LGBT Network

Perry v. Schwarzenegger is set to be a landmark case in America that could decide the future of same-sex marriage in the United States. It centres around a challenge to California’s Proposition 8 [Prop. 8] law in federal court. Proposition 8 was an amendment to the California Constitution that defined marriage as between one man and one woman. It passed with 52% of the vote in November 2008.

First of all, why is it called Perry v. Schwarzenegger?

Kristen Perry is one of the plaintiffs, one of the people challenging Proposition 8. There are 4 plaintiffs altogether, including her long term partner Sandra Stier, and a gay male couple, Paul Katami and Jeffrey Zarrillo.

The defendants are named as Arnold Schwarzenegger, Edmund G. Brown, Jnr, Mark B. Horton and a few other California officials.

And what has Arnie got to do with all this?

As he is the Governor of the State of California, he has to defend the Constitution of the State, which Proposition 8 is now a part of. Although he, nor the office of the Governor, are defending Prop. 8 in court. In fact Edmund G Brown, who is California’s Attorney-General, the chief legal officer, is supporting the other side, even though he is technically one of the defendants.

The people who are defending Prop. 8 in court are the campaign group Yes on 8, who ran the successful campaign to get this law passed.

But didn’t California decide to let the couples that got married stay married?

Yes, they did. Same-sex marriage was first legalised in the state in Summer 2008, after the California Supreme Court, in a case called In Re Marriage Cases, said that it was UNCONSTITUTIONAL to not let same-sex couples marry.

The constitution of California is the fundamental law of the state, all the legislation passed has to comply with it, and the Supreme Court of California decides if things are constitutional or not. If they are not, the Supreme Court strikes it down and it is no longer in force, which is what it did with the laws that banned same-sex marriage.

But then opponents of same-sex marriage got Prop. 8 got passed in the November 2008 election, which banned same-sex marriage again. They could do this because they were amending the state constitution, which is the only way to overturn a decision of the Supreme Court.

So the supporters of same-sex marriage went straight back to court. They said that Prop. 8 wasn’t an AMENDMENT to the constitution, but a REVISION, which is more complex and means that the California Legislature had to pass Prop. 8 too before the voters did.

On May 25^th, 2009, the California Supreme Court ruled on whether Prop 8. was acceptable, and whether or not it also applied to the couples who married before Prop 8. was passed

The case was called Strauss v. Horton, and the court decided that Prop 8. was acceptable, and same-sex marriage would stay banned. However, they also decided that the 18,000 couples who got married up until then would stay married.

This decision was criticised a lot, because the court had declared that marriage was a fundamental right for gay and lesbians, then only a year later was saying that a vote of the majority could take that right away.

So marriage law in California is pretty complicated then?

Very, there are now 4 different levels of relationship recognition in the state.

Straight couples who can get married, even if they are prisoners or child abusers.

Same-sex couples who got married in the state when it was legal.

Same-sex couples who aren’t married, but can have a DOMESTIC PARTNERSHIP that gives the same state benefits as marriage.

Same-sex couples who got married somewhere else during the time it was legal in California, they are now counted with the 18,000 couples who married in the state.

There’s something about the lawyers in this case, right?

Yes, the two main lawyers for the plaintiffs are Ted Olson and David Boies. Olson is a conservative Republican, Boies is a liberal Democrat. They once fought each other in the US Supreme Court over the famous Bush v. Gore case.

Ted Olson, who was representing George W. Bush, convinced the Supreme Court to hand the election to Bush, even though Al Gore got more votes in the Presidential election.

So Ted Olson’s good?

Very good.

How did all this start?

Back in 2004, the newly elected Mayor of San Francisco, Gavin Newsom, was in Washington DC to hear President George Bush’s State of the Union Speech. In it he called for a nationwide ban on same-sex marriage. The state of Massachusetts had just legalised same-sex marriage a few months before.

Mayor Newsom was upset to hear that the President was attacking same-sex marriages so prominently in such a major speech, so that evening he asked his city officials to start issuing marriage licenses to gay and lesbian couples.

Two days before Valentines day, the marriages began, over 4,000 couples got a license from the San Francisco city hall, before California Supreme Court said a few weeks later that he must stop, because he didn’t have the authority. However the court didn’t rule on whether it was illegal or not to ban same-sex marriage.

So supporters went to court to argue that it was unconstitutional, under the California constitution, to ban same-sex marriage. And on May 15^th, 2008, the Supreme Court of California agreed, and ordered the state to grant marriage licenses to same-sex couples.

Why does it matter that this case is in federal court? What’s the difference?

America doesn’t just have 1 legal system, but 51.

Each of the 50 states has a different constitution, different laws and courts. Then there is the 1 federal system, which sits on top of all the state systems.

