Putting Prop 8 on trial

While ostensibly about the marriage rights of lesbians and gays in California, the Perry v. Schwarzenegger court case that begins January 11, 2010, will likely debate the constitutionality of discrimination against LGBT people nationwide. The trial is in a federal district court in California, but the smart money has the case winding up before the Supreme Court. The two high-power, straight male attorneys challenging California's 2008 Prop 8 referendum that overturned marriage equality are famous as former adversaries in the Bush v. Gore 2000 presidential race decided by the Supreme Court. Theodore Olson, a prominent conservative who served as George W. Bush's solicitor general, and David Boies, who was Al Gore's lawyer, have teamed up to battle the anti-gay marriage forces and aim to litigate a Supreme Court case they hope will challenge the notion that the American state has a vested interest in perpetuating second-class citizenship for LGBT people. Their sights are set on creating a cultural and legal landmark on the order of the 1954 Brown v. the Board of Education case that struck down school segregation or the 1967 Loving v. Virginia case that ended anti-miscegenation laws, thus legalizing marriages between Blacks and whites.

Whether the case will amount to anything approaching those cultural and legal turning points is impossible to predict. However, there's no shortage of controversy and intrigue surrounding this high-profile case. Organizations such as the ACLU, Human Rights Campaign (HRC) and Lambda Legal initially opposed--and now grudgingly accept--the logic of taking Prop 8 to court. They fear that an expected victory in the California court will be appealed to the 9th U.S. Circuit Court of Appeals, and then on to the Supreme Court, which "will say that discrimination against LGBT people is fairly easy to justify," a number of organizations argued in a joint memo. Attorneys at the ACLU, HRC and Lambda are haunted by the Court's devastating 1986 Bowers v. Hardwick case that upheld sodomy laws until 2003. Yet it was under Bush and with the starkly conservative current crop of Supreme Court justices that sodomy laws were struck down. By contrast, these mainstream groups argue for continuing a gradualist, state-by-state strategy that could take as long as 20 years to gain equal rights.

No doubt, Justice Antonin Scalia's written dissent to the 2003 Lawrence v. Texas case overturning sodomy laws is certainly cause for concern. "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive." The fact that such a cultural fossil sits on the nation's highest court at all calls the institution itself--and the 98 Senators who heartily voted to confirm him--into question. One rather controversy of Perry is that Olson and Boies plan to argue their case partially on the dubious claim that sexual orientation is immutable, and therefore gays and lesbians should be treated as a "suspect class"--that is, in the same manner as racial minorities and religious groups. Their right-wing opponents have curiously taken up the traditional position of Marxists and queer theorists who insist that sexuality is fluid and exists along a continuum--in order to advance the reactionary notion that gays and lesbians don't deserve protection from the courts.

It's a problem that Olson and Boies would choose to promote an unproven biological determinist argument to gain civil rights for LGBT people. Religion is indisputably mutable, and yet nobody challenges legal protections for religious minorities. Millions have experienced shifts in their own sexual orientation or preference--and many have not. Yet civil rights should simply be a question of equal treatment under the law, regardless of the debate over the nature of sexuality. A brouhaha has ensued over whether or not the bench trial in California--a judge will decide the case, not a jury--should be televised. Judge Vaugn Walker, who is hearing the case, has ruled that the proceedings should be taped for YouTube and made widely accessible. This is a victory against the conservatives who wanted to keep the trial closeted. "Those who want to ban gay marriage spent millions of dollars to reach the public with misleading ads, rallies and news conferences during the campaign to pass Prop. 8," said Chad Griffin, board president of the American Foundation for Equal Rights, which has amassed a multimillion-dollar war chest to fund Olson and Boies. "We are curious why they now fear the publicity they once craved."

There is reason to be optimistic. Opinion has shifted positively over the past years, not least due to the outpouring of dissent since Prop 8's passage. According to a Pew poll, 57 percent of Americans overall approve of at least civil unions, if not marriage, for gays and lesbians. The very fact that two prominent, white-shoe lawyers perceive this case to be winnable is notable. Even the conservative Cato Institute wrote a moral and legal defense of equal marriage in the pages of the New York Daily News. Judge Walker pursued an encouraging line of questioning in the pretrial hearings when he probed the ridiculous contention by anti-LGBT lawyers that marriage is centrally about procreation. He asked, "The last marriage I performed...involved a groom who was 95, and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now was I missing something?"

Activists who have mobilized in massive numbers since the passage of Prop 8 should not wait passively as the case winds its way through the courts. As much as the judicial system attempts to appear above the political fray, it is clear that demands for equality expressed through protest and other organizing efforts have forced a fundamental shift in public--and as the Lawrence decision overturning sodomy laws shows, judicial--opinion.