Family Law

The validity of California's Proposition 8, which bans same-sex marriage, is being challenged in a trial in U.S. District Court in San Francisco.  The trial is drawing national attention because it presents a U.S. Constitutional challenge to the legitimacy of state laws banning same sex marriage.  The case has already reached the U.S. Supreme Court, which overturned the trial judge's decision to post video of the trial on YouTube.

According to cnn.com:

The case will likely head to the U.S. Supreme Court no matter what the outcome. It is expected to set legal precedents that will shape society for years to come and result in a landmark court decision that settles whether Americans can marry people of the same sex.

In legal circles and across the Internet, it has been dubbed this generation's Brown v. Board of Education, the case that led to the Supreme Court decision that outlawed segregation in schools. Some say it could be the biggest ruling since Roe v. Wade, which tackled abortion. It also closely echoes the Supreme Court case that overturned bans on interracial marriage.

"It does not weaken the fabric of our communities to grant them these basic familial rights -- it strengthens them," said Chad Griffin, President of the American Foundation for Equal Rights, when the lawsuit was announced in May. "It does not undermine marriage to extend to these loving couples -- it affirms it."

"This is one of the threshold civil rights issues of our generation," he said. "Justice is on our side and we're about to reclaim it."

Representing them are two high-powered attorneys, Ted Olson and David Boies. They're an unlikely pair -- former courtroom adversaries best known for being on opposing sides of the "hanging chad" dispute of the 2000 presidential election in Florida.

Olson, a staunch political conservative who defended the government's positions as solicitor general, was a choice that surprised many supporters of the case for same-sex marriage. He said there's nothing inconsistent about him fighting for the rights of same-sex couples.

"They call it a teaching moment these days," he said. "This gives us an opportunity to explain how wrong it has been to deny rights to individuals on that basis."

Republican California Gov. Arnold Schwarzenegger and the state's Democratic Attorney General Jerry Brown are defendants in the lawsuit because of their positions in California government. However, both have said they would not defend the suit. Brown filed a legal motion saying he agreed with the position advanced by Olson and Boies. Schwarzenegger has taken no position.

Andrew Pugno, a lawyer for an organization called Protect Marriage, the group that came up with Proposition 8, said he believes the issue was solved when the people of California made their voices heard in the voting booth.

"Seven million Californians voted to preserve or restore what marriage has meant since the beginning of time," he said. "If they're not permitted to do something as basic as that, then there's something, really something, wrong with our system."

For Pugno and supporters on his side of the issue, keeping the definition of marriage as a union between a man and a woman is what makes sense.

"Marriage legally and socially has always been a social public institution that affects far more than the adults involved," he said. "We are taking a position that society has a very good reason for limiting marriage the way it does. ... The relationship of a man and woman bears a relationship to child-rearing that no other relationship can duplicate."

The Proposition 8 vote is part of a long line of seesaw rulings, court cases, debates and protests in California over the issue.

After California's Legislature approved same-sex marriages [sic], voters took to the polls in November 2008; a slim majority -- 52 percent -- approved of banning the marriages. In May 2009, California's highest court upheld the ban, but allowed about 18,000 unions performed before the ban to remain valid.

This is high legal drama.  Please click here for the original cnn.com article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.