The federal system deals with issues arising under the federal (the US) constitution. At the top is the US Supreme Court in Washington, D.C., then below that are Circuit Court of Appeals that cover different regions of America (the 9^th Circuit covers California), and below that are the federal district courts, where Perry case is being heard now.

So this case could get to the Supreme Court?

Yes, and that’s what all the fuss is about. Because the Supreme Court is the final word on what the constitution means, so some people are worried that it might be a bad decision and it will take a long time to get another case up the Supreme Court again.

Before it gets there though, there is the trial in the federal district court happening right now. That case can then be appealed to the 9^th Circuit Court of Appeal, which covers California, before the Supreme Court decides whether or not to take it.

What happens when the 9^th Circuit Court of Appeal rules?

A ruling by the 9th Circuit would bind courts only in the states within that circuit: Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington in addition to California.  If the 9th Circuit upholds Prop 8, the Supreme Court will probably not take the case for review, simply because the end result would be to simply continue the status quo.  If the 9th Circuit strikes it down, however, there is a much greater chance that the Supreme Court will grant certiorari [take the case].*

So what might the Supreme Court decide if it does take the case?

Its very difficult to say right now, without a ruling from the 9^th Circuit. But, some possibilities include A) a finding that there is no federal due process right to marriage, and voters have the right to ban it, B) there is no federal due process right, but a voter ban would violate the equal protection clause, so they can’t ban it, or C) there is a federal right to marriage, so all anti-gay bans are null and void.**

Wait, what is due process and equal protection?

These are parts of the 14^th Amendment of the federal constitution. The lawyers fighting this case are arguing that Prop. 8 violates both of these sections of the 14^th Amendment; part of which says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The lawyers say that denying a gay or lesbian couple a marriage license is to deprive them of a fundamental liberty, as well as that it treats gay people and straight people differently, so therefore denies them the equal protection of the laws.

However many other state supreme courts have decided that there is no right for gay people to get married under their constitutions, most of which mirror the federal constitution. Those state Supreme Courts that have legalised same-sex marriage are the ones of Iowa, Connecticut, and Massachusetts. New York has ruled that they must recognise marriages performed in other places. The legislatures of Vermont and New Hampshire have voted to legalise same-sex marriage. Maine did as well, but it’s voters rejected the law. New Jersey and New York legislatures have also come very close to passing a law to legalise same-sex marriage, but it fell just short.

Might there be some sort of compromise reached?

The primary “compromise” position that may – depending on the questions presented – be before the Court is whether Prop 8 could be unconstitutional because of the particularities of how it was enacted, but for reasons that would not extend to other state laws excluding same sex couples.* therefore keeping the decision just in California.

So how much of a gamble is this? Could the Supreme Court overturn all same-sex marriages?

It is a very big gamble,** but no – there is no question that states have the authority to enact laws that allow same-sex couples to marry. The only question is whether the exclusion of same sex couples violates the Constitution. In the U.S., the federal government issues no marriage licenses and performs no marriages – never has.  Those activities are conducted solely by the states. *

But the federal government is involved in this somehow, right?

The federal government does recognize marriages for purposes of many benefits, around 1,100 separate federal laws are affected by marital status, but the so-called Defense of Marriage Act prohibits federal recognition of same sex marriages.

However, the question of whether the federal government has to recognise same-sex marriage won’t be before the court in the Perry case.*

What about all the other states that ban same sex marriage in their own state constitutions? If the US Supreme Court doesn’t overturn them, will same-sex marriage advocates have to go to each state supreme court to ask them to overturn those amendments to their state constitutions?

They can’t do so on the basis that an amendment is unconstitutional under the (newly amended) state constitution.  A state court could find that a state constitutional provision is unconstitutional under the U.S. Constitution, however, because the U.S. Constitution trumps all other law.  That is precisely what the Colorado Supreme Court held in Romer v. Evans – that an anti-gay state constitutional amendment (not about marriage) violated the federal Constitution; the U.S. Supreme Court agreed.*

So how long before this case gets to the Supreme Court, if it does?

It is very difficult to predict, because there is no deadline for courts to issue opinions after the arguments are concluded.  A good guess, though, would be sometime during the 2011-2012 term.*

Is it going to be broadcast on Youtube? How can I follow it?

Unfortunately the US Supreme Court blocked the broadcasting of the trial, the Judge, Vaughn Walker, had initially allowed it.

The best way to follow the trial blow by blow is on twitter. The LGBT Network has compiled a list of 8 tweeters who are updating from inside the courtroom. You can follow them by going to www.twitter.com/lgbtnetwork/prop8

A huge big thank you to the contributors,

* Professor Nan Hunter of Georgetown University in Washinton DC, and blogger at
www.hunterforjustice.typepad.com/

** Dan Levine, federal court and US Justice Department reporter for The Recorder newspaper. He is tweeting live from the Perry trial www.twitter.com/FedcourtJunkie