On the 17th floor of the Phillip Burton Federal Building in a city known for being at the edge of social change, a federal trial is under way that could lead to a landmark ruling on same-sex marriage in America.
Perry v. Schwarzenegger, which began Jan. 11 in the US District Court for Northern California, challenges the constitutionality of California's voter-approved ban on gay marriage. Over the past 10 days, lawyers have made a broad-based case against Proposition 8, ranging from arguments that it reflects prejudice against gays and lesbians to discussions about the nature of modern marriage, and the notion that homosexuality requires special protections like gender and race.
Many gay-marriage advocates say the case is ultimately destined for the US Supreme Court and represents the best path to legalizing same-sex marriage. They hope this lawsuit will be their Loving v. Virginia – the 1967 case that ended race-based restrictions on marriage.
But not all activists are on board. Some worry the stakes are too high: a federal challenge at a time when most states and voters reject gay marriage could be premature. Even if the Supreme Court eventually takes the case – bound to be appealed by the losing side in San Francisco in the Ninth Circuit Court of Appeals and then to the Supreme Court– the court has historically been reluctant to move too far ahead of the people. A defeat in the Supreme Court would deal a huge setback to a movement that has seen significant gains over the past decade.
"The national marriage project was assiduously avoiding a federal court challenge. They were working slowly toward [it]," says Marc Spindelman, a law professor at Ohio State University and an expert on gay and lesbian rights. But, he adds, "if there's a circuit court that's likely to recognize same-sex marriage" it's the Ninth Circuit, under which the district court falls and which is often branded the most liberal.
Until now, gay-marriage advocates had been largely lock step in pursuing a state-by-state strategy. And it appeared to be working. Courts in Massachusetts, Connecticut, and Iowa have legalized same-sex marriage while legislatures in Vermont and New Hampshire have extended marriage to gay couples. In December, the city council in the District of Columbia voted to give marriage licenses to same-sex couples.
But voters in 31 other states have passed laws limiting marriage to heterosexual couples, sending a message that despite growing acceptance of same-sex civil unions, most Americans oppose expanding the institution of marriage to same-sex couples. Last November, Maine voters overturned a state law legalizing gay marriage. Soon after, New York lawmakers defeated a gay-marriage bill, and earlier this month the New Jersey Senate rejected a bill to legalize gay marriage.
A battle focused on the ballot box and state legislatures is now shifting to the courts. After gay-marriage advocates were dealt a setback by the New Jersey Senate, they pledged to go to the state Supreme Court. In Boston, a gay-rights group has filed a suit challenging the federal Defense of Marriage Act, which defines marriage as a legal union between a man and a woman.
Initially, a divide over Prop. 8 challenge
That shift may explain the softening of the initial opposition in the gay-rights movement to the San Francisco challenge. Last May, the American Civil Liberties Union, the National Center for Lesbian Rights, and Lambda Legal denounced the lawsuit as the wrong strategy for California's gay community. Since then, all three have filed briefs supporting it.
Plaintiffs in the case against Proposition 8 are two same-sex couples, Kristin Perry and her longtime partner, Sandra Stier, along with Paul Katami and Jeffrey Zarrillo. But the driving force behind the lawsuit is the American Foundation for Equal Rights, a well-funded gay-rights group. It hired an unlikely but prominent pair of litigators. Democratic attorney David Boies and conservative Theodore Olson were on opposing sides in the Gore v. Bush case that decided the 2000 presidential election, but they have found common ground in their support for gay marriage.
"Proposition 8 ended the dream of marriage for the plaintiffs and hundreds of thousands of Californians," Mr. Olson told the court Jan. 11. He said the ballot measure created separate categories of people – making gay couples inferior to heterosexual ones – and by doing so, violated the constitutional guarantee to equal protection under the law.
The defense in the case called their first witnesses Monday. The main defendants, ProtectMarriage.com, the coalition that put Proposition 8 on the ballot, and the Alliance Defense Fund, a conservative group, have their own heavyweight. Their lead counsel is Charles Cooper, the assistant US attorney general in the Reagan administration, who argued against gay marriage in Hawaii in the 1990s.
The civil rights analogy
Arguments on both sides center on a key question: Does denying marriage to same-sex couples amount to unconstitutional discrimination? And is the battle for gay marriage equivalent to the civil rights fight to lift restrictions on interracial marriages?
Those opposed to gay marriage say no. Californians have the right to alter their constitution to "restore" marriage as a union between heterosexual couples, Mr. Cooper said in court. It doesn't amount to a constitutional violation the way bans on interracial marriage do, he argued, because racial restrictions "had nothing to do with the definitional feature of marriage."
But same-sex marriage would change the definition of marriage as we know it, he said. "The limitation of marriage to a man and woman has been something that has been universal."
Marriage should evolve with society, Olson countered, "to shed irrational, unwarranted, and discriminatory restrictions and limitations that reflected the biases, prejudices or stereotypes of the past."
The lawsuit unfolding in California could take years to make it to the Supreme Court. The court may not even accept the case. Before Loving v. Virginia, a majority of states had already invalidated laws against interracial marriage. Today, all but five states limit marriage to a man and woman. The issue of gay marriage, said New Jersey state Sen. John Girgenti (D), who supports civil unions but voted against the same-sex marriage bill, goes to "the heart of our society and how we define who we are."
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