Prop. 8 trial: Did animosity drive California's gay marriage ban?

Lawyers seeking to overturn Prop. 8, California's gay marriage ban, attempted to show Wednesday that the law is unconstitutional because it is the product of animosity toward gays and lesbians.

By , Staff writer

Anti-gay marriage activists were acting out of animosity toward gays and lesbians when they pushed to pass Proposition 8, the state's ban on gay marriage, lawyers arguing against the law attempted to show Wednesday.

The animus, or animosity, argument is a key part of the federal lawsuit against Prop. 8, because the Supreme Court has ruled that animus against any group is not a constitutional basis for forming laws. That argument was the primary issue on Day 3 of the trial.

In his prepared opening remarks, Theodore Olson, one of the attorneys representing the two same-sex couples that are challenging Prop. 8, said: “Proposition 8, and the irrational pattern of California’s regulation of marriage which it promulgates, advances no legitimate state interest. All it does is label gay and lesbian persons as different, inferior, unequal, and disfavored.”

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The argument intends to build on the Supreme Court ruling in Romer v. Evans, a 1996 case concerning a Colorado constitutional amendment denying gays and lesbians any special rights or protection under the law. The ruling held that the animus expressed toward a class of people in this case was unconstitutional because it lacked “a rational relationship to legitimate state interests.”

A winning argument?

This is only one of the legal strategies that Mr. Olson and his fellow attorneys are exploring during the three-week trial. They also claim that the ban denies gay and lesbian couples the right to equal protection under the 14th Amendment of the US Constitution.

The animus argument could prove difficult, says Marc Spindelman, a law professor at Ohio State University. “Even if it’s true that the proponents of Prop. 8 are motivated by animus, there’s a question if that’s enough to invalidate a majority of California’s votes," he says.

Yet it was at the center of the day's activity, as plaintiffs' attorney Therese Stewart sought to impugn the motivations of the official proponents of Prop. 8.

The Tam letter

The plaintiffs' lawyers showed a video deposition of Hak-Shing William Tam, executive director of Traditional Family Coalition, who worked with Protect Marriage.com, the official campaign that sought to ban same-sex marriage in California.

Mr. Tam wrote a letter to Asian-Americans encouraging them to vote in favor of Prop. 8. It said voting for gay marriage was akin to legalizing prostitution and could eventually lead to legalizing underage sex.

Lawyers for Project Marriage.com said Mr. Tam's efforts were not officially sanctioned by the Prop. 8 campaign, and the group did not have anything to do with Tam’s writings. Tam is expected to testify further later in the week.

Yale Professor George Chauncey, who has studied gay and lesbian discrimination, testified on behalf of the plaintiffs that Tam’s writing were consistent with a long history of antigay rhetoric based on stereotypes.

In the days and weeks to come, lawyers representing supporters of Prop. 8 will have the opportunity to argue that many legitimate concerns about marriage, religion, and tradition motivated their clients and California voters to pass the gay marriage ban.

The case continues Thursday.

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