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At Heart Of Prop. 8 Trial, A Clash Over Motives

Publication Date: 
January 19, 2010
The Sacramento Bee
Susan Ferriss

Professor R. Richard Banks, an expert in family and antidiscrimination law, is quoted in this article on whether the Proposition 8 same-sex marriage ban in California violates constitutional rights:

A majority of voters stopped same-sex marriage in California simply by casting a ballot for Proposition 8.

This week, when a federal trial resumes in San Francisco, attorneys challenging Proposition 8 will continue building a multilayered argument that voters' action created an unconstitutional law based on prejudice and unfounded fear about homosexuality.

During the historic trial that began last week in U.S. District Court, attorneys for gay couples tried through opening arguments and witness testimony to show that the government – or the voters – have no rational purpose for excluding gays from a fundamental right such as marriage.


"You can't deny a fundamental right without a good reason. You need a weighty reason," said Ralph Richard Banks, a Stanford Law School equal-protection law expert.


Banks said Pugno's contention that voters had rightful concerns about the unknown might be enough to win.

But it won't be enough, he said, if challengers persuade presiding Judge Vaughn Walker to make a historic legal conclusion about gay people.

Courts use three tiers of "scrutiny," Banks explained, to consider whether a law violates a person's constitutional rights. The lowest tier allows for a law only if there is a rational reason for restricting rights.


"If you make a convincing enough case that gays and lesbians are vilified and wrongly stereotyped, valued less than others," Banks said, "then that could give the foundation for changing doctrine."

"The judge could say, 'I think it's time to recognize that gays deserve special protection just as other groups do,' " Banks said. "If the judge says it's time to embrace this new constitutional standard, then that would invalidate Proposition 8."