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Efforts to overturn California's anti SSM Prop. 8

Comments before the federal trial:
Perry v. Schwarzenegger

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In this website, "SSM" is used as an acronym for "same-sex marriage."

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Slogans on signs and buttons associated with the trial:

bullet "We all deserve the freedom to marry."

bullet "Can I vote on your marriage now?"

bullet "My idea of a perfect marriage? A legal one. I want a wife." (Hand-written sign carried by a woman, apparently with a homosexual or bisexual orientation)

bullet "Liberty, Justice, & Marriage Equality."

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2009-JAN-11: Before the trial:

The trial is being held at the United States District Court, Northern District of California, in San Francisco. It is Case no. 09-CV-2292 VRW. The trial is expected to last two to three weeks ending in late January or early February. When the proceedings opened, there were 22 attorneys in attendance!

Governor Arnold Schwarzenegger is named as the defendant in the case. He has not taken a position for or against marriage equality. Attorney General Jerry Brown who is running for governor again, is also a defendant. He took the very unusual position of refusing to defend Prop. 8 in court. Further, he issued an opinion that it was unconstitutional. Linette Scott, Patrick O'connell and Dean C. Logan are the final defendants; they hold various state and county positions.

Since the Government of California is refusing to defend Prop. 8 in court, others have taken their place: private citizens, and two fundamental Christian groups opposed to SSM: the Alliance Defense Fund and

bullet David Boies, one of two principal attorneys for the plaintiffs and a conservative, referred to his appearance opposing Theodore Olson before the U.S. Supreme Court in the year 2000 to argue who won the 2000 presidential election. He said:
     "About nine years ago, people accused me of losing the whole country. But this time Ted and I are together."

bullet Evan Wolfson, founder of Freedom To Marry, a national gay rights organization, said:
     "To have Mr. Conservative [Theodore Olson] as our champion is stunning. What we anticipate is that in the clear, cool, dispassionate light of the courtroom, the American people will see there is just no good reason to deny marriage."

bullet An anonymous same-sex marriage (SSM) advocate said that this lawsuit may have:
      "... the huge potential price tag of a tremendous loss. If this goes all the way to the Supreme Court – and it well could – there are very legitimate fears that it will lose. Four of the justices are considered to be unreachably anti-gay. Nobody can be confident they will go for it."

She or he is undoubtedly referring to the four strict constructionists on the Court -- Chief Justice Roberts and Justices Alito, Scalia and Thomas who, based on past performance, will probably vote as a block against the legalization of SSM. It is generally recognized that the goal of any appeal to the U.S. Supreme Court would be to convince the remaining five Justices to vote unanimously in favor of equal marriage.

bullet Robert Volk of the Boston University School of Law specializes in LGBT civil rights issues. He speculates that the case is unlikely to reach the Supreme Court before 2011. He commented:
     "Our courts have become more willing to look at decisions in other countries, and quite frankly, Canada's lead on this question was part of the reason by the Massachusetts court approved same-sex marriage. But there is still a lot of fear about same-sex marriage in the U.S., especially among older Americans. [SSM is] probably inevitable. But we might have to wait for another generation to die before it happens." 1

bullet Geoff Kors, executive director of Equality California, who is promoting marriage equality, said:
     "The ruling will impact not just whether Prop [Proposition] 8 is overturned and same-sex couples marry, but whether all minorities need to fear having their rights taken away by the majority."

He also said:
     "The more people talk about the issue, the more they see this trial, the more they think about it, the more they move toward supporting equality for everyone." 9

bullet Austin Nimocks, senior counsel for the Alliance Defense Fund who opposes SSM said:
     "The primary issue at stake here is whether in America we should respect and uphold the right of a free people to make social policy choices through the democratic process." 9

Nimocks also commented that in America, GLBT individuals are free to marry. However, they are not necessarily free to marry persons of the same gender. Thus, he believes that the case does not involve minority rights. i.e. one can marry, but not necessarily to the individual that they love and to whom they have made a commitment.

bullet Ron Prentice, executive director of, an organization that opposes marriage equality, said:
"It's impossible to overstate the importance of this case to the future of marriage in America. Not only is the constitutionality of California's Prop. 8 at stake, but so are the marriage laws of 45 other states and the federal Defense of Marriage Act. Prayers and support have sustained us and give us confidence that we will prevail in this historic battle." 12
bullet Andy Pugno, general counsel for wrote:
"What is at stake in the Perry case is not just the right of California voters to reaffirm the definition of marriage as only between a man and a woman; a federal court decision overturning Proposition 8 could also ultimately nullify the people’s vote on marriage in 45 states and the federal Defense of Marriage Act passed by Congress in 1996.... as the trial begins, there is no question that virtually every ruling so far has put traditional marriage at an increasing disadvantage. The consistency with which the judge has sided with our opponents is anything but comforting to supporters of traditional marriage."


