Keen questions from judge in Prop. 8 closing arguments

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Creative Commons photo by Kenneth Yeung, www.thelettertwo.com.

Five months after it began, closing arguments in the Perry v. Schwarzenegger trial are taking place today.

U.S. District Court Judge Vaughn Walker, who is deciding the case, recently submitted dozens of probing legal questions for the teams representing both sides in the case to address in this final phase.

“Can the court find Proposition 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act?” Judge Walker has asked the plaintiffs’ counsel in the case.

Following the presentation of closing arguments, Walker is expected to deliberate for weeks before he issues a ruling. Just how many weeks is hard to say. Testimony in the trial ended in late January, and since that time, Equality California and the ACLU were required, in discovery, to produce documents regarding their campaign to fight Proposition 8. Apart from that action, and a request from the defense to have portions of witness Hak-Shing Tam’s testimony struck from the record, there have been no major developments in or outside of court chambers or meetings.

Regardless of which way the ruling goes, an appeal to the Ninth Circuit Court of Appeals is expected. From there, it’s also highly likely that the case will be appealed to the U.S. Supreme Court. Because the Defense of Marriage Act is current federal law, the issue of states’ rights versus the federal government’s authority will play an important role in the case.

In weighing his decision, Walker wants to see evidence that either upholding Proposition 8, keeping the same-sex marriage ban in place — or, alternatively, disregarding it and allowing same-sex couples to marry — will benefit California.

He also will look at what the intent of voters was in passing the proposition, and how that might differ from what was actually enacted and the outcome of that.

In closing arguments, attorneys from both sides will need to revisit the issue of whether or not gay people as a community hold access to political power in the U.S. This speaks to the concern of whether or not the 14th Amendment of the Constitution and the Equal Protection clause should apply in the case.

If Walker does invoke this clause in his ruling, it means the court will recognize marriage between the couples as a constitutionally granted civil right, which cannot be revoked by the will of California voters, as it was in Proposition 8. If he decides it does not meet the criteria required for judging it as a civil rights issue, the ruling could be more complicated. The judge also will be reviewing whether or not the California constitution guarantees the right to marry, and whether the voters of California have the right to decide that through the initiative process, as they did with Proposition 8.

The most pointed question the defendants supporting Proposition 8 will need to address is why moral objection alone should warrant discrimination that is based on sexual orientation — assuming the absence of other substantive justifications — regardless of whether or not sexual orientation is determined by the court to be a matter of choice.

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