Media Credit: Law Office of David Codell

Nov. 21 over 100 students crowded into room 240 of the Law Building to listen to David Codell, lead counsel for the anti-Proposition 8 lawsuit. Associate Professor Rex Glensy, who organized and moderated the event, introduced Codell as a Harvard Law graduate, former clerk for Supreme Court Justice Ruth Bader Ginsberg and counsellor in many notable cases dealing with GLBT equality, including the In re Marriage cases which granted same-sex couples in California the right to marry.

California has a long history of supporting equal rights for the GLBT community. A few municipalities started granting domestic partnership benefits in the 1980s, and up through the 2000s the state legislature defined domestic partnerships to have most of the legal rights of marriage. This was met with opposition from religious groups who filed suit against the state for establishing “marriage in all but name” for gay and lesbian couples. However, the state court ruled that the legislation was valid.

While domestic partnerships and marriages are virtually the same as far as rights within the state of California, the biggest material concern is the portability of the license; couples who move or even travel out-of-state may not have their rights honored. They also are ineligable for the federal rights of marriage, including filing joint income tax returns. Other arguments for marriage are the social recognition and acceptance of the term as opposed to “domestic partnership” or “civil union” as well as the inherent inequality of separate institutions.

Proposition 8 is being challenged on the grounds that it is too significant a change to the state’s constitution — a revision rather than an amendment — to have been passed solely by referendum. Codell explained that the referendum represents a significant departure from legislative trends and existing court precedent, and could be interpretted as a violation of California’s Equal Protection clause.

While there is no specific precedent for such a case, there are many related decisions that the judges may look to in deciding the fate of Proposition 8, and a victory for same-sex marriage is not out of the question. Such a victory would be significant in the movement for equality, as the California Supreme Court is the most followed state court — many out-of-state courts look to its precedents when making decisions. When asked, Codell estimated that the decision would be reached sometime next summer as long as there are no unforseen delays.