U.S. / Perry v. Schwarzenegger and the nature of marriage

In November of 2008, the people of California voted to pass a ballot proposition and constitutional amendment called the California Marriage Protection Act, or Proposition 8, which added a new provision to the Declaration of Rights of the California Constitution. The amendment states: “Only marriage between a man and a woman is valid or recognized in California” and went into effect on the day after it was passed. In the months leading up to the vote, proponents of the amendment spent $39.9 million, while the campaign to defeat it spent $43.3 million, making it the most expensive campaign of any (except the US presidential election) in America. Proposition 8 does not invalidate marriages between gay couples already granted by the state before it was passed, and it has no bearing on civil unions or domestic partnerships, both of which are a possible means whereby gays receive the same legal benefits as married couples. Thus, the battle over Proposition 8 concerned only the definition of the word “marriage.”

Since the passage of Proposition 8, gay rights advocates have redoubled their efforts to secure the legal means to marry. Soon after the amendment had taken effect, two lawyers, Theodore B. Olson, a prominent conservative and the former solicitor general under President George W. Bush, and David Boies, a Democrat and the trial lawyer who opposed Olson in Bush v. Gore, joined forces to test the new amendment with a court case, Perry v. Schwarzenegger. These two unlikely partners represent two gay couples, who argue that the new amendment has infringed on their civil rights. Meanwhile, the Attorney General of California, Jerry Brown, has refused to defend the case, because he says that Proposition 8 violates the 14th Amendment of the US Constitution and should be struck down. Instead, the official proponents of Proposition 8 stepped forward and offered to defend the lawsuit.

The judge in the case, Vaughn R. Walker, has allowed the lawyers for the plaintiffs to call a series of expert witnesses to testify concerning the history and nature of marriage (from a cultural standpoint), the history of discrimination against gays in the United States, the psychological effects for gay people who are denied the right to marry, and even the loss to the state economy as a result of not allowing gays to marry. Judge Walker also attempted to have the trial broadcast live to various courthouses in California and then posted on YouTube, though the Supreme Court ruled that live broadcasting must be stayed. The impetus to broadcast the proceedings and the fact that these particular expert witnesses have all been allowed to testify indicate that it is marriage itself, as well as a culture that has not embraced homosexuality, that are on trial.

Most observers, as well as the parties involved, believe that no matter what the decision in the trial, the case will move quickly to a higher court, until it reaches the Supreme Court. The lawyers for the plaintiffs believe that, like Brown v. Board of Education and Loving v. Virginia, Perry v. Schwarzenegger is a watershed civil rights legal case that will usher in a new era of increased rights and greater acceptance for homosexuals in the United States. Theodore Olson observed that he wants the case to be a “teaching opportunity, so people will listen to us talk about the importance of treating people with dignity and respect and equality and affection and love and to stop discriminating against people on the basis of sexual orientation.” As the trial progresses, one group, Equality California, has already begun a massive grass-roots campaign to overturn Proposition 8 through the introduction of another ballot proposition.

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