Prop 8 Goes to Court in San Francisco Today

A federal court in San Francisco today will hear gay marriage arguments in a first of a kind non-jury trial today:

The nation's first trial on same-sex couples' right to marry - and the voters' power to forbid those marriages - begins today in a San Francisco federal courtroom that will serve as a forum for two diametrically opposed worldviews.

The main issue:

whether Prop. 8 violates the constitutional guarantee of equal protection by discriminating on the basis of sexual orientation and gender, or whether it validly reserves marital status for those who can naturally conceive children.

The Judge is Chief U.S. District Judge Vaughn Walker, a 1989 appointee of President George H.W. Bush. Barring a last minute intervention, you can watch the proceedings on a delayed basis on You Tube here.

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    Hmmm . . . (5.00 / 1) (#2)
    by nycstray on Mon Jan 11, 2010 at 06:15:30 AM EST
    whether it validly reserves marital status for those who can naturally conceive children.

    what about straight couples that can't?

    And (5.00 / 1) (#4)
    by jbindc on Mon Jan 11, 2010 at 06:42:42 AM EST
    Gay people can "naturally" have children if they choose to have $ex with someone of the opposite sex.  (I'm not saying they "choose" to be gay - I'm saying they are also functionally able to procreate "naturally" - whatever that means these days).

    It's interesting wording (5.00 / 1) (#6)
    by nycstray on Mon Jan 11, 2010 at 07:07:37 AM EST
    because "naturally" would have to be without any aid, or gay couples would fall right in. It would have to rule out adoption also.

    And it raises the question . . .  should older couples/women be allowed to marry? Are you required to have babies if you get married?lol!~


    And don't forget (5.00 / 1) (#7)
    by jbindc on Mon Jan 11, 2010 at 07:14:23 AM EST
    All those (heterosexual) couples who have fertility treatments and use surrogates.

    that's who I was originally thinking of (5.00 / 1) (#8)
    by nycstray on Mon Jan 11, 2010 at 07:16:40 AM EST
    what's more natural, an egg donor or fertility treatments?  :)

    I was thinking the same thing... (none / 0) (#13)
    by vml68 on Mon Jan 11, 2010 at 10:33:21 AM EST
    "interesting wording". I am no lawyer but surely if having babies "naturally" is the argument then they should be able to poke a million holes in that argument.

    I'm not a lawyer either (5.00 / 1) (#14)
    by nycstray on Mon Jan 11, 2010 at 11:14:29 AM EST
    but that sure jumps out and begs to be poked!

    Under the premise of (none / 0) (#12)
    by MO Blue on Mon Jan 11, 2010 at 09:49:24 AM EST
    reserving marital status for those who can naturally conceive children, seniors would be prohibited from getting married.

    I don't think there is a valid criterion ... (none / 0) (#20)
    by nyrias on Mon Jan 11, 2010 at 12:58:14 PM EST
    separating gay couples from straight couples except that they are of the same sex.

    And obviously using that would be an admission of bigotry and discrimination.


    That stupidly phrased question ... (none / 0) (#21)
    by Peter G on Mon Jan 11, 2010 at 10:00:04 PM EST
    is quoted in Jeralyn's post from the linked newspaper article, and was authored by a SF Chronicle reporter, not by the judge or the attorneys.  Criticizing its wording is pointless.  It is not technically (or in any other way) the legal question presented for decision in the case.

    Edwin Meese (yes, that Meese) (5.00 / 1) (#3)
    by andgarden on Mon Jan 11, 2010 at 06:23:35 AM EST
    writes in the Times today that judge walker is stacking the deck against Prop. 8. I actually agree with that point. I think the judge has telegraphed his intention to rule for the plaintiffs.  But what's more important than that is the way Walker is setting up the factual record.

    I'd like to see (none / 0) (#11)
    by lilburro on Mon Jan 11, 2010 at 08:24:21 AM EST
    what "social scientists" he wants rolled out.

