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Calif. Gay-Marriage Backers Go To Court Over Ban
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Calif. Gay-Marriage Backers Go To Court Over Ban


Calif. Gay-Marriage Backers Go To Court Over Ban
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  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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Here in California, protesters are still marching more than a week after voters approved a change in the state constitution to ban gay marriage. Critics have filed a stack of lawsuits hoping to overturn the measure known as Proposition 8. And they're also turning up the heat on some individuals who supported it. NPR's Karen Grigsby Bates reports.

KAREN GRIGSBY BATES: At El Coyote, a Tex-Mex restaurant on the edge of Hollywood, the normal menu of tacos and enchiladas was supplemented with something else: protest.

(Soundbite of protest)

Mr. JOHN DENNISON: El Coyote takes your gay dollar to fund gay hatred.

BATES: John Dennison paced in front of the restaurant, outraged that one of El Coyote's owners, a devout Mormon, reportedly gave $100 to the campaign for Proposition 8, the gay marriage ban.

(Soundbite of protest)

Mr. DENNISON: I was married a week ago. Thanks to those great folks of El Coyote and others like them, maybe I'm not today.

BATES: Or maybe he is. When Prop. 8 passed, it amended the California Constitution to limit marriage to one man and one woman. Almost immediately, gay rights activists and sympathetic politicians launched a legal challenge. They say because Prop. 8 would revise existing law, it has to be decided by two-thirds of the legislature, not by voters. In any case, it's not the first time controversial California initiatives have been challenged in court. Erwin Chemerinsky is dean of law at University of California, Irvine.

Professor ERWIN CHEMERINSKY (Dean of Law, University of California, Irvine): Prop. 187, which denied benefits to undocumented aliens, was ultimately struck down in the courts. Prop. 209 that ended affirmative action by the state of California and local government was challenged in the courts. It was ultimately upheld. So it's not at all surprising there's a legal challenge to Proposition 8.

BATES: And it wouldn't be the first time the state constitution had been amended, says Ethan Leib, a law professor at the Hastings College of Law at the University of California, San Francisco.

Professor ETHAN LEIB (Hastings College of Law, University of California, San Francisco): The California Constitution, since its adoption in 1879, has been amended something like 500 times.

BATES: So what does this latest amendment do to the marriage of people like John Dennison?

Mr. MATHEW STAVER (Founder, Liberty Counsel): In my view, they are null and void.

BATES: That's Mathew Staver, founder of Liberty Counsel, a nonprofit group that assists organizations seeking to preserve traditional family and religious values. Staver likens passage of Prop. 8 to the U.S. Constitution's 13th Amendment.

Mr. STAVER: When it was passed, it abolished slavery. You were not grandfathered in as a slaveholder, and you did not carry on your property interest in a slave after the passage of the 13th Amendment.

BATES: But UCI's Chemerinsky says no.

Professor CHEMERINSKY: There is a general presumption in California law that changes in rights apply only prospectively. And by this notion, since Prop. 8 doesn't say it applies retroactively, any existing same-sex marriage would still be valid.

BATES: Hastings' Ethan Leib says he believes same-sex marriage will eventually be state law. But he thinks challenging the voters' will might be the wrong way to get there.

Professor LEIB: We can convince more people that our sense of decency requires it. Or we can ask judges to ram it down the throats of five million people who, though misguided, have made their views known.

BATES: Like the owner of El Coyote who offered free lunches in hopes of mending fences with her gay clientele. But protestor Sam Borelli, who met with her, says it will take more than that.

Mr. SAM BORELLI: She said that she loves the community, she loves the people that are here, but she had to do what her church told her to do.

BATES: Karen Grigsby Bates, NPR News.

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