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Posted Nov. 16, 2010

Lawyers Debate Legality of Proposition 8 Ban on Same-Sex Marriage

Extramural Moot Court Winners
Jordan Lorence, left, debated Matt McGill on Proposition 8.

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Contact: Rob Seal

Lawyers involved in California’s Proposition 8 litigation debated a recent federal court ruling striking down a state ban on same-sex marriage before a packed Caplin Pavilion on Nov. 8.

There is no rational basis for the banning of same-sex marriage, according to Matt McGill, a lawyer who joined with the American Foundation for Equal Rights to challenge Proposition 8.

McGill debated Jordan Lorence, a lawyer from Alliance Defense Fund, who supports Proposition 8 and a ban on same-sex marriage.

Both speakers agreed that marriage is beneficial to society, but had opposing definitions of the institution. Lorence cited the universality of marriage across history and cultures but defined it as a public institution of “one man and one woman that’s publicly regulated.”

A marriage that consists of a mother and father raising children “shows the best results,” Lorence said.

In 2008, 18,000 same-sex couples were married in California, according to McGill, but Proposition 8 nullified those marriages.

“There may be euphemisms to describe this type of disparate treatment, but it’s most conventionally known as discrimination,” McGill said.

Proposition 8 was a ballot initiative in the November 2008 elections in California that restricted the definition of marriage to include only opposite-sex couples. Having passed, the initiative became an amendment to the state’s constitution.

U.S. District Court Judge Vaughn R. Walker struck down Proposition 8 in August of this year. In his opinion, Walker found the law an unreasonable exclusion. “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” he wrote.

Despite his ruling overturning Proposition 8, Walker stayed the ruling until the case is appealed. He later lifted the stay, but the Ninth U.S. Circuit Court of Appeals indefinitely extended the stay.

Lorence argued that the case should not have gone before the court. “In fact, there were times when I was at the trial that I felt I was at a legislative hearing as opposed to a judicial proceeding,” he said.

McGill, as did Walker in his opinion, said the equal protection clause of the 14th Amendment invalidates Proposition 8.

“Since Brown v. Board of Education, it’s been the basic command of the equal protection clause that when a state discriminates against a group of citizens it must have a good reason for doing so,” McGill said.

The absence of any specific constitutional guarantees for a right to homosexual marriage is enough to uphold Proposition 8, according to Lorence, who quoted Judge Richard Posner of the Seventh U.S. Circuit Court of Appeals: “If there is such a right it will have to be manufactured by the justices out of whole cloth.

“The exercise of so freewheeling a judicial discretion in the face of adamantly opposed public opinion would be seriously undemocratic.”

McGill attacked the notion that the legality of same-sex marriage is undemocratic. “The 14th Amendment means that equal protection of laws is not subject to a plebiscite. We don’t put our constitutional rights up to a vote,” he said.

Legal precedent is also on the side of same-sex marriage, according to McGill.

“Fourteen years ago, Romer v. Evans declared that moral disapproval of homosexuality was not a legitimate basis for legislation.”

“Why would we treat laws discriminating against gays and lesbians with any less suspicion than we cast upon laws that discriminate on the basis of race, or sex or any other circumstance such as alienage or illegitimacy?” McGill asked.

The program was sponsored by the Lambda Law Alliance, the Federalist Society and the American Constitution Society.

Reported by tim arnold