January 7, 2010 at 4:25 pm EST | by Chris Johnson
Prop 8 trial begins Monday

The eyes of LGBT rights supporters will be on the proceedings of a California federal court case next week that could overturn the state’s ban on same-sex marriage — and possibly similar bans throughout the country.

The trial in the case of Perry v. Schwarzenegger will begin Monday. Judge Vaughn Walker of the U.S. District Court’s Northern District of California will preside and has called for expedited proceedings because of the serious nature of the complaints raised by plaintiffs.

During the trial, Walker will consider witness testimony, documents and other evidence and arguments from both sides over the constitutionality of Proposition 8, an amendment to the state constitution banning same-sex marriage. The amendment was approved in 2008 through voter referendum.

Attorneys Ted Olson and David Boies are representing plaintiff couples that were denied marriage licenses in California because of the state’s ban on same-sex marriage.

While it’s the first time these lawyers have worked together on a case, they have crossed paths before in opposition to each other. In the 2000 case of Bush v. Gore, Olson represented then-Republican presidential nominee George W. Bush while Boies represented then-Democratic presidential nominee Al Gore.

Olson and Boies — who are litigating on behalf of the American Foundation for Equal Rights, a California-based LGBT organization founded last year — are arguing Prop 8 is unconstitutional because it violates the Equal Protection Clause of the Fourteenth Amendment and singles out LGBT people for discrimination, among other reasons.

Yusef Robb, an AFER spokesperson, said, “preparations are intense” for the legal team that is arguing that Prop 8 is unconstitutional.

“Proposition 8 is wrong and it’s unconstitutional, and we will demonstrate that through the testimony of our plaintiffs, expert [witnesses], evidence and arguments from an unmatched legal team,” he said.

Robb said the trial should last about three weeks, but could drag out for five weeks. Supporters of the lawsuit are expecting the case to go to the U.S. Supreme Court, but first the case would have to be heard in the Ninth Circuit Court of Appeals.

Geoff Kors, executive director of Equality California, said the case is significant because “it’s a critical piece in the ongoing fight for full equality.”

“We are extremely hopeful that the federal courts will strike [down] Prop 8 as unconstitutional because it clearly violates the federal Constitution, especially in light of the California Supreme Court decision that upheld Prop 8 in the California Constitution,” he said.

Equality California was among the groups that filed a “friend-of-the-court” brief in favor of overturning Prop 8. Kors said he’s confident Walker will overturn Prop 8 because it’s “a clear violation of the United States Constitution.”

Other groups that have filed “friend-of-the-court” briefs are the American Civil Liberties Union, Lambda Legal and National Center for Lesbian Rights. The City and County of San Francisco — under the leadership of City Attorney Dennis Herrera and Chief Deputy City Attorney Therese Stewart — are supporting the plaintiffs as co-counsel and are focusing on the negative impact Prop 8 has on government services and budgets.

While the case is focused on the constitutionality of Prop 8, it’s possible that marriage bans throughout the country could be struck down if the case goes to the Supreme Court and it rules in favor of the plaintiffs.

Robb said the question of whether a Supreme Court ruling would end marriage bans throughout the country “would depend on the particular issues the court chooses to review, as well as how they specifically draft their opinion.”

One contentious issue leading up to the trial was whether the judge would allow TV cameras in the courtroom to record and broadcast the trial.

Opponents of Prop 8 urged Walker to allow proceedings to air on TV to bring more attention to the marriage issue, while supporters of Prop 8 are arguing against such a move because they feel backers of the amendment would be subject to harassment and intimidation.

Walker ruled Wednesday that the trial will be recorded — but the broadcast will be delayed and it will air on the Internet and not live TV, according to media reports.

Walker decided to post a delayed recording of the case challenging Proposition 8 on YouTube, according to the The San Francisco Chronicle. AFER announced the decision in a Twitter posting: “Judge: pending approval from 9th Circuit, trial will be recorded daily for delayed posting to internet.”

Robb said AFER believes it’s important for the trial to air to show the harm that Prop 8 has caused same-sex couples.

“This trial is a chance for the true harm of Prop 8 to be revealed through facts, evidence and the law, without the spin, slogans and deception that dominate political campaigns,” he said. “These proceedings should be available to as many people as possible.”

