Same-sex marriage ban issue goes to court in California

SAN JOSE, Calif. — As of Monday morning, the epicenter of the national debate over gay marriage returns to the same few blocks in San Francisco where it catapulted into a major public issue six years ago.

This time, the same-sex marriage wars will unfold in the city’s federal building, just a short walk from where San Francisco Mayor Gavin Newsom once riled the country by handing out marriage licenses to gay and lesbian couples at City Hall.
Now, the legal fight over gay marriage shifts into unprecedented
territory with the first trial ever held over the constitutionality of
a state’s ban on the right of same-sex couples to wed.

Over the next few weeks, Chief U.S. District Judge Vaughn Walker will consider a lawsuit challenging Proposition 8, the 2008 voter-approved initiative that restored California’s
ban on same-sex marriages. To most legal experts, the trial may lay the
groundwork for eventually propelling the gay marriage issue to the U.S. Supreme Court.
And those experts say the stakes in the Proposition 8 showdown are
immense for the entire gay rights movement if Perry v. Schwarzenegger,
as the California case is called, is etched in Supreme Court lore.

“It’s a dangerous ballgame, because if it does go to the Supreme Court, a lot is riding on that,” said Sara Benson, a law professor at the University of Illinois.

The American Foundation for Civil Rights sued in May on behalf of two same-sex couples — one from Berkeley, Calif.
— seeking the right to marry. To overturn Proposition 8, the group
attracted widespread attention by turning to conservative legal power
broker Theodore Olson, President George W. Bush’s solicitor general, to lead the legal team, along with prominent trial lawyer David Boies. San Francisco city officials also are attacking the law.

The Proposition 8 campaign is defending the law. Gov. Arnold Schwarzenegger has remained neutral even though he is the lead named defendant in the lawsuit, and Attorney General Jerry Brown has filed papers calling Proposition 8 unconstitutional.

The epic fight in Walker’s courtroom will largely be
a battle of dueling academics and experts on the subject of marriage,
child-rearing, discrimination against gays and other social issues. In
the end, to prevail, the plaintiffs must prove that Proposition 8
violates the U.S. Constitution’s equal protection clause by targeting
gays and lesbians without any government justification for excluding
them from California’s
marriage rights. And Proposition 8 supporters are going to have to back
up their claim that the state should reserve marriage to heterosexual
couples mainly because of what they say is the procreative purpose
behind marriage.

The lawsuit also targets the two-tiered system of marriage that now exists in California: The California Supreme Court,
in upholding Proposition 8 last year, left intact more than 18,000 gay
marriages licensed before Proposition 8 went into effect. Those
marriages took place after the California Supreme Court
struck down the state’s prior ban on gay marriage under the California
Constitution, a ruling wiped off the books by Proposition 8.

The current lawsuit raises claims under the U.S. Constitution, which the state Supreme Court was never asked to consider. The trial is now about the right of same-sex couples to marry from this point forward.

The plaintiffs plan to produce evidence Proposition
8 was motivated by bias against gays and lesbians and stems from a
history of discrimination against the gay community. The plaintiffs’
witness list includes a host of professors of history, economics,
psychology and sociology who will testify on the importance of marriage
and the impact of a marriage ban on same-sex couples. The witness list
includes other figures, such as San Diego Mayor Jerry Sanders, who has a lesbian daughter, and Ryan Kendall, a gay man who will describe “conversion therapy” he underwent in his youth.

The plaintiffs also plan to call key figures in the
Proposition 8 campaign to grill them about their effort to outlaw gay
marriage. “There’s a lot of ugly stuff out there we’ll be putting into
evidence,” said Therese Stewart, San Francisco’s chief deputy city attorney.

On the flip side, Proposition 8’s defenders will
present experts they say will show why the state has a right to
restrict the definition of marriage to heterosexual couples. The
defense says the central reason for upholding Proposition 8 is its role
in “regulating naturally procreative relationships between men and
women to provide for the nurture and upbringing of the next generation.”

Defense groups also say the trial is important for the dozens of states that have passed laws outlawing gay marriage.

“I think the biggest issue in this case is whether
or not we respect the right of the people to make social choices
through the democratic process,” said Austin Nimocks, senior legal counsel for the anti-gay marriage Alliance Defense Fund.

Same-sex couples across the state, meanwhile, hope the trial moves toward settling a question that has roiled California since Newsom held those San Francisco weddings in 2004.

“Having the same options and choices available as anyone else seems like a no-brainer,” said Lisa Miller, an archivist at Stanford’s Hoover Institute
who married just days before Proposition 8 passed. “But I don’t think
this is going to be resolved for a long time. Whatever happens, the
other side is going to keep fighting it as far as they can.”

