When California voters passed Proposition 8 in November 2008, it marked the beginning of a legal battle over same-sex marriage that could eventually make its way to the United States Supreme Court. Proposition 8, or the California Marriage Protection Act, amended the Constitution of California to restrict the definition of marriage to one man and one woman.

Just days after Californians cast their votes, opponents of Proposition 8 filed several lawsuits against the state’s marriage registrar, arguing that the content of Proposition 8 represents a revision rather than an amendment to the Constitution. Under California law, a revision to the Constitution requires a vote in both legislative assemblies and a 2/3 majority in a statewide election, whereas an amendment can be passed by a simple majority vote on a ballot initiative. In May of 2009, the California Supreme Court upheld the amendment in a 6-1 vote. The majority opinion found no grounds to overturn the will of the voters, who are granted the almost unfettered right to alter the state’s Constitution.

Since May 2009, Proposition 8 opponents have taken their case to federal courts. Three separate lawsuits filed by gay couples seeking to marry in California have been merged into one case, Perry v. Schwarzenegger. The trial phase, which began on January 11, 2010, took place in the US District Court located in San Francisco. The case is currently under review by Judge Vaughn Walker, who is expected to deliberate after several weeks of reviewing the case.

Proposition 8’s opponents are now challenging the amendment under the Fourteenth Amendment of the United States Constitution, which guarantees citizens the right to equal protection under the law. Under current California law, gay couples can enter into a domestic partnership, which grants them most, but not all of the benefits afforded to married couples. For example, domestic partnerships do not entitle a partner of a state worker to the same long-term insurance benefits given to spouses of state workers. Additionally, at least one party must be over the age of 62.

The plaintiffs in the case are represented by the unlikely duo of Ted Olson and David Boies, the two lawyers who opposed each other in the famous Bush v. Gore case of late 2000. Olson, a prominent conservative, offered to represent a gay couple shortly after the election. He believes that his background as Solicitor General to President George W. Bush lends bipartisan credibility to the legal team.

Olson and Boies face a two-fold task. First, they must reaffirm that marriage is a fundamental right, applying equally to all citizens. In the past, the court has held marriage to be a fundamental right. In Loving v. Virginia, for example, the Supreme Court ruled that bans on interracial marriage were unconstitutional, calling marriage a “basic civil right”. However, the ruling has not traditionally extended to the right to marry anyone, that is, members of one’s family, multiple partners, or members of the same sex.

The second task facing the Olson-Boies team is persuading the court that gays belong to a “protected class.” Protected classes include members of an ethnic or racial minority, religion, gender and other historically sensitive characteristics. To date, no federal court has established a precedent of recognizing gays as a protected class. If Olson and Boies can convince Judge Walker that gays are, in fact, a protected class, then the court would have to apply “strict scrutiny” to the issue of discrimination in the country. Under that standard, the law must be closely tailored to addressing a compelling governmental interest. If no suspect class is involved, then a state requires only a rational basis for passing a law.

To make their case, Olson and Boies called witnesses to testify on the underlying sentiments behind voter support of Proposition 8. If they can convince the court that support was heavily grounded in anti-gay prejudice, then gays could potentially be considered a protected class, and Proposition 8 will be subject to strict scrutiny. Additionally, several experts on the history of marriage, and on the potential economic and psychological consequences of the amendment all testified on behalf of the plaintiffs.

The defense seemed confident that their side had persuasively argued the State’s interest in recognizing only opposite-sex marriage. “We say that the central and the defining purpose of marriage is to channel naturally procreative sexual activity between men and women into stable, enduring unions for the sake of begetting, nurturing, and raising the next generation,” said Charles Cooper, a lawyer for the defense, “Plaintiffs say that the central and constitutionally mandated purpose of marriage is simply to provide formal government recognition to loving, committed relationships.” The defense called only two witnesses to testify, choosing not to address many of the issues raised by the plaintiff.

Regardless of Judge Walker’s ruling, the case will almost certainly be appealed in the 9th Circuit Court of Appeals, and then to the Supreme Court of the United States. Some gay marriage supporters fear that it is not a good time for this case to be tried in the highest court in the country. “A loss now may make it harder to go to court later,” said one anti-Proposition 8 activist. “It will take us a lot longer to get a good Supreme Court decision if the Court has to overrule itself.” The Supreme Court has tended to not overturn laws which have strong public support. Voters have rejected same-sex marriage ballot proposals in 31 states, including California.

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