Efforts to overturn California's anti SSM Prop. 8
Perry v. Schwarzenegger: Initial
reactions. Public viewing of the trial
In this website, "SSM" is used as an
acronym for "same-sex marriage."
"GLBT" is an acronym for "Lesbian, Gay, Bisexual, Transsexual"
Many media sources use the term "gay marriage," which is not
precise because many SSMs involve one or two bisexuals.
Challenging Prop. 8 in federal court:
The case began on 2010-JAN-11.
This is the first time in history that a SSM case has been
brought before a U.S. federal court.
The goals of the plaintiffs is to have SSM declared a right
implied by the U.S. Constitution, and to obtain a ruling that this right was violated when Prop 8
narrowly passed in a voter referendum during 2008-NOV.
The case will be heard by Chief U.S.
District Judge Vaughn R. Walker who was selected by a random drawing.
Karl Vick, a staff writer at the Washington Post, describes the
two two lawyers for the plaintiffs as:
"...the odd couple ... Theodore B. Olson, a
conservative Republican, and David Boies, a famed litigator and Democrat. The
two are close friends who were on opposite sides in Bush v. Gore, the
Supreme Court case that decided the 2000 presidential election, but they found
common ground pressing for constitutional recognition of same-sex marriage."
The lawsuit is on behalf of two same-sex California
couples: Kristin Perry & Sandra Stier
of Berkeley, and Paul Katami & Jeffrey Zarrillo of Burbank. They are
supported by a newly formed advocacy group: the American Foundation for
lawyers are expected to argue for SSM on the basis that Prop. 8 violates
due process clause and the equal protection clause of the 14th Amendment of the
U.S. Constitution. A second topic to be determined is whether the voter
initiative system in California should allow voters to remove a basic human right from an identified group --
marriage by loving, committed same-sex couples in this case -- by a
simple majority vote.
Joining the lawsuit on the side of the plaintiffs
will be the City of San Francisco. Officials there suggest that Prop. 8
would increase their costs of caring for same-sex couples who could not obtain
health insurance, and will force the city to deny equal rights to some of its
In an unusual move, California Attorney General Jerry
Brown refused to defend Prop 8 in court. This left the task up to the ballot
measure's sponsors: -- a conservative religious coalition called "Protect
Some initial reactions to the lawsuit:
||Theodore B. Olson, a social conservative, former Solicitor General, and lawyer for the plaintiffs, said:
"From a conservative standpoint, people who wish to enter into the
institution of marriage wish to enter into something that is the
building block of our society, and that is itself a conservative value."
He also said:
"The Supreme Court has said it [marriage] is a part of
the right to liberty, of privacy, association and spiritual identity."
||David Boies, a social liberal and the other principal lawyer for the plaintiffs, said:
"This team really sends a message that this isn't
a question of anything to do with political ideology."
||The defense team is headed by Andrew Pugno, who was successful in defeating the
legal challenge to Proposition 8 in the California high court, and Charles Cooper,
formerly of the federal Justice Department. They cite a decision by the U.S.
Supreme Court to refuse to hear a same-sex marriage case from Minnesota in 1972
"... for want of a substantial federal question."
||Austin R. Nimocks, an attorney for the Alliance Defense Fund (ADF), a
fundamentalist Christian legal defense group that supports the anti-SSM
"We don't see it as a civil rights issue. Marriage is about bringing the two
different elements of society -- men and women -- together in one unit of form
that produces and raises the next generation. If it gets to the Supreme Court,
this case, yes, we're confident that [opposite-sex only] marriage will be upheld, in addition to the
citizens' right to vote on it."
||Pamela Karlan, an openly lesbian professor at Stanford's School of Law,
"It's instructive that the Supreme Court in 1956 dodged
the question of interracial marriage, but took it up in 1967. Courts very
seldom are way out in front of what at least elite public opinion is. The
judges consider themselves as products of the time and place in which they
||Jennifer Pizer, senior counsel at Lambda Legal, a LGBT legal advocacy group commented on the past strategy by most
LGBT groups to avoid federal courts, to work towards the legalization of SSM in
a few states, and to let the public get comfortable with the presence of SSM, before pushing to make SSM
available across the entire country. She said:
"We still believe that's a wise course" However Lambda
Legal does welcome this court case as "a showcase [...for] the many harms we
suffer from being denied equal marriage."
||David Boies, attorney for the plaintiffs commented on strategy, saying:
"The activists were split, and to some extent, there
was some split among generational lines. I think the older activists tended to
be more conservative; the younger, more aggressive."
A trial within the trial: Should the public see the trial testimony?:
The plaintiffs asked that the trial be televised -- an unusual arrangement. Chief U.S. District Judge
Vaughn R. Walker asked for input from the public on or before 2009-JAN-08 -- three
days before the trial is to begin. He received 138,542 responses from people: 32
opposed broadcasting the trial, 138,510 (99.98%) favored it. 8
Those opposed to SSM took a strong stand against making television
coverage available to the public. Valerie Richardson of the Washington
Times newspaper wrote:
"Attorneys for Proposition 8 backers said television coverage would
expose their witnesses to further harassment and intimidation. Backers
of Proposition 8 were targeted for harassment in the months after the
initiative's passage in November 2008. Some donors received threatening
e-mails, letters and phone calls, while churches and businesses were
singled out for boycotts and protests."
"Brian Brown, executive director of the National Organization for
Marriage, which campaigned for Proposition 8 but isn't a party to the
case, said he is worried about the safety of witnesses, who could
include contributors, campaign staff and volunteers."
" 'The question is really whether Judge Walker can put people on the
stand where they can be threatened,' said Mr. Brown. 'It's a question of
people's safety.' ..."