Webmaster's comment:

I try to remain objective and not insert my own beliefs in these essays. But sometimes I lose my cool. This is one of them.

Nimock's first comment indicates a profound misunderstanding of the roles of a constitution. One of their main functions is to protect human rights in spite of the desires by governments and the public to use their power to attack groups within the country and veto some of their rights.
The crux of the matter is whether voters should be given the right to identify a specific minority on any basis: gender, race, religion, sexual orientation, etc. and terminate some of their rights. Should human rights be put to the vote? If the answer is yes, then nobody's rights are safe from the tyranny of the majority, and we have mob rule.

Never forget the words of Pastor Martin Niemoller, who wrote at the time of his release from a World War II Nazi concentration camp in 1945:
     "First they came for the communists, and I did not speak out-- because I was not a communist; Then they came for the socialists, and I did not speak out-- because I was not a socialist; Then they came for the trade unionists, and I did not speak out-- because I was not a trade unionist; Then they came for the Jews, and I did not speak out-- because I was not a Jew; Then they came for me-- and there was no one left to speak out for me." 10,11

Nimock's second comment is analogous to saying that Americans have freedom of religion, but we cannot join a faith group and only worship a God unless they first meet government requirements.

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The case continues

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References used:

 The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Mitch Potter, "Same-sex legal team an unlikely union," Toronto Star, 2010-JAN-12, at:

  2. David Savage & Maura Dolan, "No gay marriage trial video," Chicago Tribune," 2010-JAN-12, at:

  3. Lisa Leff & Paul Elias, "Historian testifies in gay marriage trial that procreation not sole reason for marriage," Associated Press, 2012-JAN-12, at:

  4. "Children no requirement for marriage, trial told," AFP, 2010-JAN-12, at:

  5. Nancy F. Cott, "Public Vows: A history of marriage and the nation," Harvard University Press, (2002).  Read reviews or order this book safely from online book store. The price is $17.33 plus shipping, or the usual $9.99 for a Kindle version. reviewers gave the book 4.9 stars out of 5. Michael P. Chicago reviews this book on, writing:

    "Marriage may be ancient in origin, but Nancy Cott does an excellent job in the end of showing that 'marriage' in the U.S. did not simply grow organically from these ancient traditions, and that government is capable of altering the institution for its own purposes as it sees fit, regardless of what might truly best for society or the individuals in it. While Cott does not explore the impact of her findings on same-sex marriage in great detail, it is very enlightening to understand that debate in light of the changes in marital law over the past 200 years that Cott cleverly elucidates for the reader. Highly recommended for anyone who wants to understand the evolution of the institution of civil marriage in the United States.
  6. Eve Conant, "Gay marriage on trial: The relevance of slavery," Newsweek, 2009-JAN-12, at:

  7. "Marriage is goodfor your health," Associated Counselors & Therapists, at:

  8. Richard C. Paddock, "2 Couples Make Case for Gay Rights in Big Trial," Sphere, 2010-JAN-12, at:

  9. Mike O'Sullivan, "San Francisco gay marriage court case could have national impact,: Voice of America, 2010-JAN-13, at:
  10.  The above wording appears to be correct. However, a very popular distortion of his saying cites, in order: labor unions, Communists, Jews, and Catholics.
  11. Franklin H. Littell, "First They Came for the Jews," Christian Ethics Today, 2001-MAY-27, at:
  12. Nima Reza, "Constitutionality of California Marriage Amendment to be Decided," CitizenLink, 2009-Jan-10, at:
  13. Andy Pugno,"The Perry Case: What’s At Stake," 2010-JAN-06, at:

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Home > "Hot" topics > Homosexuality > Couples > California > Attacking Prop. 8 > here

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Copyright 2010 by Ontario Consultants on Religious Tolerance
Original posting: 2010-JAN-12
Latest update: 2010-JAN-19
Author: B.A. Robinson

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