Prop. 8 Trial – Part One: Background

There’s no possible way to fit all of this in one post. I’ll start here and write a series summarizing the trial and what I predict will happen. I’ll start with some background for the trial.

First let me make clear, I’m not a lawyer. I’m just an interested gay person who thinks this trial will affect all our lives. I don’t even live in California. I’m pretty inquisitive and if I say something, I’ve researched it quite a bit, but that doesn’t mean I’m not wrong. I’m not completely confident that I’ll get all the legal aspects right and if anyone wants to comment to correct errors, please feel free.

Two gay couples in California, one male couple and one female couple, attempted to get married in California, but were denied a marriage license since Prop. 8 had passed, limiting marriages in California to one man and one woman. They decided to combine their cases and sue the Governor and the Attorney General, along with a few others in federal court. Kristin Perry is the name on the case, so it is called Perry v. Schwarzenegger.

The plaintiffs are Boies and Olson, the defense is the Yes on 8/Protect Marriage side let by Andy Pugno. In the future I’ll refer to “defense” and “plaintiff” instead of their names.

In the complaint the plaintiffs allege that the adoption of Prop. 8, the amendment to California’s Equal Protection Clause in the Constitution stating that marriage is between a man and a woman violates Due Process and the Equal Protection Clause of the US Constitution.

They allege irreparable harm and say that a permanent social stigma will result from Prop. 8.

They ask for declaratory and injunctive relief, which is asking the court to declare Prop. 8 a violation and prevent its enforcement.

One of important arguments being made is that Prop. 8’s campaign and the initiative’s adoption were based on animus toward gay people. This just means that they’re saying the ONLY reason for laws against gay people is animus. There is no social or moral need to enact anti-gay legislation, according to the plaintiffs. The plaintiffs are suggesting that gays should be a “suspect class,” a class that has historically been discriminated against and thus should be protected under laws. Currently federal courts and the Supreme Court don’t recognize gays as a suspect class, so this would set a new precedent.

With a suspect class, it should be noted, there is a higher level of scrutiny placed on any law related to the class facing discrimination. This in effect means that most laws against gays would have to be eliminated if it is held that gays are indeed a suspect class. That means no more Defense of Marriage Act, no more Don’t Ask Don’t Tell. That determination in itself wouldn’t legalize marriage in all fifty states but it would make it a lot easier to do that, and it would be a lot easier to pass employment discrimination laws statewide and federally.

That is the preferred outcome for our side. It would completely overhaul every discriminatory law and it would change the future for gays to an extreme point. Everything would be different.

Now, in addition to that, if it goes to the Supreme Court and they hold that bans on gay marriage are based on animus and gays are protected, and that bans also violate those amendments to our Constitution, gay marriage WILL be legal in all fifty states. There will be no justification in the constitution to ban it.

Since all of these issues were addressed in the complaint, the judge has ordered an evidentiary trial, asking each side for evidence to state their claims. Our side, since it is based on claims of animus and social stigma and harm to individual gay people and the community at large, is presenting evidence of the decades of systematic discrimination and hate and bias toward gays.

The defense is in essence asked to explain why gay marriage should be banned. They are asked to provide evidence to back up their claims, and to refute ours. This is the first time in my lifetime that homophobes are the ones being asked to defend their positions. In my opinion, our side has the easier job. All we have to do is show evidence that people hate gays and that it affects us.

As I’ll show in my summary, the other side is resorting to the same arguments you can find with a quick Google search. Gays are destroying marriage, gays are pedophiles, gays like incest.

The other day a video from the Protect Marriage campaign said that gay marriage is like 9/11.

It’s really important to note that we can win this case. This isn’t an attempt by people with big egos  Our side’s strategy is to get Justice Anthony Kennedy’s vote and the other four liberals and centrists. Justice Sotomayor makes a good addition to our wing of the Court.

Allow me to quote extensively from a post I wrote over at the Great Orange Satan:

In 1996, the Supreme Court struck down an amendment to the Colorado state constitution that would have unfairly singled out gay people and prevented any attempt to view them as a protected class – meaning there would have been no way to protect gays from discrimination of any kind through legislation, the courts, or through any other method.

In Romer v. Evans, the majority opinion noted that there was no reason to amend the constitution this way, beyond animus toward the gay community. The court essentially said that the reasons given for the amendment didn’t sufficiently explain the need for the amendment. Simply, it was found that they wanted to amend the constitution out of meanness and disapproval of the gay community. The court decided that there was no legitimate state interest for this amendment.

