Prop 8 Trial Likely to Conclude in March
By Alexandra Kostoulas
From the first moments after Prop 8’s passage on election night 2008, when LGBT activists poured out of the Westin St. Francis feeling simultaneously elated at the presidential victory yet betrayed by their fellow Californians, LGBT legal strategists have been hard at work charting a course that could soon end up in the Supreme Court.
The case looks to conclude in early March as U.S. District Court Judge Vaughn Walker of the 9th Circuit Court has delayed scheduling closing arguments until the end of February so that he can review and consider the evidence presented.
There are four plaintiffs in the case, two of whom, Kristin Perry, 45, her partner Sandy Stier, 47, reside in Berkeley with their four children and have been in a relationship for ten years. They are being represented by an all-star legal team led by David Boies and Theodore Olson, two of the most famous lawyers in the country, who have joined forces after their opposing roles in the infamous Gore v. Bush case in 2000.
After 14 days of testimony spanning nearly three weeks, the plaintiffs’ attorneys presented a litany of examples of discrimination and mistreatment against LGBT people in what legal analyst Professor David Levine of UC Hastings believes is part of a three-pronged approach to argue that banning gay marriage is unconstitutional.
The first part of the strategy is to tie the denial of same-sex marriage to the 14th Amendment. “If the plaintiffs in this case could get Judge Walker to hold that sexual orientation is entitled to the same legal protection under the 14th Amendment as we’ve already given to race, as we’ve already given to gender, and as the California Supreme Court has given to same-sex orientation, the plaintiffs’ case is a lot easier to make.”
A second approach that the plaintiffs are taking, according to Professor Levine, “is to show that the proposition was motivated by animus, or hatred because there is a supreme court law that suggests that if legislation or even propositions are motivated by animus then they can be declared to be invalid on that basis.” The plaintiffs showed numerous Prop 8 ad campaigns and rally videos that slandered gays and lesbians and perpetuated stereotypes, which they argue spawned hatred.
The third legal approach the plaintiffs are taking is to show that there is no rational reason to have a national legal distinction between marriage and domestic partnership. “The other two arguments I think are respectably a little harder to win. I think animus is the next easiest to win on appeal,” Levine said.
The National Center for Lesbian Rights (NCLR), which had a presence in the courtroom tracking the trial and giving updates, deemed the litigation of the case by Olsen and Boise to be brilliant. “The testimony about sexual orientation, about our lack of political power in terms of reliable allies and about the history of truly savage treatment of LGBT people throughout history was truly compelling. On their side, all hat, no cattle…” said NCLR director Kate Kendell in her video blog on the last day of the trial. NCLR and other groups were instrumental in bringing the minute-by-minute updates from the courthouse after the U.S. Supreme Court ultimately ruled that cameras could not be allowed in the courtroom.
However, proponents of gay marriage have a steep climb ahead of them if the case goes to the Supreme Court, Levine said, since it has already showed an unfavorable approach by passing a decision to bar broadcast of the case. “The fact that five of [the Supreme Court Justices] intervened to stop the videotaping that was going on YouTube suggests that they have an acute interest in the case and that they are a little concerned about what Judge Walker is allowing. … I wouldn’t read that decision as something positive for the plaintiffs. As for the decision to stop broadcasting, I saw that as a real shot across the bowel for judge Walker that said, 'Hey, you know, be real careful with what you’re doing down there.'”
How Judge Walker writes his ruling after hearing closing arguments will determine the course of action that the plaintiffs take. If they start losing, then some may favor backing out of the appeal process. But, if they win, depending on how narrowly Judge Walker writes his ruling, and which legal arguments he ties his decision to, the case is predicted to be appealed and move to the Supreme Court where five votes are needed for Prop 8 to be overturned.
If the plaintiffs lose at this point, the long-term national strategy behind the fight for marriage equality might be to stop fighting in court and go back to the ballot says Levine “because it’s a whole lot better to take their loss vis-à-vis Prop 8 and fight again another day then to get a really sweeping negative decision from the U.S. Supreme Court at this point. Something like that would stop the same-sex movement in its tracks.”
Despite the all-star legal team representing the plaintiff’s, the arguments set up a few unprecedented moves for the federal court. Equal protection based on same-sex orientation under the 14th Amendment has never been upheld at the federal level.