I doubt he intervenes. He doesn't have the courage. :(

The federal suit challanges Prop 8 on federal constitutional equal protection grounds; it would seem to me that since California already has a civil union statute that provides state rights and benefits that are "marriage in all but the name", the suit necessarily has to say that denying full equivalancy including name violates the federal equal protection clause.

That's a tall order given the current SCOTUS makeup, much less for the Obama Justice Department to be expected to join in.

However, it would seem a bit more likely that the Supreme Court might buy an equal protection argument that states, by whatever name, have to afford the same rights to same-sex couples as to opposite sex ones. Somewhat like the decision in Vermont, etc.

I know many folks in our commnity find that a demonic halfway measure, but what would be wrong in at least urging the Justice Department to consider taking that position?

The federal suit challanges Prop 8 on federal constitutional equal protection grounds; it would seem to me that since California already has a civil union statute that provides state rights and benefits that are "marriage in all but the name", the suit necessarily has to say that denying full equivalancy including name violates the federal equal protection clause.

That's a tall order given the current SCOTUS makeup, much less for the Obama Justice Department to be expected to join in.

However, it would seem a bit more likely that the Supreme Court might buy an equal protection argument that states, by whatever name, have to afford the same rights to same-sex couples as to opposite sex ones. Somewhat like the decision in Vermont, etc.

I know many folks in our commnity find that a demonic halfway measure, but what would be wrong in at least urging the Justice Department to consider taking that position?

Privately, I think Obama would love a challenge to Proposition 8 like this. I mean, Obama has said that he is opposed to amending constitutions in the manner that Proposition 8 does (even if he did a split screen "anti-gay marriage/anti-Prop8)so it's conceivable that he could.

Politically, as Bil says, he doesn't have the courage.

What Geoff Kors says here is factually incorrect:

"For instance, the courts stepped in when California voters tried to repeal protections against housing discrimination based on race and tried to strip the children of undocumented workers of health care and education. The courts stepped in when Colorado voters tried to repeal protections from discrimination based on sexual orientation and prevent the legislature from enacting laws in the future to protect gay people.

Why? Because the majority does not have the right under the United States Constitution to overturn laws providing equality to a protected minority group and deny the legislative and judicial branches their right -- and obligation -- to enact such laws. Period. End of story."

Well, no, that's not the end of the story.

The first ballot initiative that he mentioned - Prop 187 to take rights away from undocumented workers' children - was overturned because the health care portion of it violated federal immigration law, creating a federalism question, and the education part of it violated the kids' Constitutional right to K-12 education. There is no Constitutional right to same-sex marriage, currently. Prop 187 wasn't overturned because the majority doesn't have the right to take away minorities' rights.

The second ballot initiative that he mentioned - Prop 14 back in 1964 to explicitly grant a constitutional right to discriminate based on race, specifically in housing - was overturned because it violated equal protection in California's Constitution. Federal court only upheld the California Supreme Court's right to do that. If we wanted to follow that path, then we already lost because the California Supreme Court is not with us.

The last one he mentions - Colorado's Amendment 2 which banned local governments from passing gay anti-discrimination law - was indeed overturned by the Supreme Court in our first Supreme Court win, Romer v. Evans. But it wasn't because people don't have a right to vote on other people's rights. On the contrary, the right discussed in Amendment 2, that of anti-discrimination laws, still are neither a reality nor a "right" in most of America. Instead, the Court decided that Amendment 2 took away certain First Amendment rights from gay and lesbian people, namely the right to seek anti-discrimination legislation at the local level. It impeded gay and lesbian participation in the political process, and that participation was already deemed a Constitutional right. Same-sex marriage isn't.

Anyway, all that's to say that this case is an uphill battle. I don't really know of any Supreme Court case that ruled that a majority can't vote to take away a minority's rights if said rights aren't already established as federally-protected rights. At some point, it seems, they're going to have to get the Supreme Court to agree that there's a Constitutional right to same-sex marriage, and that just isn't going to happen with its current make-up.

T2inDC - Obama specifically campaigned on his opposition to same-sex marriage as well. Yeah, he was against Prop 8, but his overall stance on same-sex marriage was opposition, so much that his words on the topic were used in ads to help pass Prop 8. For him, this is still risky. And considering that a majority of Americans still don't support us in this arena, I think there is a risk. One he should take, but probably won't.