Couples tell of toll from state gay marriage ban as Prop. 8 trial begins
By Susan Ferriss sferriss@sacbee.com Jan. 12, 2010

SAN FRANCISCO – Kristin Perry testified that she feels discrimination "every day."

Sandra Stier, her partner, said she was "sickened" by television ads she felt suggested she posed a threat to children because she is lesbian.

All four gay plaintiffs took the stand Monday on the opening day of a historic federal trial over gay marriage, describing in personal terms the emotions they experienced as they came out, formed relationships and were barred from obtaining marriage licenses in California.

The trial over Proposition 8, the November 2008 initiative that banned gay marriage in California, could last two weeks in U.S. District Court in San Francisco before presiding Chief Judge Vaughn Walker. The verdict could be appealed to a higher court, but evidence established could serve as a foundation for decisions determining the future of gay marriage rights in America.

Walker began by peppering lawyers from both sides with questions.

He asked lawyers challenging the initiative whether taking the government out of issuing marriage licenses altogether wouldn't dissolve the conflict. He questioned what "disabilities" gays suffer from not being allowed to marry, and why registering as domestic partners is not an acceptable alternative.

He said gay people hadn't had the right to marry "very long," and asked whether that "doesn't make a difference."

The judge interrupted Charles Cooper, an attorney defending Proposition 8, pointing out that interracial marriage was once prohibited, and that President Barack Obama's parents couldn't have married in some states.

He questioned Cooper's argument that procreation and rearing children are the primary purposes of marriage, asking if companionship is not another reason to wed.

Cooper argued that voters in California cast their ballots on an issue of "overriding cultural and social significance," and favored a definition of marriage that has prevailed through history.

He said the people of California have "been generous" on extending rights to gays, and that the gay movement – with the exception of marriage – has been very successful at enacting rights and laws against discrimination.

He said the gay organization Equality California hailed civil unions, when they were permitted by law, as a victory for civil rights.

"The evidence will show that gays and lesbians in California have substantial political power," Cooper said.

He said Proposition 8 speaks not out of ill will toward gays but rather a special regard for a "venerable institution."

Ted Olson, a pro-gay marriage Republican who represented George W. Bush before the U.S. Supreme Court during the 2000 presidential election stalemate, opened for the plaintiffs.

He quoted from U.S. Supreme Court decisions referring to marriage as "one of the most vital personal rights" in the pursuit of happiness and "a basic right."

"This case is about marriage and equality," he said.

Plaintiffs' lawyers, who called the first witnesses, were granted permission to display television and other ads and videos from the 2008 campaign in the courtroom.

They noted that the ads urged voters to "protect children" by voting for the amendment.

Ads warning of gay marriage and showing trains charging at viewers and parents holding children's hands implied "that evil must be stopped," and sickened her, Stier said.

"As a mom of four kids … I don't know if there is any stronger thing in parenting than the desire to protect children," said Stier, who has two grown biological sons.

Paul Katami, who testified along with his partner, faced cross-examination from defenders of the measure, who wondered why parents shouldn't have the right to weigh in on the content of sex education for their children.

"You believe parents can disagree about same-sex marriage," but that "they can't do anything about it?" asked Proposition 8 attorney Brian Raum of the Phoenix-based Alliance Defense Fund.

"That's not what I said," Katami replied. He said parents "absolutely" have rights to impart their beliefs, but that they didn't have a right to infringe on the constitutional rights of others.

Katami said he tried, as a youth, to act heterosexual and struggled with being gay until he came to terms with it. "I'm a natural-born gay," he said.

He recalled speaking to a woman with a Proposition 8 bumper sticker with the figures of children on it who told him, "Marriage is not for you people, anyway."

"It reminded me of the use of children in the campaign," he said. "It is so damaging and so angering… It goes to, 'What are you protecting children from?'

"At that moment," he said, "being gay means I'm unequal … I'm relegated to a corner."

Perry said she has to weigh how to describe her relationship with Stier in conversations with others.

"I was well aware of the comments and jokes that were circulating through my school all the time, and some of them were about me," she said, describing her youth in Bakersfield.

Now, she said, "I'd like to marry the person I choose."

She said civil union status is simply a document, a legal step lawyers advise to protect limited rights to property and access to each other's health insurance benefits.

The trial began with Walker announcing that the U.S. Supreme Court would announce Wednesday whether to allow video of the proceedings to be uploaded on a delayed basis on YouTube.

The Proposition 8 defense opposes the postings, arguing that witnesses might suffer reprisals. The postings, which Walker supports, would be an experiment that the 9th U.S. Circuit Court of Appeals has suggested allowing for some federal trials.

But Perry Case Does Not Address DOMA
By Paul Hogarth

With the New Jersey State Senate rejecting gay marriage last week, the path to equality is now back in the courts. Lambda Legal has filed suit in the New Jersey Supreme Court, and the odds of success – based upon that state Court’s ruling in 2006 – appear favorable. But all eyes are on San Francisco – as District Court Judge Vaughn Walker hears Perry vs. Schwarzenegger, the controversial case to overturn Proposition 8 on federal grounds.

For years, civil rights groups had carefully kept the federal courts out of gay marriage fights – and the prominent lawyers in Perry filed the suit without consulting them. But with most of marriage’s legal benefits coming under federal law, it was only a matter of time before the federal courts weighed in on this issue. The trouble is that a wiser battle to start with would challenge the Defense of Marriage Act (DOMA) – and in fact, there are such efforts in place. If the federal courts uphold Prop 8, it’s not likely to affect New Jersey – but it could hurt efforts to repeal DOMA.

