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Is California’s Proposition 8 all but dead?

WASHINGTON – Attorneys and plaintiffs in the historical legal challenge against California’s Proposition 8, the state law that took away marriage equality in the Golden State, are brimming with supreme confidence ahead of the oral hearing on Tuesday morning at the nation’s high court.

The nine justices of the U.S. Supreme Court on Tuesday will grill plaintiffs and defendants of Prop 8 as well as the Obama Administration on the lower court ruling by federal Judge Vaughn Walker that the state law is unconstitutional. That ruling was upheld by the Ninth District Court of Appeals.

The high court is expected to announce its decision on the Prop 8 appeals case by the end of June, bringing to close one of the most intensely watched cases in recent history.

On Thursday, the two California couples who sued for the right to marry and attorneys who are involved in the case participated in a national teleconference to discuss next week’s historical moment.

“This has been a remarkable four-year journey,” said Adam Umhoefer, executive director for American Foundation for Equal Rights (AFER), the sole sponsor of the Hollingsworth v. Perry, as the Prop 8 case in known.

Umhoefer and others on the conference call marveled at how rapidly public opinion has shifted over the past four years in favor of legalizing same-sex marriage, now approved by 58% of Americans, according to the latest polling.

“Proposition 8 is unconstitutional,” said David Boies, lead co-counsel with the plaintiffs. His co-counsel, Ted Olson, could not attend the session because he was preparing for Tuesday’s oral hearing.

“It is about discrimination,” he added. “This is about the denial of basic civil rights … when two loving, committed couples -- one couple raising four boys – who are caring to each other and their families and simply want the right to marry.”

Meet the California couples who sued

The four plaintiffs are Kris Perry and Sandy Stier of Berkeley, who have two boys in high school and two boys in college; and Paul Katami and Jeff Zarrillo of Burbank.

Perry and Stier said they are relieved that the case is finally winding down to a conclusion, and see the potential results as a legacy in the fight for full equality by gay and lesbian Americans.

Stiers expressed her appreciation and admiration for how the case has united so many diverse groups of people, gay and straight. She talked about how powerful it was “as people of all different walks of life came together for a common cause.”

The lesbian couple wed in 2004 when San Francisco began marrying gay and lesbian couples, but a court overturned the marriages as being illegal.

Perry noted that much has changed since 2004, when the idea of same-sex marriage was overwhelmingly opposed by a majority of Americans. “The shift [in public opinion] that has happened in this country has been dramatic,” she said, adding that she expected to be “overwhelmed” by the high court’s ultimate decision.

Both couples stressed that they started this journey with a simple request: the right to get married.

“We’ve been waiting for a long time to get married and to celebrate with our families and children,” Perry said, explaining that she expected the high court to side with the lower court ruling.

Zarrillo quoted Harvey Milk, the slain gay-rights leader from San Francisco, saying he never gave up hope that there will be “inclusion and equality for all.”
He talked about how the language of “marriage” is important to gay and lesbian couples, that it was more than just a word. He said he wanted to call Katami his “husband” and was sure that Perry and Stier would chose the word “wife.”

Zarrillo said the long legal fight has brought him much closer to Katami, and that they can’t wait to get married in California.

What to look for at the high court

“Everything seems to be breaking in favor of same-sex marriage,” plaintiffs’ counsel Theodore J. Boutrous Jr. said, noting that on Thursday the American Academy of Pediatrics published papers supporting marriage equality and adoption rights for LGBT Americans.

San Francisco City Attorney Dennis Herrera, who has filed numerous briefs in support of AFER’s case, said he expected the Supreme Court will side with the lower court ruling.

“We have confidence of the court knocking down Prop 8,” Herrera said, going so far as thinking the high court will make a 50-state solution on marriage equality.

The AFER attorneys talked about the 14th Amendment and the Equal Protection Clause, key arguments they have used in litigating the case. They also addressed the issue of legal standing, which many experts believe gives the justices an escape clause in case they do not want a 50-state solution a la Loving v. Virginia in 1967 that knocked down the law that banned interracial marriage.

AFER initially argued that the anti-gay group that is defending Prop 8 did not have legal standing to appeal the federal court ruling that the state law is unconstitutional because it is not the State of California, which accepted the ruling and refused to appeal it to the Ninth Circuit. However, the California Supreme Court said the anti-gay group had legal standing and the Ninth Circuit allowed the appeal to take place.

The attorneys said even if the Supreme Court tosses the Prop 8 case based on legal standing, then the lower court ruling will stand and California gay and lesbian couples would be allowed to marry as soon as all the legal paperwork could be completed.

The high court could also side with the Obama Administration, whose brief argued that states that allow civil unions should also allow same-sex marriage. Such a ruling would mean that California and the seven other states permitting unions would be affected.

Boutrous said the AFER attorneys would be OK with that decision because it would only be a matter of time before all the laws banning marriage equality would fall.

"Even if the decision is more narrowly crafted, the domino effect will have begun. It will send a strong message that these discriminatory laws violate the Constitution," he said.

Boies concurred, saying that such a limited ruling would only delay, but not stop, the momentum that has built in supporting same-sex marriage.

"That would simply put off ... the broader decision."

Reporters from mainstream and LGBT media could not get the AFER legal team to budge on the viewpoint that Prop 8 is all but dead. The Wall Street Journal asked if the “California solution” is handed down, would AFER pursue further legal action against states that ban marriage equality.

After a burst of laughter, AFER attorney Boutrous answered: “We will cross that bridge when we get to it.”

Ken Williams is Editor in Chief of SDGLN. He can be reached at ken@sdgln.com, @KenSanDiego on Twitter, or by calling toll-free to 888-442-9639, ext. 713.