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States’ same-sex marriage laws set precedent

In the past few weeks, both Iowa and Vermont legalized same-sex marriage in moves that may impact California’s efforts to do the same.

The state legislature in Vermont was the first to legalize same-sex marriage within the legislative system when they overturned a veto from the governor.

Ken Nagy, a civil rights lawyer, explained that voters could amend the constitution in Vermont the same way they did in California with Proposition 8.

Prop. 8 is an initiative that was on the November 2008 ballot that amended the state constitution to define marriage as being between a man and a woman. It passed by about 52 percent.

Same-sex rights activists brought a new case before the court and held oral arguments on Mar. 5 in San Francisco. While this case does not deal with the legalization of same-sex marriage, although a decision in the plaintiff’s favor would strike down Prop. 8. The case deals with the rights of the voters.

The plaintiffs – same-sex rights activists – argued that voters do not have the right to take away civil liberties from a minority group. They are arguing that Prop. 8, which affected non-heterosexual couples, was not valid.

Nagy said he believes that Vermont will not take such measures due to its predominantly liberal population.

In Iowa, the State Supreme Court ruled Apr. 3 that limiting marriage to unions between men and women violates the state’s constitution and said the matter could not be overturned by public vote.

Legal experts say that the Iowa court decision does not directly affect California, but could affect the California Supreme Court’s ruling on Prop. 8.

The Iowa court decision indirectly addressed the Prop. 8 case, according to Tara Borelli, an attorney for Lambda Legal, a national organization that advocates for same-sex marriage and civil rights for the gay and lesbian communites.

She said the language of the decision “included in their analysis Prop. 8-relevant themes, although the Iowa decision concerned primarily a different issue than Prop. 8.” Iowa’s concern was legalizing same-sex marriage.

“Prop. 8 questions how the structure of government is set up,” she explained, adding that the Iowa court ruled that the courts should decide on issues that are too divisive for the voters, which includes same-sex marriage.

Nagy, however, questions the long-term wisdom of restricting voter’s rights.

“You are limiting the people’s ability to form its own laws,” he said. “Although I disagree with the content of what they’re doing, I support the process.” Borelli said that the California court is not forced to consider the Iowa decision as they write their analysis of Prop. 8. However, “What the court can do is look to the Iowa decision as persuasive authority,” she said.

State courts usually consider, if not necessarily honor, the decisions by other state courts.

Should California rule in favor of Prop. 8, same-sex marriage would be constitutionally banned in the state of California. Undoing such a constitutional amendment is very difficult, lawyers agree.

If Prop. 8 is deemed valid, the legislative branch would be constitutionally banned from passing a same-sex marriage bill.

Because courts cannot hear the same case twice, no California court could hear a new same-sex marriage case if it concerns the same issues as Prop. 8.

Borelli said that her organization is prepared to take action should Prop. 8 pass. The organization’s only option would be to write a new proposition that would overturn Prop. 8 if voters pass it.

Because courts usually announce their decision within 90 days of their arguments, the California Supreme Court should announce their ruling on Prop. 8 by June 2009.

Borelli is hopeful that same-sex marriage will soon be legal. Legalizing it in Vermont and Iowa, as well as proposed legalization in New Hampshire, New York and Washington, D.C., “show[s] that time is on the side of fairness and equal opportunity,” she said.