Prop 8 challenge will set precedent for future civil rights cases
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Student Life: The U.S. District Court for the Northern District of California is about to become the battleground for a momentous challenge to California’s Proposition 8, the state’s constitutional amendment banning gay marriage. Led by former U.S. Solicitor General Theodore Olsen and high-profile litigator David Boies, former opponents in the 2000 Bush v. Gore electoral contest, the Perry v. Schwarzenegger challenge to California’s infamous amendment is set to go to trial in January. The Perry case is in response to an amendment to the California Constitution. It inserts the text “Only marriage between a man and a woman is valid or recognized in California.” This is, to be blunt, unconstitutional. Contrary to the rather conservative view that marriage is a states-rights issue, the U.S. Constitution provides in the Fifth Amendment that “…no person shall be…deprived of life, liberty, or property.” Similar sentiments are echoed in the Declaration of Independence. Marriage is, according to the unanimous 1967 Supreme Court opinion in Loving v. Virginia, “…one of the basic civil rights of man…” Being so fundamental a right, it is the purview of the federal government, according to Thomas Jefferson in the Declaration, “to secure [this and other unalienable/fundamental] rights” for the people.
The lawsuit has stirred up considerable criticism on both sides of the issue. Even traditionally pro-LGBT organizations have opposed the lawsuit and attempted to halt the legal challenge, afraid of the potential ramifications of a loss on the Supreme Court level in the likely case of an appeal. Indeed, on a superficial level, it would appear as though the Supreme Court is tilted toward a more conservative ideology, a view sustained by the supposed proclivity of justices Roberts, Alito, Scalia and Thomas toward ruling together on constitutional issues by way of so-called “conservative” legal interpretations.
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