Writing for the majority, Justice Kennedy said:

This disqualification of a class of persons from the right to obtain specific protection from the law is unprecedented and is itself a denial of equal protection in the most literal sense. Second, the sheer breadth of Amendment 2, which makes a general announcement that gays and lesbians shall not have any particular protections from the law, is so far removed from the reasons offered for it, i.e., respect for other citizens’ freedom of association, particularly landlords or employers who have personal or religious objections to homosexuality, and the State’s interest in conserving resources to fight discrimination against other groups, that the amendment cannot be explained by reference to those reasons; the Amendment raises the inevitable inference that it is born of animosity toward the class that it affects.

To the argument that the only thing the amendment would do is keep gays from obtaining special rights:

In our view that does not resolve the issue. In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2’s prohibition on specific legal protections does no more than deprive homosexuals of special rights.

Kennedy’s forceful opinion in that case argued that animus was the reason for that amendment and it was the only reason. He rejected the other arguments for the adoption of that disgusting amendment. It marked a huge victory for our side, and to quote some more from myself:

Romer v. Evans was a landmark case in gay rights, argued by lawyers with the private law firm Hogan & Hartson, including pro bono work by a young attorney named John Roberts, paving the way for the 2003 case Lawrence v. Texas, in which a law banning sodomy was struck down and a different standard of review was used limiting the state’s intrusion on privacy rights.

Yes, THAT John Roberts.

It should be noted that along with this case, Loving v. Virginia, overturning interracial marriage bans, will be used in trial as well. It found that marriage is a fundamental right.

Another important precedent is this, and I’m quoting myself again:

Later, in 2003, the Supreme Court struck down a Texas law banning sodomy. This ruling created new precedent when coupled with the Romer decision by overturning a 1986 ruling (Bowers v. Hardwick.) The court recognized that their previous ruling in Bowers was too narrow and that sexual conduct is a freedom protected by the fourteenth amendment.


In a dissent to Bowers, the 1986 case, Justice Stevens said, “[I]ndividual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.”

In the Lawrence decision, this argument was the main part of the majority opinion.

As you can see, Justice Kennedy (and possibly Stevens) has played an important role in the development of precedent in case this trial moves to the Supreme Court, which Boies and Olson have said they plan to try to do within two years.

As I wrote in that diary, Justice Scalia dissented in Lawrence v. Texas and said that he fears with that decision, there will be no further reasons to ban gay marriage. No moral or social reasons. He suggests that nobody can use procreation as an excuse since the elderly and sterile can marry. Of course, Antonin Scalia wasn’t noting this happily.

As background to the possible thinking that is going into our side of the trial, I wrote this:

Interestingly, Roberts was specifically recommended because he’s a conservative and could help sway the conservative members of the court by fashioning arguments to appeal to them.

The lead plaintiffs’ lawyer in the Romer case, Jean Dubofsky, said Thursday that she had sought out Roberts at the recommendation of Walter Dellinger, then a senior official in the Justice Department under President Bill Clinton.

Dubofsky, a former justice of the Colorado Supreme Court, said she had been specifically seeking a conservative who could help her to anticipate objections from some of the court’s more conservative members, like Justice Antonin Scalia and Chief Justice William Rehnquist.


“He told me, ‘You have to know how to count, and to get five votes, you’re going to have to pick up the middle.”‘

He then proceeded to coach her and ask her questions about the case, giving her input on explicit answers she should give to convince them. He suggested that the lawyers should say that there’s no need to overturn their previous ruling in Bowers v. Hardwick, from ten years earlier in 1986, in order to rule their way in the Romer case.

This is important because the same strategy is needed in our case. We need to create conservative arguments that gain Kennedy’s vote and we need to answer our questions in a way to appeal to conservatives. Enter Ted Olson:

Now, we have Ted Olson, a conservative lawyer who was in the Bush administration, involved in Perry v. Schwarzenegger, the Prop. 8 case. Olson has written before about why he’s involved in this case and how he will try to convince conservatives of the legality of gay marriage.

One of his main arguments for gay marriage is very socially conservative in nature. I don’t personally necessarily agree but I think that conservatives will have to admit it works for them.

Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one’s own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.

In essence, his view is that marriage means gay acceptance of and conforming to conservative ideals to an extent. This is annoying, but realistically, to conservatives who are concerned with imposing their morality on others, this argument coming from conservatives could be pretty effective.

This is the background that I’ve found helped me understand the trial as it progressed. Tomorrow I’ll get to the actual trial, since I’ve posted the boring stuff now.  


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  1. I’m sorry I didn’t get to the trial itself today but I thought this background was necessary, not in a condescending way… it helped me a lot to research all of this and read those decisions and dissents.

    If you guys like this and still want me to continue a summary tomorrow I’ll do part two.

    I’ll also post at my blog here soon.  

  2. No idea what happened and now I’m pissed because I had to rewrite that part and I liked what I wrote before.

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