Gay-marriage attorney maps out strategy to defeat ‘state-sponsored discrimination’

Fresh on the heels of a major court victory, David Boies, one of the attorneys who successfully argued the case of Perry v. Schwarzenegger to overturn California’s ban on gay marriage, was greeted with a standing ovation at the Commonwealth Club Thursday night.

Boies said the credit was really due to the activists fighting for years to end same-sex discrimination, some risking their own safety.

He evoked the similarities between this case and those he took part in during the civil rights movement decades ago, calling opposition to same-sex equality the “last bastion of official, state-sponsored discrimination in this country.”

Boies described some possible scenarios for the immediate future of same-sex marriage. The temporary stay that Judge Vaughn R. Walker placed on his own ruling that Proposition 8 was unconstitutional — thus prohibiting any same-sex marriages from being performed — might actually help the case against the ban, Boies said. The stay would move the case through the legal system faster, since it would likely preempt a higher court from needing to grant a stay.

Friday is the last day for either side in the case to appeal the stay which Walker filed. Boies suggested that the judge might be inclined toward lifting the stay quickly since Walker has clearly indicated in his ruling that Proposition 8, which amended the California constitution two years ago to suspend gay marriages, has taken away a fundamental right from a group that previously held that right.

One twist Boies speculated on was the possibility that defenders of the marriage ban might not have the authority to bring an appeal before the courts without the explicit backing of the State of California. Although the case bears the name of Gov. Arnold Schwarzenegger, neither the governor nor the attorney general has been willing to defend or support Proposition 8. Schwarzenegger has said in unequivocal terms that banning the marriages is discriminatory and that he agrees with Walker’s decision to overturn Proposition 8.

Even if the case were to be appealed to the Ninth Circuit Court of Appeals and then to the U.S. Supreme Court, Boies suggested that the Supreme Court’s ruling might then narrowly refer to the case as one unique to California. The high court could rule that Proposition 8 is unconstitutional just at the state level, because it allows some 18,000 gay and lesbian couples to remain married while preventing others from doing so.

So while a Supreme Court victory in California would not automatically overturn similar bans in other states, it would still be a big step forward for gay-rights advocates.

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