Tonight on Bill Moyers' Journal: The Prop 8 Battle

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http://www.pbs.org/moyers/journal/index-flash.html


February 26, 2010

The quest for marriage equality has created some unlikely allies in attorneys Theodore Olson, a conservative, and David Boies, a liberal. Long well-known within the field of law, the two became nationally famous as the opposing counsels in Bush v. Gore, the Supreme Court case that halted the Florida recount, and resolved the 2000 Presidential election in favor of George W. Bush.

Now the two lawyers, both veterans of multiple Supreme Court cases, have mounted a well-financed legal challenge to Proposition 8, California's 2008 ballot initiative that put an end to same-sex marriage in that state. The case could make it as far as the Supreme Court and define the debate on same-sex marriage for years to come.

On this week's JOURNAL, Olson and Boies join Bill Moyers to discuss why the issue of same-sex marriage is so important, why they chose to pursue the matter in the courts, even against the wishes of some in the LGBT community, and why conservatives and liberals must come together to solve the big issues facing the country.

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February 26, 2010

After more than a decade wrangling over same-sex marriage in courts, legislatures and through ballot initiatives, Americans now have a patchwork of laws across the 50 states and the federal government. As of this writing, five states issue licenses for same-sex marriages and two have explicit pledges to recognize same-sex marriages granted by other states. Forty states have laws or constitutional amendments prohibiting same-sex marriage. And, at the federal level, the "Defense of Marriage Act," prevents federal recognition of same-sex marriages, and allows states not to recognize the same-sex marriages formed in other states.

Recent history of same-sex marriage in America

Same-sex marriage first arose as a major national issue in 1993, after the Hawaii Supreme Court ruled that the state must show a compelling reason not to issue marriage licenses to same-sex couples. The ruling led directly to conservative efforts to pass legislation blocking same-sex marriage across the country, and indeed, Hawaii eventually amended their constitution to stop same-sex marriage. Before any other state court or legislature approved same-sex marriage, legislation passed in Utah, Alaska and in the US Congress opposing it.

Though a few states passed laws recognizing civil unions, no state legalized same-sex marriage until 2003, when the Massachusetts Supreme Court ruled same-sex marriage a legal right under the state constitution, and gave the legislature six months to comply with their ruling. In 2004, Massachusetts became the first state to issue marriage licenses to same-sex couples.

In 2005, the Connecticut legislature adopted a measure allowing civil unions with all the rights of marriage. But in 2008, the Connecticut Supreme Court struck down the law, and ruled that same-sex couples had a right to marry under the state constitution.

Meanwhile, opponents of same-sex marriage pushed laws through legislatures and ballot initiatives, often called by their proponents "Defense of Marriage Acts," which define marriage as between a man and a woman. The Alliance Defense Fund, a religious-conservative legal organization that opposes same-sex marriage, tracks the spread of "Defense of Marriage Acts," with a project called DOMA Watch.

Perhaps the most high-profile victory for opponents of same-sex marriage came during the 2008 election, with the passage of Proposition 8 in California, a constitutional amendment banning same-sex marriage. In May of 2008, the California Supreme Court had invalidated Proposition 22, which had banned same-sex marriage, creating a brief window in which the state recognized same-sex marriages. In response, voters passed Proposition 8, and California's state Supreme Court upheld the amendment in 2009, but also ruled that couples married before Prop 8 could remain married.

A few other states began issuing marriage licenses to same-sex couples in 2009. In April, the Iowa Supreme Court ruled that Iowans have a constitutional right to same-sex marriage. Shortly after, the Vermont legislature overrode a veto by Governor Jim Douglas, and passed a law allowing same-sex marriage. Maine's legislature passed a law legalizing same-sex marriage, but that was repealed shortly after by a ballot initiative. And in June, 2009, New Hampshire's Governor signed into law an act legalizing same-sex marriage.

The battle will continue to play out in the courts and legislatures, and advocates on both sides are closely watching Boies and Olson's lawsuit, the outcome of which could have repercussions on the debate for years to come.

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