On Monday, an unprecedented trial challenging Proposition 8, the law that bans same-sex marriage in California, started in San Francisco.
Expected to last three weeks, the case, Perry vs. Schwarzenegger, would be the first federal trial in U.S. history in which testimony will be heard and recorded about the harm to gay and lesbian citizens caused by laws like Prop 8.
The case is filed by two couples, Kristin Perry and Sandra Stier, and Jeff Zarrillo and Paul Katami, who are suing the state of California for the right to marry.
Although California governor Arnold Schwarzenegger, Attorney General Jerry Brown and two other state officials are named as the defendants, Governor Schwarzenegger has said that his stance on same-sex marriage is neutral while Brown said he believes Proposition 8 to be unconstitutional and should be struck down. Lead defense counsel Charles Cooper represents the official proponents and campaign committee of Proposition 8.
The state supreme court legalised same-sex marriage in May 2008, but that ruling was overturned by Proposition 8 in a referendum that passed with 52 per cent of the vote the following November.
Proposition 8 added a clause to the state constitution which says: “only marriage between a man and a woman is valid or recognised in California”.
The case will be decided without a jury by Chief US District Judge Vaughn Walker. Media reports say however regardless of the outcome of this trial, the case is likely to be appealed all the way to the Supreme Court.
At present, five US states permit same-sex marriage, while 30 state constitutions ban it.
The two couples are represented by legal luminaries David Boies and former US Solicitor General Theodore Olson who described himself as a “politically active, lifelong Republican, (and) a veteran of the Ronald Reagan and George W. Bush administrations.” His journey as a “conservative” to becoming a same-sex marriage advocate and the reasons why have been documented in a story in The New York Times (A Conservative’s Road to Same-Sex Marriage Advocacy) and in a column he had written for Newsweek (The Conservative Case for Gay Marriage: Why same-sex marriage is an American value).
To follow the case, visit prop8trialtracker.com, twitter.com/CourageCampaign and twitter.com/AmerEqualRights
Media snippets about the case:
And don't tell me that civil unions are exactly the same as marriage. If that's true, then let's let gays and lesbians pick first. If they pick marriage, and heterosexuals are relegated to civil unions, no problem, right, since they are exactly the same?
- CNN legal analyst Lisa Bloom in Prop 8 is simply unconstitutional
With the two gay couples off the stand for now, attorneys for the plaintiffs inPerry v. Schwarzenegger are turning to experts and historians to dissect the meaning and progress of the institution of marriage. Yet instead of gay marriage, historian Nancy E. Cott, a former Yale and now Harvard professor, has been grilled today and yesterday more about slavery than homosexuality. Why? Because the plaintiffs are using myriad laws related to slaves and marriage as an example of how the American legal system has had to adjust and progress over time when it comes to marriage.
- Eve Conant in Gay Marriage on Trial: The Relevance of Slavery (Newsweek)
Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one’s own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.
- Theodore Olson in The Conservative Case for Gay Marriage: Why same-sex marriage is an American value (Newsweek)
Among other things, (Chief U.S. District Judge Vaughn) Walker asked how Proposition 8 could be discriminatory since California already allows domestic partnerships that carry the same rights and benefits of marriage.
"If California would simply get out of the marriage business and classify everyone as a domestic partnership, would that solve the problem?" the judge asked.
Olson answered that he did not think such a move would be politically feasible.
"I suspect the people of California would not want to abandon the relationship that the proponents of Proposition 8 spent a tremendous amount of resources describing as important to people, and so important it must be reserved for opposite-sex couples," he said.
- Calif. couples tell of gay marriage ban’s toll (MSNBC.com)
Proposition 8 had a simple, straightforward, and devastating purpose: to withdraw from gay and lesbian people like the Plaintiffs their previously recognized constitutional right to marry. The official title of the ballot measure said it all: “Eliminates Right of Same-Sex Couples to Marry.”
Proponents of Proposition 8 have insisted that the persons they would foreclose from the institution of marriage have suffered no harm because they have been given the opportunity to form something called a “domestic partnership.” That is a cruel fiction.
- Text of Ted Olson’s Opening Statement in Prop. 8 Trial – As Prepared