Proposition 8 trial begins

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The fight over gay marriage resumes in California today with Perry v. Schwarzenegger. Two same sex-couples are suing the enforcers of California’s Proposition 8 on grounds that the gay marriage ban violates their federal constitutional rights. Proposition 8 had ended five months of legal same-sex marriage in California.

The case may lay the groundwork for an appeal to the U.S. Supreme Court.

“The two main arguments are a liberty argument and an equality argument,” said Kenji Yoshino, professor of law at New York University. “So the liberty argument says that there’s a fundamental right to marry and the equality argument says that this is discrimination against gay people.”

While there is no mention of the status of marriage in the Constitution, Yoshino doesn’t think that fact should be overstated. “There are unenumerated rights that still have a constitutional dimension, like the right to privacy or the right to reproductive autonomy in this country, and so marriage is indeed one of those rights.”

In terms of how the court will weigh the value of marriage versus the value of civil unions, Yoshino says it comes down to whether same-sex couples are losing out on actual benefits by not being able to marry.

“Essentially what we have is, with respect to goods or benefits, same sex couples are being treated equally,” said Yoshino. “So what we’re really talking about is the symbolic benefit of marriage and whether or not withholding that symbolic benefit from gay couples is in itself an equal protection violation.”

Some gay rights advocates are concerned that if the case goes against Proposition 8, a Roe v. Wade situation might be created where gay marriage becomes a polarizing political issue that complicates gay rights.

Perry v. Schwarzenegger convenes in open court in San Francisco this week. The trial will be the first federal court case in the U.S. to be broadcast on YouTube.

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