"The court ordinarily bans television, radio and photography, but the
Judicial Council of the 9th Circuit announced [on 2009-] Dec. 17 that it
approved on an experimental basis 'the limited use of cameras in federal
courts within the system'." 3
Edward Whelan, president of the Ethics and Public Policy Center
in Washington said:"Judge Walker seems intent on orchestrating a show
Attorney Charles Cooper, a Reagan administration lawyer who is leading
the defense of Proposition 8, argued that Walker had flouted federal
rules by opening the trial to video. And he insisted his witnesses could
be harassed if their testimony were aired over the Internet.
Those opposed to SSM emphasize that the experimental use of cameras
was initially intended for low-profile cases, whereas this trial has
generated huge interest in the media and among the public.
Rick Jacobs of the Huffington Post wrote about Maggie Gallagher,
the National Organization for Marriage (NOM) an anti-SSM group:
"James Madison ... wrote in Federalist No. 51 about the need for
separation of powers. Neither Madison, nor the US Constitution, ever
contemplated the concept of citizens voting to take each other's rights
away. In fact, Madison wrote, 'It is of great importance in a republic
not only to guard the society against the oppression of its rulers, but
to guard one part of the society against the injustice of the other
part.' Ms. Gallagher and her crew seem intent on setting Americans
against Americans, using every tactic at their disposal to sew fear and
discord, thus deeply fearing public scrutiny."
"Enter the now-famous lawsuit, in which the legal dream team of Olson
and Boies will argue that Prop. 8 violates many constitutional
provisions, not the least of which is the Fourteenth Amendment that
provides equal protection under the law. While NOM is not a party to
this suit, its finger prints are everywhere as is its constant demand
for secrecy in our democracy. Ms. Gallagher's staffer, Brian Brown,
had this to say about the Reagan-selected and Bush- nominated
Federal judge who is overseeing the case: 'He has attempted to make this
entire process a circus, and he wants to be the ringleader by putting it
"This case will affect millions of people in America. We see only one
rational response in a democracy: let the people see the trial. Because
individual lives may change as a result of this trial, secrecy has no
place in our civil society. We would think that Ms. Gallagher and her
colleagues would want the public to side with them. Are they afraid that
their cause fails when it is fully understood by the American people?"
The Courage Campaign -- a pro-SSM group -- strongly supports
televising the trial. They sent an alert on JAN-05 asking its members to
sign a petition in favor of television coverage. They received 70,000
signatures within 24 hours. 4 Their
chairperson, Rick Jacobs, said:
"The case presents issues that are very important to
the public, and will affect millions of people. However, if the case is
not televised, only a tiny fraction will ever be able to watch the trial
in person. By televising the trial, the public will be able to see for
themselves the arguments and evidence presented by both sides, and will
therefore have more confidence in the outcome of the trial." 4
The witnesses testifying against marriage equality, who would probably
almost all be
heterosexuals, may take comfort in the FBI
statistics of U.S. hate-crimes. The rate of reported gay bashing is on the
order of 900 per ten million gays per year; the rate of "hetero" bashing
-- violent hate crimes motivated by hatred of a person's heterosexual
orientation -- is on the order of 1 per ten million heterosexuals per
year. In any case, the new federal hate-crimes
law/ which was strongly resisted by social and religious
conservatives -- is now in effect and would give considerable protection
to the witnesses.
On JAN-06, Chief U.S. District Judge Vaughn Walker decided to compromise on
the televising of the trial. The trial will be "...streamed live in an overflow
room at the federal courthouse, as well as to the 9th Circuit's courthouses in
San Francisco; Pasadena, Calif., Seattle; and Portland, Ore." Two federal
courthouses in Illinois may also be added. He also approved having court
employees record the trial for later broadcasting on You Tube. He said
he felt strongly that "it's important for the transmission to be absolutely
within the court's control. ... I always thought that if people could see how
the judiciary really works, they would take a somewhat different view of it."
The proceedings were scheduled to be shown on You Tube
on a delayed basis at:
www.youtube.com/usdccand. However, an appeal to the U.S. Supreme Court by
anti-SSM groups resulted in an injunction to temporarily halt the
coverage. It was issued just hours before the trial began. The
Supreme Court made the injunction permanent on JAN-13. Fortunately,
there will still be the written transcript of the trial available.
In the meantime, scanning the contents of
You Tube with the search string marriage trial
produces links to many videos commenting on the trial.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
Karl Vick, "Same-sex marriage set for big day in federal
court," Washington Post, 2010-JAN-11, at:
Bob Egelko, "Prop. 8 trial begins today," San Francisco
Chronicle, 2010-JAN-11, at:
Valerie Richardson, "Gay-marriage foes slam plans to televise
Prop 8 trial. Witnesses harassment feared," Washington Times, 2010-JAN-06, at:
Rick Jacobs, "Judge Walker Asks You: 'Should the Olson/Boies
Trial be Televised'?" Huffington Post, 2010-JAN-06, at:
Lisa Leff, "Prop
8 Trial Will Be Recorded And Uploaded To YouTube, Judge Says," Huffington Post,
Lori Preuitt, "Tears flow during gay marriage trial," NBC Bay
Area, 2010-JAN-11, at:
David Savage & Maura Dolan, "No gay marriage trial video,"
Chicago Tribune," 2010-JAN-12, at:
Richard C. Paddock, "2 Couples Make Case for Gay Rights in Big
Trial," Sphere, 2010-JAN-12, at:
Copyright © 2010 by Ontario Consultants on Religious
Original posting: 2010-JAN-11
Latest update: 2010-JAN-12
Author: B.A. Robinson