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Placing Bets On A Post-DOMA/Prop 8 World

25 Mar

lgbt worldLyle Denniston has another of his redoubtably informative backgrounders on the politics of SCOTUS’ hearings on the Defense of Marriage Act and California’s Proposition 8 on Tuesday.

For Tuesday’s hearing, under a one-hour schedule, the Court is not dividing the hearing between the issues of its authority to decide the case and the constitutionality of Proposition 8.  Charles J. Cooper, of the Washington, D.C., law firm of Cooper & Kirk, will appear first for the sponsors of the ballot measure, with thirty minutes of time.  He will be followed by the lawyer for the two same-sex couples who challenged that provision, Theodore B. Olson of the Washington office of Gibson, Dunn & Crutcher, with twenty minutes.  Finally, the Obama administration’s lawyer, Solicitor General Donald B. Verrilli, Jr., will have ten minutes to make the government’s case as an amicus.  The Chief Justice is likely to allow the hearing to go on beyond an hour.

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More than twelve years ago, California voters went to the polls and approved Proposition 22.  That changed a state law dealing with family relationships to provide that “only marriage between a man and a woman is valid or recognized in California.”  In May 2008, the California Supreme Court ruled that Proposition 22 violated the state’s constitution, which guaranteed equal protection of the laws.  In response, more than 18,000 same-sex couples obtained licenses and were married.

In the November 2008 election, however, the state Supreme Court ruling was overturned at the ballot box by the state’s voters’ approval of Proposition 8.  It won by a margin of 52.5% to 47.5% — about 5.4 million “yes” votes to about 4.9 million “no” votes.  That changed the state constitution (not just a state law) to read exactly as Proposition 22 would have made state law to read: “Only marriage between a man and a woman is valid or recognized in California.”  The provision went into effect the day after the election, and same-sex marriages in the state stopped.

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