Berman & Asbel, LLP

Prop 8 - Unlawful Discrimination or Rational Law - case argued today

The Prop 8 gay marriage ban case is being argued today in California.  The parties challenging the law are being represented by a team that brings together former Bush v. Gore adversaries Ted Olsen and David Boies.  As described in a Reuters report the District Judge will be considering the reasons why California voters passed Proposition 8 - is there a rational basis, or a good reason to have this law or is it motivated by a desire to discriminate against a certain class of people?  In their brief to the Court, Olsen and Boies write, "Voters' unfounded and discriminatory stereotypes are not a substitute for proof that a law actually furthers a legitimate state interest."   Olsen and Boies also argue that same-sex couples who marry improve both their health and wealth, their children benefit and the state itself benefits.

As reported by the San Jose Mercury-News lawyers from both the offices of California Governor Arnold Schwarzenegger and Attorney General Jerry Brown declined to make any argument to defend the state law.

Defense of the law is led by  Charles Cooper who argues that allowing same-sex couples to marry will weaken the institution of marriage by removing the "special encouragement" for couples to stay together and raise children.  Cooper further writes, "These changes are likely to reduce the willingness of biological parents, especially fathers, to make the commitments and sacrifices necessary to marry, stay married, and play an active role in raising their children."

After reading this, I have to wonder how much Mr. Cooper had to strain to come up with this argument.   As an attorney having worked in family law for over 20 years, I have personally observed that limiting marriage to heterosexual couples has not served to keep families together as evidence by the large docket of divorce and child custody dispute cases in the courts today - and in my office.  I fail to see how someone can take seriously the idea that by allowing certain individuals to marry that someone who has nothing to do with them will somehow feel less motivated to get married or to be a good spouse or parent.

It is worth noting that none of the court decisions or statutes which have legalized same-sex marriage require any religious authority to celebrate, sanctify or officiate same-sex marriage - it would only be addressed at the laws and actions of the government.  Thus nobody whose religious beliefs oppose same-sex marriage need fear that the government will try to force their church to facilitate these marriages.

Arguments are taking place today (June 16).  Whatever the decision of the District Court, it will almost certainly be appealed by the losing side and could eventually end up in the U.S. Supreme Court along with a number of other same-sex marriage cases pending around the country.

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