New Jersey Court Offers Hope for Marriage Equality

It was heartbreaking to see the New Jersey State Senate vote 20-14 on January 7th against legalizing same-sex marriage (with nine Democrats voting “no” or “abstain”), but it was smart to call for a vote anyway. As any lawyer would advise, plaintiffs should prove they have “exhausted all remedies” before filing a suit – and this defeat now allows the LGBT community to take their case back to the state Supreme Court, where the odds look good.

In October 2006, the New Jersey Supreme Court voted 4-3 that gay marriage was not a “fundamental right” – but the law must treat same-sex couples equally. The Court said the state legislature could either pass marriage equality, or a “parallel structure” of civil unions that give gay couples all the same rights. At the time, I explained how the ruling could inevitably lead to gay marriage – because it’s impossible to have civil unions that are “equal.”

Three years later, there is ample evidence that New Jersey’s civil unions law is inadequate. A state commission studied the issue thoroughly, and legislators on both sides of the marriage debate have admitted on record that it’s not working. The Court in 2006 was reluctant to call for gay marriage – and instead said the legislature “should be given a chance to address the issue.” Now, it’s clear the legislature had their chance – and failed.

The make-up of the New Jersey Court hasn’t changed much, and the four judges who signed the majority opinion in 2006 are all still there. But during this time three other state Supreme Courts – California, Iowa and Connecticut – not only ruled for marriage equality, but also recognized sexual orientation to be a “suspect class.” That means any law that discriminates against gays and lesbians is presumed unconstitutional, unless the state can prove a compelling interest. Other state rulings are not binding precedent on the New Jersey Supreme Court, but they are viewed as “persuasive” – and likely influential.

State-By-State Solution Can Still Yield Progress

New Jersey proves that a state-by-state solution can yield progress – as infuriating as the number of setbacks on the way can be. But the recent defeat in Maine also showed how risky it is to go to the ballot. The Right loves to take this issue to the voters, because they can use lies and fear to manipulate a slim majority of the electorate. New York and New Jersey proved that state legislatures are not immune to this either, but it’s preferable than putting the rights of a minority on the ballot. The courts, of course, are always an option.

Advocates should be unapologetic about focusing on states that lack an initiative process, expanding marriage rights in places where it cannot be taken away. More states with gay marriage will also help federal courts conclude that marriage equality is a constitutional right. When reviewing the bans on interracial marriages (1967) and sodomy (2003), the U.S. Supreme Court in both instances noted how many states had already repealed them.

Currently, there are eight states that (a) don’t have marriage equality, (b) did not amend their constitution to ban gay marriage and (c) don’t allow for an initiative process that could repeal efforts to pass it. The states are Minnesota, Indiana, North Carolina, West Virginia, Pennsylvania, New York, New Jersey and Rhode Island. Some – like Rhode Island – are liberal enough to pass it at the legislature. Others will require court action.

But Going to Federal Court is Inevitable …

Every major lawsuit to achieve marriage equality has consciously avoided claims under the federal U.S. Constitution for a reason. As long as the claims are kept in the confines of a state constitution, that state’s Supreme Court has final say – and the case cannot be removed or appealed to federal court. The concern is that, while there are legitimate and arguable federal claims, any federal case can be appealed to the U.S. Supreme Court – in front of Justices Clarence Thomas, Antonin Scalia, John Roberts and Samuel Alito.

Which is why the Perry case is so controversial. A strong legal case can be made that Prop 8 violates the U.S. Constitution, but it’s a myth to think judges won’t take the politics into account. “It's very sweet to think that we're going to win on moral grounds, but it's naïve,” E.J. Graff of the Brandeis Women's Studies Research Center told the American Prospect. “[The lawyers] have no real grasp of the bias facing lesbians and gay men, or of how to make lasting social change.”

In fact, the two attorneys – Ted Olson and David Boies – are not part of the civil rights legal community, and filed the suit without consulting those who have litigated marriage equality cases for years. “There is also the sense,” wrote the American Prospect, “that Boies and Olson stand to lose nothing. The possible reward, on the other hand, is clear: For two attorneys who have pursued high-profile cases throughout their careers, this could be the defining win that puts them in history books.”

But it was inevitable that federal courts would eventually take up this issue. First, over 30 states (including California) have changed their constitutions to prohibit gay marriage – which blocks the ability to pursue state court challenges. After the state Supreme Court upheld Prop 8 last year, it was clear the only available options are: (a) the ballot box, or (b) federal courts.

Second, and more importantly, you can’t have marriage equality without challenging federal law. Even before California voters passed Prop 8, same-sex couples never had full marriage rights. The Defense of Marriage Act (DOMA) prohibits gay couples from any federal benefits – such as the right to sponsor an immigrant spouse, Social Security or joint federal tax returns – and allows states to not recognize out-of-state gay marriages.

In fact, California’s civil unions law gives all the same (tangible) benefits that state law grants married couples. While the term “marriage” carries all sorts of intangible legal implications that a civil unions law cannot contemplate, Prop 8 had less of a practical effect than DOMA. To the extent that going to federal court carries legal and political risks, it makes more sense to challenge the constitutionality of DOMA than Prop 8.