The push to make same-sex marriage the law of the land hits the fast track this week as the Perry v. Schwarzenegger trial starts today in San Francisco.
Supporters of same-sex marriage are already comparing Perry to the Brown v. Board of Education, the landmark 1954 civil-rights case. To opponents, however, it’s starting to feel like the second coming of Roe v. Wade.
The federal lawsuit challenges the constitutionality of Proposition 8, the 2008 state ballot measure affirming that marriage is between one man and one woman. Proposition 8 passed with 52 percent of the vote, nullifying a California Supreme Court decision in May 2008 legalizing gay marriage.
The trial’s implications for marriage are enormous. If U.S. District Court Chief Judge Vaughn Walker declares that Proposition 8 violates the constitution, not only will same-sex marriage become law in California, but traditional marriage laws in every state will be vulnerable to federal legal challenges.
Even though the trial is expected to last three weeks, Proposition 8 proponents were bracing themselves for defeat even before the crack of the first gavel.
"We do not expect to win at the trial level," said Brian Brown, executive director of the National Organization for Marriage, in his weekly update to the group’s membership.
The pro-Proposition 8 side contends that Judge Walker is biased, pointing to a series of courtroom moves that appear to work in favor of the initiative’s opponents. First, there was his unusual decision to hold a trial on the merits of same-sex marriage, instead of making a ruling on the law.
"There shouldn’t be a trial on this. It should have been resolved on the rule of law with pleadings," said Jordan Lorence, senior legal counsel for the Alliance Defense Fund, an Arizona-based Christian legal organization helping defend Proposition 8.
Next there was Judge Walker’s ruling in October to hand over private Proposition 8 campaign documents to the plaintiffs, saying that they were entitled to search them for evidence that the "Yes on 8" camp had attempted to exploit prejudice against gays. A federal appeals court reversed his ruling in December, holding that the communications were protected by the First Amendment.
Last week, Judge Walker again infuriated Proposition 8’s legal team by agreeing to televise the proceedings, even though federal courts have long banned cameras in the courtroom. The trial was scheduled to be videotaped and shown on YouTube, but the Supreme Court blocked Judge Walker’s decision hours before the trial was to begin Jan. 11. The order is in effect until Wednesday, Jan. 13.
Less than a month before the trial, the Ninth Circuit Court of Appeals approved a pilot program allowing the telecast of non-jury civil trials last month. Those in favor, including a media consortium, argued that the case would be an ideal test case because of the strong public interest in the issue.
Proposition 8 attorneys had argued that their witnesses would be intimidated by appearing on camera. Donors to the Proposition 8 campaign know a thing or two about intimidation: They were harassed and threatened by angry gay-marriage proponents after the state elections board released their names and contact information.
Critics accuse Judge Walker of running an outcome-driven kangaroo court. "Vaughn Walker has attempted to make this entire process a circus, and he wants to be the ringleader and put it on television because he’s clearly biased," said Mr. Brown.
The Proposition 8 side was facing an uphill battle even before the judge’s rulings. It’s California Attorney General Jerry Brown’s job to defend state law against legal challenges, but in this case he refused, citing his strong opposition to the initiative.
As a result, the Yes on 8 forces had to find their own legal counsel. Leading the defense is Charles Cooper, a top trial lawyer, former clerk to Justice William Rehnquist, and assistant attorney general under President Reagan, with assistance from his firm, Cooper & Kirk, and the ADF.
Since Proposition 8 proponents were forced to hire private counsel after Brown refused to take the case, it would seem only fair that the state of California would cover their legal expenses. But that’s not the case.
"Is the state of California paying us? I wish they were," said Lorence. "Let’s just say this is our gift to the state of California."
Instead, the team is asking for donations from supporters to defray their expenses. It’s doubtful they’ll have the same success as their challengers, whose fundraising arm is led by a group of liberal Hollywood activists under the name the American Foundation for Equal Rights.
The foundation’s leaders include activist and actor Rob Reiner, along with the producer and screenwriter of the movie "Milk," about the life of slain gay icon Harvey Milk.
The lawsuit was filed by four gay Californians who had their marital unions dissolved with the passage of Proposition 8. They’re being defended by the legal dream team of Theodore Olson and David Boies, the attorneys who famously represented George W. Bush and Al Gore in the legal battle over the 2000 presidential election.
If Judge Walker rules against Proposition 8, supporters are expected to file an appeal with the Ninth Circuit, the most liberal court of appeals in the nation. The next step would be the Supreme Court, where, if Perry is accepted, the case may finally play out on a neutral field.