Kyle Bell

In 2008, the California Supreme Court ruled that banning gay marriage in the Golden State was unconstitutional. The basis of this ruling was simple: the act of banning marriage for gays amounted to creating a status of second class citizens. Gay activists applauded the ruling, while conservatives derided it as an assault on traditional values. Soon after the ruling over 18,000 gay Californians tied the knot, committing to their relationship with one another just as straight Americans would.

The victory for gay Californians was short lived. Voters approved Proposition 8 during the fall 2008 election, banning gay marriage once again as an amendment to their state constitution. While the margin was close, only 52 percent of Californians voted in favor of Prop 8, compared to over 60 percent just eight years earlier, it made little difference to those that were once again unable to achieve marriage equality.

The battle continued beyond Election Day. While by 2009 gay marriage was legalized in Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont, Californians found themselves going backwards in the equality movement. A court challenge with the California Supreme Court was filed shortly after Prop 8 became law. The argument of the pro-marriage community was that Prop 8 first needed approval from the legislature before it could be approved by voters, since it fundamentally changed a basic right of citizens.

The California Supreme Court sided with supporters of Prop 8. As Lisa Leff of the Huffington Post put it, “While gay rights advocates accused the court of failing to protect a minority group from the will of the majority, the justices said that the state’s governing framework gives voters almost unfettered ability to change the California Constitution.” However, the ruling left unchanged the 18,000 gay marriages that had taken place between the initial Supreme Court ruling and Election Day of 2008.

The Prop 8 fight was seemingly over. Gay rights activists debated amongst each other whether a push to overturn Prop 8 should be put on the ballot in 2010 or 2012. Some argued that the quicker, the better, while tempers were still flared and gay rights activists were ready to go. Others argued that losing again in 2010 would set back the gay rights agenda more than Prop 8 did. Instead, waiting until 2012 would be the preferable approach, allowing a carefully crafted campaign to be built.

While Californians bickered amongst themselves about a way forward, two powerful Washington D.C. attorneys were setting their sights on the Golden State. Former Bush Solicitor General Ted Olson, a conservative by any standard, joined forces with Democrat David Boies to challenge Proposition 8 in federal court. The two formerly faced off in the U.S. Supreme Court case Bush v. Gore, which ultimately decided the 2000 presidential election.

These unlikely allies filed their lawsuit in U.S. District Court in Northern California on behalf of two gay men and two gay women. “Our Constitution guarantees every American the right to be treated equally under the law,” Boies said in May 2009. “There is no right more fundamental than the right to marry the person that you love and to raise a family… The courts exist to reverse injustices… This is not a question of state law. It’s a question of federal Constitutional law.”

The case before the U.S. District Court, which is in its final stages, wrested on the history of discrimination against gays in the United States and the equal protection clause of the Constitution. Both Boies and Olson argue that Proposition 8 violates basic constitutional protections. “This case is about the equal rights guaranteed to every American under the United States Constitution,” Olson said.

As Boies and Olson have pointed out, Prop 8 and the California Supreme Court ruling that followed created three distinct classes of Californians: straights that were free to marry (and divorce) whenever they want; the 18,000 gays that were married between their initial ruling and Prop 8 passing who were allowed to keep their marriages; and every other gay Californian who were not entitled to any marriage rights at all. Any reasonable interpretation of this ruling is that it violates basic constitutional principles of equal justice.

The hope of these attorneys is to eventually see the U.S. Supreme Court hear their case. This is, of course, more than just about California. It is about the legal rights of all Americans. I personally find it ironic that the act of banning gay marriage in Proposition 8 could ultimately lead to the opposite – legalization across the nation. A favorable ruling from the Supreme Court would mean that gays and lesbians could marry in every state. Such a reality depends on the verdict of one judge in California and the U.S. Supreme Court to protect the rights of this nation’s citizens.