Prop. 8 federal case opens in S.F. today

sferriss@sacbee.com
This time, it's a federal case.

A historic trial over California's Proposition 8 starts today in U.S. District Court in San Francisco, promising to feature clashing witness testimony over equal rights, the meaning of bigotry and the purpose of marriage.

The outcome could affect not only California but also the broader national question of equal rights for gays and whether their federal constitutional rights supersede a state's right to ban same-sex marriage.

Gay couples are challenging Proposition 8, which California voters approved in November 2008, saying it violates their basic individual federal rights to equal protection.

Voters, they say, can't act to deprive others of constitutional rights.

"What's at stake in this trial is whether the U.S. Constitution's promise of equal protection and ensuring rights for minorities will stand, or if voters can take rights away," said Geoff Kors,whose gay rights group Equality California backs the Proposition 8 challenge.

Opponents will defend voters' right to weigh in, and offer support for their position.

"What's at stake is the voters' right to amend their constitution," said Andrew Pugno, a Folsom attorney who will defend Proposition 8.

To "disprove that voters were not irrational" when they passed Proposition 8, Pugno said, "we're going to talk about the special need of children to be raised by their biological parents, as often as possible.

"The public has a fundamental interest," he said, "in the government steering procreation into households of a mother and father."

Federal law established by court decisions does not spell out equal rights for gays as clearly as it does for people based on race and gender.

Gay rights advocates hope this trial helps change that.

Constitutional law expert Vikram Amar, who is with the University of California, Davis, School of Law, said the trial in Chief Judge Vaughn Walker's court is unlikely to settle the matter.

A verdict could be appealed to the 9th Circuit Court of Appeals. The conflict over gay marriage also could end up in the U.S. Supreme Court.

But history will be made starting today, Amar said, with the accumulation of evidence that could serve as a foundation for a higher court's definitive decision.

Amar compared the presentation of "expert" witness research expected to occur during the trial to the U.S. Supreme Court's proceedings during the Brown v. Board of Education case.

The court's landmark 1954 decision struck down school segregation and the "separate but equal" doctrine.

"Social science studies were cited that black children suffered low self-esteem because they went to separate schools," Amar said. "Could other social scientists have argued other things? Of course."

Unlike last year's California Supreme Court hearing on Proposition 8, which featured attorneys alone arguing and answering justices' questions, this trial is expected to have witnesses testifying about research on marriage, children, discrimination and the Proposition 8 campaign strategy.

Potential witnesses include religious activists who oppose gay marriage, key organizers of the Proposition 8 campaign and Republican state Sen. Dennis Hollingsworth, a chief Proposition 8 legal supporter.

Other potential witnesses include UC Davis psychology professor Gregory Herek, who researches acts of hate and discrimination against gays and their consequences, and San Diego Mayor Jerry Sanders, a Republican former police chief who has a lesbian daughter and who supports gays' right to marry.

California voters barred gay marriage in November 2008 by changing the state constitution to declare marriage as between only a man and woman.

Five months before Proposition 8's passage, the state Supreme Court ruled that gays had a constitutional right to marry in California, and thousands of couples wed.

But the same high court later upheld voters' right to change the constitution.

Afterward, two gay couples filed a federal equal-protection challenge to Proposition 8 in U.S. District Court in Northern California.

The case is known as Perry v. Schwarzenegger. Kristin Perry is a plaintiff.

Gov. Arnold Schwarzenegger, who has deferred to courts on the matter of gay marriage, chose not to defend Proposition 8, leaving it to the measure's supporters and private attorneys. State Attorney General Jerry Brown actively opposed Proposition 8.

Adding to the drama, two former high-profile legal rivals, one a staunch Republican, have joined forces to defend gays' right to wed, based on the U.S. Constitution.

One of those attorneys is Theodore Olson, a conservative who during the 2000 presidential election stalemate represented George W. Bush before the U.S. Supreme Court and later became Bush's solicitor general. The other attorney is David Boies, a well-known trial attorney who represented Al Gore before the nation's high court.

Both lawyers have California roots.

Olson will present opening arguments today, a spokesman said, and the gay couples could testify.

In court documents, the plaintiffs' attorneys argue that gays and lesbians "have faced a long and painful history" of social and "government-sponsored discrimination" and that Proposition 8 violates their basic rights.

On the other side, noting in documents that California allows gay couples to register as domestic partners, Pugno and others say the plaintiffs fail to make their case that Proposition 8 harms them.

Pugno said his opponents may be preparing to scrutinize the religious motivations of Proposition 8 supporters who could be called to testify.

He said he'll defend people's right to vote based on their religious convictions.

Amar said the tone and publicity used during the Proposition 8 campaign could be at issue in the trial, along with concepts of traditional marriage.

Attorneys may explore whether "people who voted to ban gay marriage were motivated by mean-spiritedness," Amar said, "or by a legitimate public policy concern."

