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San Francisco Gay Marriage Court Case Could Have National Impact

The debate over homosexual marriage is focused on a San Francisco courtroom this week. A lawsuit challenging California's gay marriage ban could have far-reaching implications for the entire United States.

The lawsuit in U.S. district court, brought by gay rights and civil rights activists on behalf of two same-sex couples, seeks to overturn a gay marriage ban called Proposition 8. In 2008, California voters passed the measure by a margin of 52 to 48 percent.

Geoff Kors, executive director of the group Equality California, wants the measure struck down, saying it violates the equal rights provisions of the U.S. Constitution.

"The ruling will impact not just whether Prop [Proposition] 8 is overturned and same-sex couples marry, but whether all minorities need to fear having their rights taken away by the majority," said Geoff Kors.

The case is being pursued by an unusual team of high-profile attorneys. Former U.S. Solicitor General Theodore Olson and David Boies squared off following the disputed vote count in Florida in the 2000 U.S. presidential election. Olson represented Republican George W. Bush and Boies represented Democrat Al Gore. Today, the two lawyers are allied against Proposition 8, arguing the case on civil rights grounds.

The state of California is the target of the suit, but it has declined to fight it in court. California Attorney General Jerry Brown says he agrees with the plaintiffs that homosexuals have the right to marry. Governor Arnold Schwarzenegger has taken no position on the matter, so private legal groups have stepped in.

Austin Nimocks is senior counsel for the Alliance Defense Fund, a group that is co-counsel in defending the state law. He says it is a matter of whether the will of the voters who approved Proposition 8 should be upheld.

"The primary issue at stake here is whether in America we should respect and uphold the right of a free people to make social policy choices through the democratic process," said Austin Nimocks.

Nimocks says the case does not involve minority rights because members of all groups are free to marry. He says they are just not free to marry people of their own gender.

Issues being explored in the case include the extent of marriage rights, the impact of same-sex marriage on children and overall social stability.

Individual U.S. states have jurisdiction over marriage. Five permit gay marriage - Connecticut, Iowa, Massachusetts, New Hampshire and Vermont. New York recognizes same-sex marriages performed in other places.

Late last year, the Washington D.C. city council approved same-sex marriages in the nation's capitol, but the measure is still subject to review by the U.S. Congress.

California permitted same-sex marriage for five months in 2008, after the state Supreme Court invalidated an earlier law that banned gay marriage. Voters passed Proposition 8 by a narrow margin, amending the state constitution and ending the practice. Four-thousand same-sex couples had married in the interim, and the court held that their unions are legal.

Attorney Austin Nimocks says that in state after state, gay marriage provisions fail when put to a popular vote.

"We have seen votes in 31 different states - from California to Maine, from Texas to Michigan, all across the United States where voters every single time have upheld marriage as the union of one man and one woman," he said.

In addition, 30 states have amended their constitutions to ban gay marriage.

Geoff Kors of Equality California says there is a strong case for reversing the gay marriage ban on constitutional grounds and that whatever the outcome in court, the tide is shifting.

"The more people talk about the issue, the more they see this trial, the more they think about it, the more they move toward supporting equality for everyone," he said.

With successive legal appeals, the case could reach the Supreme Court of the United States.

The oral arguments in the case are expected to last two to three weeks; a ruling could take several months. But whatever the outcome, an appeal is likely.