Gay Issues

California's Prop 8 Trial Could Be Gay Marriage's Roe v. Wade

| by Baptist Press

SAN FRANCISCO, CA -- A high-profile federal trial that could lead to the overturning of California Prop 8 and traditional marriage laws in every state began in California Monday, but not before Prop 8 supporters won a major victory at the U.S. Supreme Court.

The nation's highest court issued a temporary order preventing the trial before U.S. District Judge Vaughn Walker in San Francisco from being posted on YouTube at the end of each day, as Walker had previously said he would permit. The Supreme Court order remains in effect until Wednesday at 4 p.m. Eastern, before which the justices could make it permanent or could allow the posting on YouTube to commence. Only Supreme Court Justice Stephen Breyer dissented in Monday's ruling.

It's the second time in recent weeks that an order by Walker -- who critics say has stacked the deck against Prop 8 backers -- has been reversed. In December the U.S. Ninth Circuit Court of Appeals said Prop 8 supporters did not have to release private internal e-mails and memos from their fall 2008 campaign, as Walker had instructed them to do. Passed by a margin of 52-48 percent, Prop 8 was a constitutional amendment that restored the traditional definition of marriage and overturned a California court ruling that had legalized "gay marriage."

Attorneys with ProtectMarriage.com, the group that sponsored Prop 8, had filed both appeals.

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The case, Perry v. Schwarzenegger, was filed on behalf of two homosexual couples in May by Ted Olson and David Boies, the two attorneys who reached national prominence in 2000 when they represented George W. Bush and Al Gore, respectively, in Bush v. Gore. They are now teammates, hoping to see their case overturn traditional marriage laws in the same way that, say, Roe v. Wade reversed pro-life laws. Most likely, the case eventually will end up before the U.S. Supreme Court.

"This is the first serious case where the federal constitution has been invoked as the basis for a right to same-sex marriage," Jordan Lorence, senior counsel with the Alliance Defense Fund and one of the attorneys involved in defending Prop 8, told Baptist Press. "All of the other cases that we've heard about over the years -- Massachusetts and Connecticut -- those were all suits under their respective state constitutions. ... [This case] potentially could be used to challenge all the state marriage amendments, all the state laws that define marriage as a man and woman, as well as the federal Defense of Marriage Act."

Olson and Boies argue that Prop 8 violates the U.S. Constitution's Equal Protection and Due Process Clauses and that it discriminates and makes same-sex couples second-class citizens. In a July Wall Street Journal article, Boies wrote that passage of Prop 8 "is the residue of centuries of figurative and literal gay-bashing." If they win, then constitutional marriage amendments in 29 other states are in jeopardy, as are the traditional marriage statutes in states -- such as North Carolina and Minnesota -- that have yet to pass marriage amendments.

The fact that the case is going to a full-blown trial, with witnesses and cross-examinations, itself is controversial, and some critics say, an example of Walker's possible bias. To date, court cases involving the issue of "gay marriage" have avoided witnesses and instead have examined written documents, such as legislative writings, previous court rulings and scholarly studies. This will be the first time where the defenders of a marriage amendment have been put on the witness stand with their motives in question.

Walker previously said he wanted to examine "the history of discrimination gays and lesbians have faced" and the "relative political power of gays and lesbians, including successes of both pro-gay and anti-gay legislation." According to California Lawyer magazine, Walker further said he may want to examine "the history and development of California's ban on same-sex marriage" and "whether a married mother and father provide the optimal child-rearing environment ... [and] whether excluding same-sex couples from marriage promotes this environment."

Said Lorence, "This is a trial that shouldn't be happening. The kind of questions that they're going to be going into in this case are public policy matters. They're not constitutional or legal matters. The way in American society that these issues are resolved is for the people or their elected officials to listen to all the arguments and to decide the public policy matter. Basically, it's a legislative hearing taking place in a courtroom. The people of California heard all the arguments pro and con, and 7 million of them -- a majority -- voted to define marriage as one man and one woman. The court should simply stay out of that and let this process work out."

Lorence said his side is opposed to posting the trial on YouTube for two basic reasons: to protect the integrity of the judicial process and to protect witnesses.

"During the Prop 8 campaign, there were many reports and incidents of intimidation, violence, etc., against donors to the Prop 8 community and against people who spoke in favor of Prop 8," he said. "If witnesses came in here to say Prop 8 was a reasonable public policy decision and their face is then blasted all over YouTube and others, it would be an invitation for the same type of treatment that happened during the Prop 8 campaign. The videos of their testimonies also could be altered."

Walker's ruling, Lorence said, "was a huge break from a half-century of rules where they don't allow cameras in the courtroom -- either still or video." The U.S. Supreme Court records the audio of its oral arguments but, in most cases, releases the recordings only at the end of the term. Lorence, though, said there's a difference between the highest court in the land and a trial court -- the latter at which "you have regular people as witnesses, rather than simply professional judges and professional lawyers."

Whatever Walker decides on the larger issue in the case, it will be appealed to the Ninth Circuit, generally considered the most liberal federal appeals court in the land. From there it would go to the U.S. Supreme Court.