A federal lawsuit challenging California's anti-gay marriage Proposition 8 was officially launched this week.
Variety's great "Washington and Wilshire" blog on the entertainment industry and politics has some good details, because a very Hollywood-centric coalition is behind this suit:
What will be a dramatic component of a trial, if it proceeds that way, is an effort to put the campaign itself under scrutiny. The No on 8 side claimed often that ads aired by ProtectMarriage used scare tactics, like the threat that churches would be forced to perform same-sex marriages and teachers would have to somehow add it to their curriculum.
Ted Olson and David Boies, representing the plaintiffs in the case backed by entertainment industry activists, say in a brief filed on Monday that they plan to seek documents "relating to Prop 8's genesis, drafting, strategy, objectives, advertising, campaign literature" and other communications with each other and their donors and supporters. Their goal is to prove that "no compelling or even rational basis" existed to pass Prop 8....
A trial also would focus on the question of whether homosexuality is "immutable," i,e, whether it can be changed. That is a central part of Olson and Boies challenge in proving that gays are a special class to fall under equal protection. Prop 8 proponents say in their brief that they plan on bring in experts, and to subpoena marriage and domestic partnership records in California. The idea is to spot contradictions, by seeing who has been in a same-sex partnership who was previously or subsequently married to someone of the opposite sex.
The pro-Prop 8 defendents will also attempt to argue that homosexuals shouldn't qualify as a legally protected class since discrimination against them is allegedly very rare now--despite Prop 8's victory itself seeming to cast doubt on this.
Another entry from "Washington and Wilshire" explores the small fights between the entertainment industry group behind this federal suit and other elements of the gay rights community:
This suit is funded and directed by a newly formed group, the American Foundation for Equal Rights, that boasts Rob Reiner, Bruce Cohen and Dustin Lance Black among its board....But the group is butting heads with other orgs that, ironically, have the same goals. This week's hearing could determine who will be involved in pursuing this suit, and provide a roadmap on how it will progress....
A trio of legal groups -- Lambda Legal Defense & Education Fund, the ACLU Foundation and the National Center for Lesbian Rights -- have long been pursuing same-sex marriage and gay rights cases in California and other states, and want to join in the suit...
....reps of the three groups warned that the suit posed too great of a risk. They had been pursuing same-sex marriage in state courts, and feared a federal suit could eventually land in the U.S. Supreme Court -- where an adverse ruling could establish precedent and deliver a major setback. Yet on June 25 the trio of groups filed briefs in support of many of the suit's claims. The next month, they sought to become a formal part of the case.
A federal lawsuit isn't the only way to fight Prop 8. A later initiative could reverse it, the same way it got passed:
The Courage Campaign, a progressive org led by Rick Jacobs, is going ahead with plans to pursue an initiative next year. However, Equality California, one of the leaders in the fight against Prop. 8 last year, announced that it would wait longer to pursue an initiative in 2012. It cited current polling numbers and fund-raising difficulties.
Lambda Legal's explanation of their desire to be part of the Olson/Boies anti-Prop 8 suit. Their request was denied by the judge in the case today, says the Associated Press, and the suit will have its trial date in January.
The New York Times profiled the traditionally conservative movement lawyer Ted Olson from the case, an unlikely champion of the cause of gay rights.
City of Angles on the May failure of a state lawsuit to overturn Prop 8.
The image associated with this post was taken by Flickr user ProComKelly. It was used under user Creative Commons license.
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Thanks for the update, Brian. It's good to know that continued legal action is in the works, and it's hard not to be fascinated by Ted Olson's involvement.
But the focus on immutability in the planned case is troubling. It seems to me that sex, gender, and sexual orientation are all fluid categories in at least three senses: they're not naturally binary, but rather spread along various continua; they vary across cultures; and there's no guarantee that any one will be the same throughout a person's lifetime.
Those of us who are committed to LGBT legal equality and social inclusion don't do our cause any favors if we rest our case on arguments about immutability. Such arguments leave clearly bisexual people out in the cold. And they too often seem to imply that LGBT people need to make excuses for their sexuality—as if it would be problematic and objectionable if they could choose to do other than they do, but that, since they can't, the majestically tolerant majority ought to accommodate them. This approach is question-begging. If there's nothing wrong with same-sex sex, then it needs no hat-in-hand apologies of the sort immutability-based arguments seem to involve.