Sometime in the next few weeks, California may legalize same-sex marriage. Again.
Judge Vaughn Walker, chief justice of the United States District Court of Northern California, is expected to issue a ruling on Perry v. Schwarzenegger — better known as “the Prop. 8 trial” — in the coming days. The decision will follow a series of complicated political twists and turns that have shaped the gay marriage debate in California over the past several years.
In 2000, California voters passed Proposition 22, the California Defense of Marriage Act. The act states that only “marriage between a man and a woman is valid or recognized in California.”
On February 12, 2004, Mayor Gavin Newsom of San Francisco ordered the city to issue marriage licenses to same-sex couples. Approximately 4,000 same-sex couples obtained marriage licenses from that time up until March 11 of that year, when the California Supreme Court halted same-sex marriages. In August, the court nullified all of the same-sex marriages that had occurred since February. But on May 15, 2008, the California Supreme Court reversed course and struck down Proposition 22, ruling that sexual orientation is not “a legitimate basis upon which to deny or withhold legal rights.”
Then, six months later, California voters passed Proposition 8, which amended the state constitution to restrict the scope of marriage to exclusively between a man and a woman. The California Supreme Court upheld the amendment but this time did not nullify the same-sex marriages that had taken place before Prop. 8 had passed.
The plaintiffs in Perry are Kristin Perry and Sandra Steir; and Paul Katami and Jeffrey Zarrillo, a lesbian and gay couple, respectively, who were denied marriage licenses. They have filed a federal legal challenge against California in the hopes of overturning Prop 8. Closing arguments in the case were held last Tuesday. Walker submitted an extensive list of questions to the lawyers for both sides to discuss during the closing arguments.
The questions asked lawyers to address, among other things, whether there was ‘rational basis’ for the passage of Proposition 8, the role of voter intent in passing the legislation, and the history of marriage. Walker repeatedly interrupted lawyers for both sides to question them on these and other issues, but he wasn’t the only contentious presence in the courtroom. Former Solicitor General Ted Olson, lawyer for the plaintiffs, repeatedly attacked the defense for admitting uncertainty about the negative consequences of permitting gay marriage. Not knowing, Olson insisted, was not sufficient basis enough to prohibit the practice. He further focused on wording on the Prop 8 ballot that claims passing the proposition “protects our children from being taught in public schools that ‘same-sex marriage’ is the same as traditional marriage.”
Olson said this language furthered “not a very subtle theme that there is something wrong, sinister or unusual about gays” and pointed to it as evidence of a “discriminatory animus” against homosexuals. If the judge finds that Prop. 8 was motivated by discrimination, that could provide him a basis to overturn it. Olson referred often to Romer v. Evans, in which the Supreme Court struck down an amendment to the Colorado constitution that would have prevented homosexuals from being recognized as a protected class under the law. He also drew heavily on the precedent of Loving v. Virginia, the landmark Supreme Court decision that legalized interracial marriage, and compared discrimination based on race to discrimination based on sexual orientation.
Charles Cooper, arguing for the defense, did admit that he was unsure of the ultimate effects of legalizing gay marriage, even cracking a joke about how many times he had repeated the phrase “I don’t know” during the trial. But, he said, that lack of knowledge is a compelling reason to maintain current restrictions against gay marriage. He emphasized that marriage has historically been restricted to heterosexual couples for the purposes of procreation. He also argued that children are better off when raised by their biological mother and father:
The historical record leaves no doubt …. that the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.
He repeated this idea of “[channeling] potentially procreative sexual relationships into enduring stable unions” numerous times throughout his closing argument. Cooper also stressed that allowing same-sex marriage would “deinstitutionalize” marriage. A fair amount of press has suggested that the closing arguments were rather one-sided and that Olson’s arguments were substantially more compelling than Cooper’s. Andrew Cohen, writing for Politics Daily, wrote that Walker will likely rule to overturn Prop 8 because “he has been left with virtually no other choice as result of the odd tactics and weak case presented to him by opponents of same-sex marriage.”
