Proposition 8 battle heads to two new fronts

by Eric Resnick

San Francisco--The California Supreme Court?s ruling to uphold the Proposition 8 marriage ban amendment is far from the final act on the issue.

The court?s 6-1 decision last week that it could not declare the measure unconstitutional, once it became part of the state constitution, is considered a severe blow to acceptance of same-sex marriage.

The May 26 ruling did leave intact the marriages of 18,000 couples who wed between the first decision for marriage equality a year ago and November?s ballot initiative.

But in the wake of the ruling came two new efforts to undo the proposition. The first is a move to put it back on the ballot as early as next year. The second is a more controversial federal lawsuit against the measure, likely to reach the U.S. Supreme Court.

Equality California and the Courage Campaign, two groups that campaigned against Prop. 8 last year, are leading the effort to repeal the amendment.

The membership of the two groups was polled, with 69 percent of Equality California?s membership and 83 percent of the Courage Campaign?s members voting to go for the repeal in 2010 rather than wait for 2012.

Equality California is trying to raise $500,000 to put 25 field organizers on the ground.

The Courage Campaign has begun running television ads asking questions like, ?What if we could vote to pay you less because of your gender or deny you housing because of your race??

The two groups believe that with no presidential race, adequate resources and attention could be put into a campaign for marriage equality.

The groups began their campaigns within 90 minutes of the decision. They were joined by Prop 8 supporters, who just as quickly began campaigns to defend their earlier ballot victory.

Californians upset with the ruling have also protested an Obama fundraiser in Hollywood, occupied county clerk?s offices in San Diego, marched on the streets of Los Angeles, and rallied around the state in protest.

A hundred protesters blocking Van Ness Avenue near the San Francisco Civic Center were arrested, then released after two hours.

The same day of the California high court?s ruling, a newly-formed group announced another court fight against it, this time in the federal courts.

Two high powered attorneys, former Solicitor General Ted Olson and David Boies, who argued the opposite sides in the historic 2000 Bush v. Gore case before the U.S. Supreme Court, filed suit on behalf of the American Foundation for Equal Rights and two couples prohibited from marriage.

The suit, in the U.S. District Court of Northern California, also includes a request for an injunction against Proposition 8, which would temporarily restore marriage in California.

The case is before Chief Judge Vaughn R. Walker, a George H.W. Bush appointee.

The suit claims, from the 1967 Loving v. Virginia decision that struck laws prohibiting miscegenation, that ?the Fourteenth Amendment protects the right of all citizens to make personal decisions about marriage without unwarranted state intrusion.?

The suit also cites the 1996 Romer v. Evans decision that prohibits gays and lesbians from being singled out as a class for different treatment under the law, and the 2003 Lawrence v. Texas decision that due process protects the intimate personal relationships of gay and lesbian individuals.

The federal court path has not been well received by LGBT advocates who fear that the suit is headed for a U.S. Supreme Court likely to rule against same-sex marriage. Such a decision would set efforts back many years by adding a Supreme Court ruling to the existing landscape of laws and state constitutional amendments against marriage equality.

The ACLU published a booklet titled Make Change Not Lawsuits, which makes the case against a federal suit. They were joined in the effort by Gays and Lesbians Against Defamation, who won the right to marry in Massachusetts, Lambda Legal, the National Center for Lesbian Rights, the Equality Federation, Freedom to Marry, the Gay and Lesbian Alliance Against Defamation, the Human Rights Campaign and the National Gay and Lesbian Task Force.

A day after the suit against Proposition 8 was filed, the Alliance Defense Fund of Scottsdale, Arizona, an anti-LGBT legal advocate involved in the effort to pass Proposition 8, asked Judge Walker to allow it to oppose Olson and Boise.

Walker has set a July 2 hearing on the injunction. If he rules in favor of the motion, it would block Proposition 8 from denying any more marriages until the case is through the federal courts, which could take three years.

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