Marriage on Trial

Opening arguments in Perry v. Schwarzenegger began Monday in a San Francisco courtroom before a packed crowd. The much-anticipated, momentous trial marks the first time that the issue of marriage is being debated in a federal trial with witnesses, experts, and cross-examination. All previous challenges to marriage have been in state courts where judges ruled based on written records – legislative writings, scholarly publications, previous legal rulings, and in some cases the official statements in voter-information pamphlets. 

 

The federal venue to challenge the constitutionality of Proposition 8 means that much more than the vote of the people of California is on trial. The outcome could also affect the definitions of marriage in 45 other states plus the federal Defense of Marriage Act (DOMA), a Clinton-era law that allows states to define marriage as only between a man and a woman. The Alliance Defense Fund’s Austin R. Nimocks told the Christian Post, “What’s at stake in this case is not only the definition of marriage in California but the potential that Americans will be forced to forfeit the core of our democracy by allowing a small group of wealthy activists to impose their will on a state – or an entire nation – through the courts.”  

 

Perry v. Schwarzenegger, filed on behalf of two homosexual couples by nationally prominent attorneys Ted Olsen and David Boies, challenges the constitutionality of Proposition 8 under the Equal Protection and Due Process Clauses of the 14^th Amendment to the U.S. Constitution. Olsen and Boies say Proposition 8 discriminates against the plaintiffs, making them second-class citizens. Boies, who has written that “Proposition 8 is the residue of centuries of figurative and literal gay-bashing,” and Olsen plan to prove the animus and discriminatory intent of the proponents and voters in passing Proposition 8.

 

While both Attorney General Jerry Brown and Governor Arnold Schwarzenegger were named in the suit, they refused to defend California’s Constitution as amended by the people, leaving ProtectMarriage.com, the proponents of the ballot measure, to defend the vote of the people. They argue the universality of heterosexual marriage as the bedrock of civilization, the ideal place for the nurturing and raising of children – and the people’s right to define marriage as only between a man and a woman.

 

Following opening arguments on Monday, peppered with frequent interruptions from the judge, the four plaintiffs gave emotionally charged opinions and personal stories. Experts, heavily biased toward same-sex marriage, portrayed their beliefs that same-sex marriage is no less suitable than heterosexual marriage. However, on cross-examination, history professor Nancy Cott conceded she couldn’t predict the societal consequences of homosexual marriage. She also admitted that the raising of children by both a mother and a father is a legitimate purpose promoted by traditional marriage.

 

The pre-trial decisions of presiding Judge Vaughn Walker – and the fact that Perry v Schwarzenegger has progressed to a full-blown trial with testimony and witnesses surprises many court watchers. The Alliance Defense Fund’s Jordan Lorence told the Baptist Press, “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."

 

Moreover, Edwin Meese III, Reagan-administration attorney general, wrote in an insightful New York Times op-ed, “But most disquieting for supporters of traditional marriage is a series of pretrial rulings issued by Judge Vaughn R. Walker that have the effect of putting the sponsors of Proposition 8, and the people who voted for it, on trial.”

 

Walker appears ready to put the thoughts, motives, and intentions of the proponents on trial, and has ruled that advertisements, press releases, and even the personal beliefs and private internal communications are open to the plaintiffs in their hunt to prove animus and ill-will. Only by appealing to the Ninth Circuit Court of Appeals were the proponents of Proposition 8 able to protect some of their private internal campaign communications.

 

Days before the trial, Judge Walker also decided to allow video coverage of the trial. Up until last month, the federal judiciary has had a policy of barring courtroom broadcasts; however, last month, the Ninth Circuit decided to experiment with “limited use” of cameras in its courtrooms, and Walker decided to open this trial to video recording and streaming on YouTube. On Saturday, attorney Charles J. Cooper, a noted D.C.-area litigator who is leading the Prop 8 defense, filed an emergency appeal with the U.S. Supreme Court. Less than an hour before the trial began on Monday, the Supreme Court issued a temporary order barring the transmission of the proceedings.  

 

Yesterday, the Supreme Court ruled 5-4 that “the District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.”

 

The intimidation and harassment of donors and proponents of Proposition 8 after its passage lend credence to the idea that witnesses on Prop 8’s behalf could well suffer the same ill-treatment should their words and likenesses be broadcast worldwide. Their safety would be an issue, plus their freedom to testify might be impeded. One litigant on behalf of traditional marriage, fearing reprisal upon himself and his family, has already asked to withdraw.

 

Perry – already dubbed the Roe v. Wade of the marriage issue, is expected to last for several weeks. And once a decision is handed down by Judge Walker, it is expected to be appealed and ultimately decided by the United States Supreme Court. 

 

You can keep up with the daily happenings, by signing up for Twitter and Facebook updates, or following several blogs from within the courtroom:

 

·     ProtectMarriage.com on Twitter

·     ProtectMarriage.com Blog (page down)

·     Alliance Defense Fund Perry Resource Page

·     San Jose Mercury News complete coverage of the trial – includes updates, blog, and a Twitter feed.