The defense presented only two witnesses, far fewer than the plaintiffs. Six witnesses were originally scheduled to testify for the defense; however, due to the high-profile nature of the case, several witnesses dropped out because, as Newsweek reported, they were afraid that “they will be targeted for retaliation, both professionally and personally.”
Originally, Walker said he would allow a limited video feed of the trial, but the Supreme Court overruled him in January. Wendy Wright, president of Concerned Women for America, suggested that the purpose of Walker’s ruling was to “intimidate witnesses” for the defense who were unwilling to testify for fear that they would become targets of “the campaign of intimidation and harassment and discrimination against the Prop 8 supporters.” Newsweek reported that supporters had received death threats and had their cars egged.
Much has also been made of the testimony by David Blankenhorn, the founder and president the Institute for American Values and one of the two witnesses to testify for the defense. During cross-examination, it emerged that Blankenhorn had written in The Future of Marriage that “We would be more American on the day we permitted same-sex marriage than we were on the day before.” The statement, some have charged, invalidates the testimony Blankenhorn provided against legalizing same-sex marriage.
But Maggie Gallagher, president of the National Organization for Marriage, disagrees with that assessment.
“I think David is living proof that you can be concerned about protecting our marriage tradition without having a bigoted or hateful or resentful bone in your body about gay people,” she said. Nonetheless, Gallagher, who attended closing arguments, speculates that Judge Walker will likely rule to overturn Proposition 8. She feels that, throughout his line of questioning, he made it clear where he stands on the issue, at one point suggesting there might be a fundamental right to same-sex marriage in the Constitution. Wright agrees. She called the trial “a joke” and said that Walker had not handled the case in an even-handed manner. Walker, Olson and Cooper all go back a long way. In fact, they seem to have been transplanted straight out of the Reagan administration and into the courtroom.
Walker became a judge after being nominated by George H. W. Bush, but he was first nominated to the bench by Reagan in 1987. He was not confirmed by the Senate Judiciary Committee at that time because of his supposed “insensitivity” to gays. Walker had served as the lawyer for the U.S. Olympic Committee and sued a group for calling an athletic event the “Gay Olympics.” Ironically, Walker is openly gay himself. His sexuality, though, has stayed largely under the radar in Perry. Judge Maxine Chesney, who also serves on the federal court, has said that Walter’s sexuality “is not a political part of his life.” Ted Olson, the lawyer for opponents of Prop 8, is also something of a contradiction. He served as Reagan’s assistant attorney general, represented George W. Bush in Bush v. Gore, and then did a stint as Bush’s solicitor general. In an article he wrote for Newsweek entitled “The Conservative Case for Gay Marriage,” Olson answered the question that has many people puzzled: “How could a politically active, lifelong Republican, a veteran of the Ronald Reagan and George W. Bush administrations, challenge the ‘traditional’ definition of marriage and press for an ‘activist’ interpretation of the Constitution to create another ‘new’ constitutional right?” Olson has been vocal in arguing that he is not betraying his conservative views in his fight to overturn Prop 8. But Gallagher points out that legal conservatives in particular are “disturbed” by his argument that there is a right to same-sex marriage in the Constitution. Charles Cooper, too, served under Reagan as his assistant attorney general after Olson. The National Law Journal named him one of the 10 best civil litigators practicing today. Yusef Robb, a spokesperson for the American Foundation for Equal Rights, the organization that helped bring the lawsuit against Prop 8, called the trial “a duel between two of the finest federal advocates practicing today.” He did not see the closing arguments as one-sided, necessarily, but rather said that “Ted Olson’s closing was profound and moving and remarkable” and that what people were referring to as a one-sided argument was really just the result of Olson’s legal brilliance combined with a very compelling constitutional argument for same-sex marriage. Regardless of Walker’s decision, the case will inevitably be appealed. If it reaches the Supreme Court, as observers believe it will, it could decide the future of same-sex marriage in the country. Should the court overturn Prop 8, it will effectively make same-sex marriage legal in all fifty states. But if the court upholds Prop 8, Gallagher says, the ruling will leave each state to decide its own policy on same-sex marriage. Walker is expected to decide the case in the next few weeks.