Although the California State Supreme Court ruled last spring that the results of Proposition 8 must stand, the work to override it continues, sometimes from the most unlikely sources. Attorneys Ted Olson, a Republican (left), and David Boies, a Democrat (right) argued opposite sides before the court in the Bush v. Gore election case. Now they have joined forces in trying to convince the court that Proposition 8 is unconstitutional because it singles out a specific class of Americans for discrimination. The federal trial will begin on January 11.
One odd turn of events in the trial is that the State of California will not defend Prop 8 in court. California's Atty. General, Jerry Brown, has stated that he agrees with Olson and Boies and therefore can't argue the case. As a result, the court has allowed organizers of the Prop 8 ballot initiative to defend the case.
Right now the sides are debating whether or not the trial should be televised. The anti-Prop 8 people (those who favor same-sex marriage) want the trial on TV while those supporting Prop 8 (and therefore opposing same-sex marriage) have argued against it. Their reason? They fear that they will be subject to gay harassment and even violence if seen on TV. (I'll refrain from a snide comment about the enormous problem of gay on straight hate crimes here.)
The case will be heard by Judge Vaughn Walker in a San Francisco District Court. It is expected that Judge Walker will rule that Prop 8 is unconstitutional, and that the case will be then sent to the 9th US Court of Appeals. Many people believe that this court will agree with Judge Walker, thus sending the case to the US Supreme Court.
This is where some gay legal scholars disagree with Olson and Boies. They fear that the US Supreme Court isn't ready -- especially in its present makeup -- to side with us. Of course, the case is likely to take a few years to get to the US Supreme Court, and the makeup could change.
Stay tuned. It promises to be a bumpy ride.