Prop. 8 trial to include unprecedented testimony
Scholars, gay and lesbian partners and opponents of same-sex marriage are expected to testify about the nature of marriage and homosexuality during an unprecedented federal trial today to determine whether gays and lesbians may marry.
The case, Perry vs. Schwarzenegger, is expected to become a landmark that eventually will be decided by the U.S. Supreme Court. Both sides have hired leading legal advocates with lots of experience before the high court.
San Francisco’s U.S. District Court Judge Vaughn R. Walker, a Republican appointee known for independence, will decide whether Proposition 8’s ban on same-sex marriage violates U.S. constitutional rights of equal protection and due process. Walker’s pretrial rulings have tended to favor supporters of same-sex marriage.
Unlike other court cases about marriage rights, the trial before Walker will involve weeks of testimony on wide-ranging issues.
“Actually putting witnesses on the stand has never been done before in any lawsuit claiming a right to same-sex marriage,” said Proposition 8 campaign attorney Andy Pugno. “So this is a very out-of-the-ordinary approach.”
David Boies, a lawyer for the challengers of the ballot measure, said he expected the case would reach the Supreme Court in the fall of 2011.
“This is the first time that you will have this kind of record being made” on the social, religious and legal implications of same-sex marriage, said Boies, who represented former Vice President Al Gore in Bush vs. Gore, the Supreme Court case that gave George W. Bush the presidency.
Theodore B. Olson, a conservative attorney who represented Bush in that case, is working with Boies to overturn Proposition 8. They were hired by a nonprofit created by a political strategist and entertainment-industry activists to bring the lawsuit.
Challengers of the marriage ban will call to the stand the two same-sex couples who filed the suit and nearly 10 experts who will testify about the history of discrimination against homosexuals and the history of marriage. They also intend to call some of the architects of the Proposition 8 campaign.
Olson will make the opening argument and Boies will examine the first witnesses today.
The Proposition 8 campaign intends to call a handful of expert witnesses who also will testify about the history of marriage and who will contend that “traditional” marriage benefits children.
Walker decided to show the trial on a delayed basis on YouTube.com and to broadcast it live, when time zones permit, at federal courts in San Francisco, Pasadena, Seattle, Portland, Ore., and Brooklyn, N.Y.
But Proposition 8’s sponsors, contending the broadcast might intimidate witnesses and incite retaliation, appealed his decision all the wayto the U.S. Supreme Court. A decision by Justice Anthony M. Kennedy was expected today.
Witnesses for the same-sex couples who filed the lawsuit are expected to testify that sexual orientation is highly resistant to change, that same-sex marriage does not harm anyone and that children of same-sex couples are as well adjusted as those of heterosexual couples.
The challengers’ attorneys also intend to argue that the Proposition 8 campaign was motivated by prejudice against homosexuals, that gays and lesbians should receive the highest form of constitutional protection and that denying marriage rights to same-sex couples substantially harms them.
“We will show that prohibiting gays from marrying has no redeeming social benefit, that permitting gay marriage does not in any way undermine heterosexual marriage,” Boies said in an interview Friday.
Pugno said Proposition 8’s defenders would show “that traditional marriage is rationally related to the public interest in natural child rearing and that voters could reasonably decide to continue the traditional definition and that does not violate the Constitution.”
Pugno called the case “very complex,” and said the campaign’s strategy would develop in reaction to what their opponents present in court during the next several days.
“They are going to be trying to impugn the motives of the sponsors and trying to prove characteristics of sexual orientation” are similar to those of race, which receives the highest constitutional protection in the courts, Pugno said.
After the trial, Walker is expected to unveil his decision in a written ruling. That decision would then be appealed to the 9th Circuit and finally the Supreme Court.
Most gay-rights lawyers opposed the filing of the lawsuit, arguing that it was too soon to risk a loss before the Supreme Court. They fear a precedent could set back the gay-rights movement by several years.
But Boies said he expects to win before the high court.
“Judges, even of older generations, recognize where this country is going and recognize not only the undesirability but the futility of trying to preserve this area of discrimination,” he said.
Even if his side loses, “that is not the last word on a constitutional question like this,” Boies said.
The California Supreme Court ruled in May 2008 that the state’s ban on same-sex marriage violated the state Constitution. Proposition 8 amended the state Constitution six months later and reinstated the ban. The state high court later ruled 6 to 1 that the measure was a valid constitutional amendment but unanimously upheld the validity of the marriages of same-sex couples who wed before Proposition 8 passed.
Two same-sex couples, expecting the state court to uphold the measure, filed the federal suit in San Francisco a few days before the state ruling. Unlike the state challenge of Proposition 8, the federal lawsuit contends that the measure violates federal constitutional guarantees.
The Proposition 8 campaign intervened in the case after Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown declined to defend the ballot measure. One of the campaign sponsors who intervened asked Walker on Friday to drop him as a defendant. He said he feared for his and his family’s safety.
The sponsor, Bill Tam, had tried to attract votes for Proposition 8 by arguing that same-sex marriage would lead to children becoming homosexual and other states falling into “Satan’s hands.” A decision on whether Tam can withdraw from the case is pending.