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...denies gays the fundamental right to marry, which the California Supreme Court held to be guaranteed. They will have to beat arguments from the other side that point out that no state prevents gays from marrying - like everyone else, they just have to choose a partner of the opposite sex. And they will have to convince Walker that civil unions, which remain legal in California, are not an adequate substitute...
Next the question would be whether banning gay marriage achieves a legitimate government interest - and defenders of Prop 8 included more than a dozen such goals in a preview of their case filed last month. They argue that allowing same-sex marriage would weaken society and erode support for traditional marriage. They also say that it could lead to greater acceptability, and eventually legal recognition, of polygamy and marginalize the role of biological parents...
Some state courts have found that laws forbidding gay marriage achieve no legitimate interest at all. And others have ruled that while same-sex marriage bans may be rational, they can't survive a higher scrutiny that courts reserve for special classes of citizens - such as racial minorities and, on a more limited basis, women. No federal appeals court has so far held that gays and lesbians as a class are entitled to the special protection that requires heightened scrutiny of laws that discriminate on the basis of race or religion, for example. That may sound like a fine legal...
...issues about the legal status of gay people remain undecided in federal law," Jennifer Pizer, director of the National Marriage Project for Lambda Legal, told TIME. "Do all people have the same right to marry regardless of sexual orientation? ... Should sexual-orientation discrimination be considered a form of sex or gender discrimination? Judge Walker may decide some or all of these questions, and the Ninth Circuit may decide them differently. Whatever happens is likely to have great significance...
...union of a man and a woman," wrote Charles Cooper, who served in the Reagan Administration's Justice Department with Olson, in his trial brief Dec. 7. "Indeed, until this decade, every State, nation and civilized society in every period of history had always limited marriage to opposite-sex relationships ... Contrary to Plaintiffs' contentions, the traditional definition of marriage does not reflect animus against gays and lesbians - in California or anywhere else." (See more about gay marriage...