What the trial is about

Same-sex couples argue that Proposition 8’s ban on
gay marriage violates the equal protection clause of the U.S.
Constitution, depriving them of the same rights heterosexual couples
have under California
law. The plaintiffs will argue that Proposition 8 was driven by bias
against gays and lesbians, is not backed by any government interest,
and is part of a history of discrimination against the gay community.
The defense will put on evidence it says shows such a law is a valid
attempt to preserve traditional marriage.

What’s at stake in the trial

Everyone from the judge to legal experts has predicted the Proposition 8 trial could lay the groundwork for the U.S. Supreme Court to tackle the gay marriage issue. Regardless of how U.S. District Judge Vaughn Walker rules, the losing party is certain to appeal to the U.S. Court of Appeals for the 9th Circuit. That would serve as another prelude to Supreme Court review.

The legal process is almost certain to stretch well
into 2011. In the meantime, barring a change at the ballot box, it is
doubtful there will be any change in California’s
status quo: Same-sex marriages licensed before Proposition 8 went into
effect will remain valid, while the law’s ban on more gay weddings
stays in force.

Key players in the Proposition 8 trial

The judge: Chief U.S. District Vaughn Walker

It is no small irony that the veteran San Francisco
judge has inherited perhaps the most important gay rights case of this
era. His original nomination to the federal bench by former President Ronald Reagan lapsed under immense pressure from Bay Area civil rights leaders, who targeted Walker for his representation of the U.S. Olympic Committee in a lawsuit over the “Gay Olympics.” President George H.W. Bush renominated him, he made it through Congress
and has since become anything but a predictable conservative in his
20-year career. A staunch libertarian, he’s presided over everything
from one of Silicon Valley’s first titanic tech fights between Apple and Microsoft to the legal showdown over the government’s warrantless wiretapping program.

The outcome of the Prop 8 trial with Walker is
anybody’s guess. This buttoned-down Republican once publicly came out
in favor of legalizing drugs. His view of Prop 8 may well turn on how
he balances his dislike of government regulation in private lives with
his deference to a state’s right to enforce its laws.

Plaintiffs attorneys:

Theodore Olson

Former U.S. Solicitor General under President George W. Bush from 2001 to 2004, Olson has long been considered one of the leading
conservative lawyers in the country. His decision to be one of the
central lawyers in the challenge to Prop 8 was a coup for gay rights
advocates seeking the right to marry for same-sex couples. Many legal
experts believe his mere presence on the legal team will aid any chance
of the case eventually succeeding in the U.S. Supreme Court, where he once argued dozens of cases.

David Boies

The liberal yin to Olson’s yang on the Prop 8 legal team, Boies is one of the most prominent trial lawyers in the United States. He most famously represented former Vice President Al Gore in the Bush v. Gore presidential election case, and he’s also well-known in Silicon Valley as the Justice Department lawyer who represented the government in its antitrust case against Microsoft. Boies is expected to be the chief cross-examiner of some of the anti-gay marriage expert witnesses.

Defense attorney: Charles Cooper

A former assistant Attorney General during the Reagan administration, Cooper is part of the same conservative Washington, D.C., legal establishment as Olson. He was enlisted to the lead the legal defense of Prop 8 by the ballot measure’s California sponsors, with assistance from the Alliance Defense Fund, a group aligned against gay marriage. Cooper, still with a trace of an Alabama drawl, has represented a host of conservative causes in the past, including a major challenge to a University of Michigan law school affirmative action program. He once clerked for late Chief Justice William Rehnquist.

The plaintiff couples:

Kristin Perry and Sandy Stier of Berkeley; Paul Katami and Jeff Zarillo of Burbank

Perry and Stier have been in a relationship for nine
years, and are the parents of four boys. Perry is executive director of
a state agency called First 5 California, while Stier is an information
executive with an Alameda County health services agency. They have been trying to marry since 2004, when San Francisco
temporarily issued marriage licenses. Katami and Zarrillo have been
together eight years, and have been trying to marry the past two years.

The state bystanders:

Gov. Arnold Schwarzenegger and Attorney General Jerry Brown

Schwarzenegger and Brown will be ghosts in the Prop 8 trial, as neither is defending the California
ban on gay marriage now embedded in the state’s constitution.
Schwarzenegger has remained neutral, despite the fact the case is
titled Perry v. Schwarzenegger. Brown, meanwhile, has declared that he
believes Prop 8 is unconstitutional, prompting Prop 8 supporters to try
to get him switched to the plaintiffs’ side. The judge refused, but
Brown’s position lends heft to the legal challenge.

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