Kors also supports airing the trial. He said the broadcast would allow people who are undecided on same-sex marriage to learn more about why marriage rights are important to LGBT people.

“It’s an opportunity for them to see us for who we really are, and for them to hear the arguments both from our side about why equality is so important and why denying us the freedom to marry harms us and our families, and to really hear what the right-wing’s justification for that discrimination is,” he said.

Kors also claimed that airing the trial would reveal that supporters of Prop 8 distorted the truth during the 2008 campaign as they encouraged voters to approve the amendment.

Among the disputed arguments that supporters of Prop 8 put forward was that failure of the amendment would mean that children would have to learn about same-sex marriage in public schools.

“It’s different when you’re arguing in court and testifying under oath than it is when you run a 30-second television ad that tells lies,” he said. “So it’s a chance for people to hear the truth from both sides, which is why we want it to be televised and clearly why the right-wing doesn’t because it’s not an environment where they can control what they’re saying.”

While predicting that the trial court would strike down Prop 8, Kors said it’s possible that the ruling could be overturned by a higher court.

But if that happened, Kors said the trial court proceedings would still be helpful in persuading the public to overturn the amendment at the ballot box. Equality California has chosen 2012 as the year to challenge Prop 8 through another voter referendum.

“It’s an opportunity for the public to learn more about why marriage equality is so important for same-sex couples and their families — and that the lies the right-wing told in California and more recently in Maine are nothing but lies,” Kors said. “And that, I think, is going to be really important in moving public opinion.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

  • In bringing prop. 8 to trial, we should remember the old Chinese proverb, “Be Careful What you Wish For.”

    While I feel as strongly as most readers here about the need for marriage to be available to us, I cannot help but think that it will hurt us if we try to bully the will of the people through legal tricks. Consider the abortion issue as an example. It was getting close to be made legal in some places and situations with general support when the courts intervened and made an edict. Now it remains a chasm in our public thought. If abortion laws had changed in most places through legislative action, and bills to change them back failed several times it would considred a dead issue in the political world. Only the “gadflies” would be pushing it.

    Public opinion is evolving in our favour now that more people are out of the closet, and thus more people understand us as just regular harmless folks who care about their loved ones and their country. Even basic rights for us, such as employment non-discrimination have gone from about 20% public support in the 1980’s to 80% today. Almost every poll shows stronger support for our rights from younger people in both parties and of many religious traditions. We need to build on this trend and educate people and we need to be examples of solid couples and good citizens so this can all get resolved in our favour democratically.

    …Sam Brown

  • Seeking equal rights through the courts a ‘legal trick”? Hardly. One major role of the Courts in our REPUBLIC, not a democracy, is the protection of minority rights against majority tyranny – read The Federalist Papers by Jay, Hamilton, and Madison.

    And the present course by gay leaders to hide from Federal protection has hardly worked: 35 states ban same-sex marriage, NJ, NY booted it, MA, CA, and HI all overturned same-sex marriage laws.

    Therefore it is only logical, and if we want equal rights now instead of waiting 20 years, we need to pursue all avenues available. You may be 8 years old, so having equal marriage rights by 2030 would be ok, but for the majority of us that is simply too long. It’s now or it aint worth much when your 60 or 70 years old.

    And besides, in 20 years most people will support gay marriage, so what do we have lose? If gay marriage is struck down, then in 20 years we can finally win it your way – through popular vote.

  • I say use legal tricks or whatever it takes to be treated equally. This is 2010 and nobody should be denied equal rights.

    We have all seen or read of homosexuality in other species of animals. It’s acceptable behavior because they are lower animals. We know it’s wrong because in our simplest understanding of biology, sex is for the creation of new life.
    With human homosexuality, we tend to view those infected as we would others with birth defects and disease, consequently we embrace and protect them from harm. Unfortunately gays are humans with minds, not cats and dogs, and what has happened is they have used this protection to enhance their predatory nature. They have learned to accept their defect as normal, because it is normal in nature to have defects. The problem is they misused the word normal, and now claim to be normal or free of defect. They have twisted the reality of being defective/diseased people and created an illusion of being in a proper state of existence.
    Science not religion, or the combination will prove the gays undoing. We will soon create the technology to design sexual preference at birth. Eventually homosexuality will be phased out of existence. After all what rational minded couple would choose their newborns to be gay?

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