institution of marriage to same-sex couples, and three of them were required to do so by judges. It could seem that Cooper may have been inferring that states which legalized same sex marriages did so against the will of the people. In another instance it was said that the effect that legalizing same sex marriage will have on society cannot be determined because it is still a "social experiment".

There have been other instances in history when it was necessary for a judge to make controversial rulings to protect the civil liberties of a few, even when it was not popular. Jim Crow Laws, which were local and state laws, prohibited African American students from attending white schools in the state of Arkansas until 1957. African American children had all of the same rights and benefits of a white education, but they were only allowed to exercise those rights in a place that was separate but equal. In 1957 nine African American students challenged this ban on integrated schools in court. After the court ruled in their favor the state had to allow the children to attend an integrated school, because it was required to do so by a judge. One could wonder if the backers of Prop. 8 think that particular "social experiment" turned out well.

Opponents of same sex marriage often use the "family values" angle. Witnesses for the Proposition 8 sponsors are set to testify that governments have sanctioned [traditional] marriage as a way to promote responsible parenting. Prop. 8 lawyer Charles Cooper has already argued, "It is the purpose of marriage — the central purpose of marriage — to ensure, or at least encourage and to promote that when life is brought into being, it is by parents who are married and who take the responsibility of raising that child together". This has been a popular theme among Proposition 8 supporters. Protectmarriage.com states on their website that “monogamous and loving marriages ... provide the optimal environment to ensure the well being of children”. It remains to be seen how this argument will help their case. Unless the Proposition 8 backers intend to seek limitations on reproductive rights of gay people, children will undoubtedly continue to be born to un-married gay couples. It may seem to many that if the supporters of Proposition 8 were truly concerned with the well being of children, they would allow the multitude of gay couples who currently have, or may have children in the future to enter in to monogamous and loving marriages. If "governments sanction marriage as a way to promote responsible parenting", it leaves one to marvel at why the government would impose restrictions on marriage. One of the gay couples who are challenging the proposition said they "would love to have a family" however, "The time line for us always has been marriage first before family," "For us, marriage is so important because it solidifies the relationship..”

At one point judge Walker did note that President Obama's own parents would not have been allowed to get married in some states before the Supreme Court overturned state bans on interracial marriage in 1967, which may give some people hope that he realizes there is precedent for change in what is commonly accepted in regard to marriage.