Same Sex Marriage Supporters Go To Court

By Karen Grigsby Bates
NPR Morning Edition

In California, protesters are still marching more than a week after voters approved a change in the state constitution — to ban gay marriage.

Critics have filed a stack of lawsuits hoping to overturn the measure, known as Proposition 8. They're also turning up the heat on some individuals who supported it.

At El Coyote, a Tex-Mex restaurant on the edge of Hollywood, the normal menu of tacos and enchiladas was supplemented with something else: protest.

"El Coyote takes your gay dollar to fund gay hatred," John Dennison shouted, pacing in front of the restaurant. He's outraged that one of El Coyote's owners, a devout Mormon, reportedly gave $100 to the campaign for Proposition 8, the gay marriage ban.

"I was married a week ago. Thanks to those great folks at El Coyote and others like them, maybe I'm not today," he said — or maybe he is.

When Proposition 8 passed, it amended the California Constitution to limit marriage to one man and one woman. Almost immediately, gay rights activists and sympathetic politicians launched a legal challenge. They say because Prop 8 would revise existing law, it has to be decided by two-thirds of the Legislature, not by voters.

In any case, it isn't the first time controversial California initiatives have been challenged in court.

"Prop 187, which denied benefits to undocumented aliens, was ultimately struck down in the courts. Prop 209, that ended affirmative action by the state of California and local governments, was challenged in the courts and was ultimately upheld. So it's not at all surprising there's a legal challenge to Proposition 8," said Erwin Chemerinsky, dean of law at University of California, Irvine.

And it wouldn't be the first time the state constitution had been amended, says Ethan Leib, a law professor at the Hastings College of Law at University of California, San Francisco:

"The California Constitution, since its adoption in 1897, has been amended something like 500 times," Leib said.

So what does this latest amendment do to the marriages of people like John Dennison?

"In my view, they are null and void," said Mathew Staver, founder of Liberty Counsel, a nonprofit group that assists organizations seeking to preserve traditional family and religious values.

Staver likens passage of Prop 8 to the U.S. Constitution's 13th Amendment.

"When it was passed, it abolished slavery. You were not grandfathered in as a slave holder, and you did not carry on your property interest in a slave after passage of the 13th Amendment," Staver said.

But Chemerinsky disagrees.

"There is a general presumption in California law that changes in rights apply only prospectively, and by this notion, since Prop 8 doesn't say it applies retroactively, any existing same-sex marriage would still be valid," Chemerinsky said.

Leib says he believes same-sex marriage will eventually be state law, but he thinks challenging the voters' will might be the wrong way to get there.

"We can convince more people that our sense of decency requires it, or we can ask judges to ram it down the throats of 5 million people who, though misguided, have made their views known," Leib said.

The owner of El Coyote offered free lunches in hopes of mending fences with her gay clientele. But protester Sam Borelli, who met with her, says it will take more than that.

"She said that she loves the community, she loves the people that are here, but she had to do what her church told her to do," Borelli said.

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