Perry v. Schwarzenegger

The Perry v. Schwarzenegger trial to determine the unconstitutionality of Proposition 8 is reaching its conclusion. Next Wednesday, June 16, our attorneys will deliver closing arguments in the case, the last step before the court issues its decision.

The New York Times reached its decision tonight. In a hard-hitting editorial that will appear in tomorrow’s paper, the Times states that there is an “overarching denial of equal protection and due process created by prohibiting one segment of society from entering into marriage."

The trial “made abundantly clear that excluding same-sex couples from marriage exacts a grievous toll on gay people and their families. Domestic partnerships are a woefully inadequate substitute.” The editorial continues, “Defenders of Proposition 8 produced no evidence to back up their claim that marriage between same-sex couples would hurt heterosexual marriage.” When asked for an explanation by the judge at a pretrial hearing, defense attorney Charles Cooper said, “I don’t know. I don’t know.”


NY Times Editorial: Marriage, A Basic Civil Right

After a nearly three-week trial in January, and a lengthy hiatus while lawyers fought over documents, closing arguments are scheduled for Wednesday in a lawsuit challenging the constitutionality of Proposition 8, California’s ban on same-sex marriage.

No one expects the ruling from Judge Vaughn Walker in Federal District Court to be the last word. The United States Court of Appeals for the Ninth Circuit, in San Francisco, will have its say, and so, eventually, may the Supreme Court.

The testimony made abundantly clear that excluding same-sex couples from marriage exacts a grievous toll on gay people and their families. Domestic partnerships are a woefully inadequate substitute.

On the witness stand, the plaintiffs described the pain and stigma of having their relationships relegated by the state to a lesser category that fails to convey the love and commitment inherent in marriage. “My state is supposed to protect me. It’s not supposed to discriminate against me,” said one of the plaintiffs, Paul Katami.

Defenders of Proposition 8 produced no evidence to back up their claim that marriage between same-sex couples would hurt heterosexual marriage. “I don’t know. I don’t know,” the defense attorney, Charles Cooper, said when asked for an explanation by the judge at a pretrial hearing.

The defense called only two witnesses. The first, Kenneth Miller, a professor at Claremont McKenna College, argued that gay people are a powerful political force, which was meant to support that there is no need for enhanced judicial protection. He ended up admitting that gay men and lesbians suffer discrimination.

The other witness, David Blankenhorn, the president of the Institute for American Values, argued that marriage is being weakened by rising divorce rates and more unmarried people having children, but he could not convincingly explain what the genders of married couples had to do with that.

Upon questioning, he acknowledged that marriage is a “public good” that would benefit same-sex couples and their children, and that to allow same-sex marriage “would be a victory for the worthy ideas of tolerance and inclusion.” The net result was to reinforce the sense that Proposition 8 was driven by animus rather than any evidence of concrete harm to heterosexual marriages or society at large.

It’s not possible to know whether the final ruling in this case will broadly confront the overarching denial of equal protection and due process created by prohibiting one segment of society from entering into marriage. The Supreme Court has, in different cases, called marriage “essential to the orderly pursuit of happiness by free men” and a “basic civil right.”

The result, even if a win for gay couples, could be a limited ruling confined to the situation in California, where the state’s highest court granted the freedom to marry and voters later repealed it following an ugly campaign spearheaded by antigay religious interests.

But there are actions that can be taken now. States like New York should not put off acting on legislation to legalize same-sex marriage. Last week, President Obama extended a modest package of benefits — including day care and relocation allowances — to all partners of federal employees. Congress has a duty to extend to same-sex partners the rest of the benefits that are enjoyed by federal workers whose spouses are of a different sex . It also needs to repeal the 1996 law that defines marriage as a union between a man and a woman.