    Nowhere to hide (5.00 / 1) (#5)
    by mmc9431 on Mon Jan 11, 2010 at 06:47:18 AM EST
    I'm glad to see the issue play out in the courts.  Using the ground up approach was destined to failure from the start. For gay rights to have any real meaning, they have to be guaranteed at the federal level. This includes pension benefits, social security and all the other safety nets that any other married couple have.

    It will be interesting to see how the Obama justice department handles this issue as it works it's way through the courts.

    I have a sinking feeling that if he was willing to throw the unions under the bus, gays haven't got a prayer.

    2 choices (5.00 / 1) (#15)
    by pluege on Mon Jan 11, 2010 at 11:31:48 AM EST
    Homosexuals should never have argued for the ability to marry. They should have always argued that the government can not bestow rights on some citizens and withhold them from other citizens. Doing so would have resulted in 2 choices:

     1) give homosexuals the right to marry exactly as heterosexuals do.

     2) get the government out of the marriage business, instead requiring all couples, homosexual and heterosexual to obtain civil union certificates from the government in order to have all the legal rights currently imbued in a marriage certificate. "Marriage" as a government-sanctioned condition would cease to exist.

    The second is optimal as it gives everyone the same rights in government-sanctioned relationships while freeing religions to define the word "marriage" and their accompanying definition and rituals anyway they like, i.e., they could practice their bigotry as they wish.

    I like the second option. (5.00 / 1) (#16)
    by nyrias on Mon Jan 11, 2010 at 11:45:58 AM EST
    It is quite enough to regulate the legal & property rights.

    It is silly for the government to regulate the use of the English word "marriage".


    they just (none / 0) (#17)
    by lilburro on Mon Jan 11, 2010 at 11:48:12 AM EST
    discussed that a little bit (Teddy Partridge / FDL)

    I don't like Olsen's argument of ... (none / 0) (#19)
    by nyrias on Mon Jan 11, 2010 at 12:46:52 PM EST
    "What the state has done is sanctioned and labelled a formal relationship called domestic partnership which has nothing to do with love."

    I would argue domestic partnerships has as much love in them as marriages.

    The crucial point is really this labeling will hurt (gays & lesbians) socially and emotionally (which it will) and not that it has any substantive effect on their property rights, and the actual relationships.

    And the state should have nothing to do with "love" anyway. That is between two (or multiple) people.


    It may just be my youth.. (5.00 / 1) (#22)
    by Raskolnikov on Tue Jan 12, 2010 at 04:56:55 AM EST
    ..but I really can't understand how any legal argument can be made supporting a ban of gay marriage.  Not one that should actually be considered by someone who has risen to that position of judge anyway.  I mean this honestly, it just seems completely indefensible to me from a legal standpoint.

    I wanted to stand tall (none / 0) (#1)
    by kidneystones on Mon Jan 11, 2010 at 03:30:47 AM EST
    but I was too busy caving in to my advisers.

    I've no idea how this is going to play out. I doubt very much gay folks are going to be treated with any more respect under the law than they are anywhere else. I've no clear idea why.

    I am interested in the CYA. I just ready Digby's absurd defense of the Presidential flip-flop on terror: "wasn't a big deal, the system worked. Scratch that, was a big deal, systemic failure. I'm a hero for admitting failure."

    What do you think the defense for not standing up for equal rights for gay and lesbian marriage will be?

    I'm sure that no matter how far under the bed Dem leaders manage to crawl, they'll insist it proves their courage.

    Them dust-bunnies can be dangerous.

    Marcy Walker, et al, from Firedoglake (none / 0) (#9)
    by leap on Mon Jan 11, 2010 at 07:57:15 AM EST
    will be live-blogging the proceedings, which will no doubt be stellar, given their live-blogging Scooter's trial. Especially so if live video broadcast is squelched. Ah, the Open Society. Grand.

    Well, technically (none / 0) (#10)
    by jbindc on Mon Jan 11, 2010 at 08:08:47 AM EST
    The proceedings are open, regardless of whether the video is available or not.  This is a huge test case, as cameras are not allowed in federal courts.

    Supreme Court (none / 0) (#18)
    by jbindc on Mon Jan 11, 2010 at 11:49:30 AM EST