Arguments for and against marriage equality fell along familiar lines in the first day of the federal Proposition 8 trial in San Francisco, with equality proponents saying marriage is a constitutional right that should be extended to a minority subjected to longstanding discrimination, and opponents arguing that marriage has been immutable throughout history and is a primary vehicle for “responsible procreation” between heterosexuals.
Trial proceedings in the Perry v. Schwarzenegger began shortly after 9 a.m. in the small, wood-paneled courtroom of U.S. district judge Vaughn Walker. Though opening statements and testimony were videotaped, the U.S. Supreme Court has yet to rule whether the trial can be ultimately broadcast. Walker announced at the outset that more than 138,000 people had submitted public comments regarding broadcast of the proceedings and that only 32 of those were opposed to the broadcast.
Opening statements were followed by personal and often emotional testimony from the two gay couples who were denied marriage licenses by the state after the California Supreme Court upheld Prop. 8 last year. A Harvard University professor and expert on the evolution of marriage in the United States also testified later in the afternoon.
Ted Olson, a conservative attorney and former solicitor general under President George W. Bush representing the four plaintiffs, immediately summarized the suit in stark terms. “This case is about marriage and equality,” he said. “Plaintiffs are being denied both the right to marry, and the right to equality under the law. The Supreme Court of the United States has repeatedly described the right to marriage as "one of the vital personal rights essential to the orderly pursuit of the happiness of free men.’”
Olson further argued that Prop. 8 added “yet another chapter to the long history of discrimination” against gays and lesbians” that “perpetrates irreparable, immeasurable, discriminatory harm—for no good reason.
“Proponents of Proposition 8 have insisted that the persons they would foreclose from the institution of marriage have suffered no harm because they have been given the opportunity to form something called a "domestic partnership,'" Olson said. "This is a cruel fiction."
Olson and his team made many references to historical oppression against African-Americans in regards to marriage, including the 1967 Supreme Court case Loving v. Virginia, which struck down laws barring interracial marriage. In a Martin Luther King Jr.-tinged sentiment regarding gay couples ability to be parents, Olson said that, “The quality of a parent is not measured by gender but [by] the content of the heart.”
Olson was aided in opening statements by Therese Walker, a chief deputy city attorney for the city and county of San Francisco, who gave brief statements on the increased incidences of hate crimes and economic consequences to California municipalities as the result of Prop 8.
Following plaintiffs’ opening statements, Judge Walker asked attorneys representing Gov. Arnold Schwarzenegger and attorney general Jerry Brown whether they intended to make opening statements. Both attorneys declined to defend Prop. 8.
Charles Cooper, the lead attorney defending the ballot measure for intervenors that include Protect Marriage and the Alliance Defense Fund, argued repeatedly that marriage is a fundamental institution for natural procreation - even if not all marriages lead to the raising of children. He also asserted that countries and states that have permitted marriage for same-sex couples have led to “real societal harm,” including lower marriage rates, higher rates of divorce, and more children raised outside of wedlock.
Cooper further argued that the California LGBT lobby wields significant power and is not the embattled minority characterized by the plaintiffs. “This is not ill will nor animosity for gays and lesbians, but special regard for this venerable institution,” Cooper said of marriage.
Attorneys delivered their statements without oratorical theatrics, and all were interrupted frequently by Judge Walker. During his statements, Walker asked Olson why the courts shouldn’t abstain from the issue and allow marriage equality battles to be played out on in the political process, as has happened in California, and, more recently, in Maine, which also voted to strip same-sex couples of marriage rights. “Because that is why we have courts,” Olson replied. “And that is why we have a constitution. And that is why we are here today.”
Testimony from the four plaintiffs - Kristin Perry and Sandra Stier of Berkeley, Calif., and Paul Katami and Jeffrey Zarrillo of Burbank, Calif.- focused squarely on the couples’ experiences as gays and lesbians; the discrimination they’ve faced; and their ability to be parents without the rights to marriage (Perry and Stier have four boys, two who are high school age and two who are young adults). Both Olson and fellow lead attorney David Boies questioned the witnesses.
Zarrillo, the first plaintiff to testify, spoke emotionally of his desire to marry his partner. The couple decided that they would not start a family until they were allowed to do so legally. “I love him probably more than I love myself,” Zarrillo said of Katami. “I want nothing more than to marry him.
Plaintiff Kristin Perry spoke of her struggle with acknowledging her own personal right to marry the partner of her choice. Perry and Stieroriginally married in 2004 when San Francisco mayor Gavin Newsom ordered the city to grant marriage licenses to same-sex couples, a decision later nullified by the California Supreme Court. As a lesbian in Bakersfield, Calif., Perry testified about marriage that she “never let herself want it. Growing up as a lesbian you never let yourself want it, because you’re told you can’t have it.”After their marriage was invalidated by the California Supreme Court, Perry testified that she and Stier did not seek to be married after a subsequent state high court decision in 2008 granting marriage rights to same-sex couples because she “didn’t feel like it was a permanent solution. And we had already experienced an impermanent solution.”
Regarding the domestic partnership laws, all plaintiffs testified that the state did not go far enough in bestowing equal rights for same-sex couples. “A husband is something definitive,” plaintiff Paul Katami said. “It’s something everyone understands. And it comes with a modicum of respect.”
Katami was the sole plaintiff to be cross-examined by the defense, which asked him repeatedly whether parents have the right to shield their children from learning about same-sex relationships - a battle cry for Proposition 8 proponents that arguably helped pass the ballot measure by a slim margin. “The minute you turn your belief into an action that diminishes my rights, there’s an issue,” Katami said.
Following plaintiffs’ testimony, marriage historian Harvard University professor Nancy F. Cott took the stand, speaking about the fluidity of the definition of marriage and the discrimination that minorities have historically faced in attaining such rights. “Only those who cannot marry their partner of choice - or marry at all - are aware that the ability to marry is an expression of one’s freedom,” she said.
Monday’s proceedings were not without gaffes, technical and otherwise. Defendants’ attorneys contended that one of the exhibits presented by the Olson and Boies team - a Prop. 8 campaign ad targeted at voters with religious convictions against gay marriage - was not properly filed in the exhibit list. Walker allowed the ad to be played, but disallowed a separate ad, the oft-parodied “Gathering Storm” spot, in part because the ad was broadcast after Prop. 8 was passed. Technical difficulties in playing the ads to both witnesses and the gallery were one of the day’s motifs.
Olson also could not answer decisively when Walker asked him whether California’s domestic partnership law covered opposite-sex couples. Later Olson explained that state law allowed for heterosexual couples in which a partner is age 62 or older to enter into such unions.
The courtroom gallery was occupied almost exclusively by attorneys, plaintiffs’ friends and family, and reporters from national and local media. Gay media in attendance included The Advocate, Keen News Service, and Frontiers In-LA. National media included The New York Times, The Daily Beast, and Newsweek.
The four plaintiffs were seated in the gallery next to Chad Griffin, the political strategist and co-founder of the American Foundation for Equal Rights, which organized and helped to fund the suit. Behind them were Dustin Lance Black, the academy-award winning screenwriter for Milk, and director Rob Reiner. Both are AFER board members.
Attorneys from gay legal organizations who have been instrumental in previous victories on state marriage laws were also in attendance, including Jennifer Pizer of Lambda Legal and Shannon Minter of the National Center for Lesbian Rights.
