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Courts must consider role of religions in Prop. 8, Constitutional expert says

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When considering the federal court decision that struck down Proposition 8, the Ninth Circuit Court of Appeals, and most likely the Supreme Court, will have to consider the role religious organizations played in passing the voter referendum banning gay marriage, said Kenji Yoshino, an NYU professor and constitutional law expert.

Yoshino, who is currently the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law, spoke about the ramifications of the federal trial of Prop. 8 at the University of Utah as part of its Leary Lecture series on Oct. 31.

The case, which is likely to end up at the U.S. Supreme Court, explores whether or not a federal judge has the ability to intervene on a state’s constitutional amendment and one of the main factors in that decision is the political power and influence of the minority party being affected.

“There is a really organized opposition against gays and lesbians as a group and that definitely has been a hinge on their political power,” Yoshino said.

The opposition to gay marriage which was headed by religious coalitions, including the Mormon Church, will have to be considered by the courts, Yoshino said. The faith-based groups that supported Prop. 8 comprised more than a third of voters and a significant amount of the financial donations to the campaign came after urgings from churches. The Utah-based Mormon Church issued a letter to be read in all of its U.S. congregations urging members to support the anti-gay initiative by donating “means and time.”

“There is no group that is targeted more in our society by ballot initiatives than gays and lesbians… There have been more than 200 ballot initiatives that have been anti-LGBT since the 1970s and more than 70 percent have been successful,” Yoshino said.

Before 1990, no states had a constitutional ban on gay marriage and now more than 60 percent have them, he added.

And despite some gains in the queer-rights movement, gays and lesbians are vastly under-represented in both national and local governments. There have been only six openly gay U.S. representatives, no openly gay senators, no openly gay presidents and less than one percent of local government representatives are openly gay, he said. Also, because gays and lesbians have no easily identifiable characteristics, organization of a cohesive unit makes it much more difficult to be a powerful group, Yoshino said.

Identifying the political vulnerability of gays and lesbians is an important step in overturning Prop. 8, he said. However, the Supreme Court will also be ruling on whether or not gay marriage is an extension of the right to be married, which has already been established, he said. The Court will have to review whether gay marriage, like interracial marriage, was already a right that had been denied, or whether gender-specific family roles were implied in previous cases, Yoshino said.

“I don’t think the court is going to be playing logic games. I think that what the court is going to be doing is determining whether or not the country is ready for a judicial determination of whether or not same-sex marriage is constitutionally required,” Yoshino said.

After federal judge Vaughn Walker struck down Prop.8 as unconstitutional in 2010 it was appealed and the Ninth Circuit Court of Appeals will most likely rule on the issue sometime in 2012.

Seth Bracken

Seth Bracken is the editor of QSaltLake

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