Prop. 8 trial to include unprecedented testimony
Challengers of the same-sex marriage ban plan to call to the stand homosexual couples, experts on the history of sexual discrimination and marriage, and the architects of the ballot measure.

By Maura Dolan January 11, 2010

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.

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.

Prop. 8 trial begins today
Bob Egelko, Chronicle Staff Writer Monday, January 11, 2010

The nation's first trial on same-sex couples' right to marry - and the voters' power to forbid those marriages - begins today in a San Francisco federal courtroom that will serve as a forum for two diametrically opposed worldviews.

For two couples and their allies who have filed a lawsuit seeking to overturn California's Proposition 8, the November 2008 initiative was merely the latest example of historic discrimination against gays and lesbians.

Same-sex marriage poses no threat to opposite-sex couples, children or the public welfare, they argue, and a ballot measure that revoked the marital rights of one "disfavored group of citizens" was an unconstitutional appeal to fear and prejudice.

For Prop. 8's sponsors, a religious coalition called Protect Marriage, anti-gay bias is no longer significant in California, where legislators have legalized domestic partnerships and twice voted to authorize same-sex marriage. Discrimination also had nothing to do with the ballot measure, which merely wrote the time-honored definition of marriage into the state Constitution, they argue.

Extending wedlock to gays and lesbians, they maintain, would radically redefine marriage, weaken biological parents' connection with their children, tell men that "they have no significant place in family life" and force many religious Americans to "choose between being a believer and being a good citizen." BajaGay Editorial comment cannot be contained: Bullshit!

Dueling theories

The competing legal theories that will come up in court are a bit simpler: whether Prop. 8 violates the constitutional guarantee of equal protection by discriminating on the basis of sexual orientation and gender, or whether it validly reserves marital status for those who can naturally conceive children.

The initiative overturned a May 2008 state Supreme Court ruling that allowed gays and lesbians to marry in California. The state high court upheld Prop. 8 in May 2009 in a challenge by gay rights advocates whose claims involved only state law and not the U.S. Constitution.

A few days before the state court ruling, two couples and a recently formed advocacy group, the American Foundation for Equal Rights, sued in federal court. Their lawyers are the unlikely duo of Theodore Olson and David Boies, who represented George W. Bush and Al Gore, respectively, in the Supreme Court case that decided the 2000 presidential election.

Initial unease

Established gay rights organizations had avoided federal court, fearing a possible adverse ruling by a conservative U.S. Supreme Court. But with the fate of same-sex marriage in California, and possibly elsewhere, at stake in the trial, the advocates are all on board and most have filed supportive briefs.

The city of San Francisco, a plaintiff in the state court case, has also joined the federal suit. City officials contend Prop. 8 will increase their costs of caring for couples unable to obtain insurance and will also force San Francisco to deny equal rights to its residents.

The suit was assigned by random draw to Chief U.S. District Judge Vaughn Walker, a 1989 appointee of President George H.W. Bush. Walker, who has gained a reputation as a libertarian and a maverick on the bench, has put his distinctive stamp on the case, while making it clear that he expects his ruling to be appealed.

A trial is needed, the judge said, because critical facts are in dispute - for example, the extent of discrimination against gays and lesbians, the possible effects of same-sex marriage on opposite-sex couples and the intent of Prop. 8.

The measure's intent, which its sponsors insist is legally irrelevant, could prove to be the decisive issue.

The U.S. Supreme Court, where this case may be headed, struck down state laws against same-sex sodomy in 2003. But it has given little indication it would overturn marriage restrictions that exist in most states.

On the other hand, the court declared in 1996 that laws motivated by anti-gay bias were unconstitutional - a ruling that Prop. 8's opponents want to apply to their case.

The ballot measure was "motivated by moral disapproval and irrational views" about gays and lesbians, plaintiffs' lawyers said in court papers.

No hidden agenda

Prop. 8's sponsors - vaulted into the case by state Attorney General Jerry Brown's refusal to defend the measure - say its clear-cut goal was to reinforce traditional marriage, and any inquiry into the campaign's allegedly hidden motives is both intrusive and pointless.

"The traditional definition of marriage does not reflect animus against gays and lesbians," attorney Charles Cooper said in court papers.

"It simply reflects the fact that the institution of marriage is, and has always been, uniquely concerned with promoting and regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation," Cooper wrote.

The trial will test such assertions, with competing experts arguing about the history and meaning of marriage, the adequacy of domestic partnership as a marital substitute, and the social and political status of gays and lesbians.

Walker has kept his views to himself, but his rulings so far have dismayed some of Prop. 8's supporters, who appear to be bracing their followers for a short-term defeat.

"The consistency with which the judge has sided with our opponents is anything but comforting to supporters of traditional marriage," Andrew Pugno, general counsel for Protect Marriage, said in a letter to backers of the measure last week.

Fortunately, Pugno said, the last word will come from "the nine justices on the highest court in the nation."