For Better or for Worse

California’s gay-marriage trial is an all-star, high-stakes affair.

Ted Olson

What do you do when your cause gets hijacked? The nation’s major gay rights groups have had to ask themselves that very question about the same-sex marriage case that heads to trial in San Francisco on Monday. The groups ultimately decided to pitch in on the suit, which they themselves had carefully decided not to bring. That makes sense. The trial, which will be broadcast on YouTube, has a star witness list with the potential to ignite all kinds of important conversations about marriage and discrimination. And yet if this case ultimately comes out the wrong way, it could do serious damage to the gay rights cause. Perry v. Schwarzenegger is a thrill; it’s also terrifying.

The trial is about whether Proposition 8, California’s ban on same-sex marriage, violates the fundamental right to equal protection under the federal Constitution. That’s the whole gay-marriage megillah, legally speaking: It means asking a federal court to declare that the U.S. Constitution gives same-sex couples the right to marry, and no state can take it away from them. But it wasn’t the big gay rights groups that mounted this direct attack on Proposition 8. They made the calculation early on that they didn’t have the votes in the Supreme Court to win such a high-risk fight. That was easily the odds-on call. Nor is it clear that this is the right time to ask the lower federal courts in California to take it upon themselves to legalize same-sex marriage. Prop 8 was passed in November 2008 specifically in order to overturn a decision by the California Supreme Court legalizing gay marriage the previous June—and after thousands of gay couples ran to the altar. Asking a federal court to upend the will of the voters now is asking a lot, however strong the underlying argument.

So if it wasn’t the gay rights community pushing for this lawsuit, who was it? Enter power lawyers Ted Olson and David Boies, Olson from stage right, since he’s a top Republican litigator, and Boies from stage left. The two titans went up against each other in Bush v. Gore, in case you somehow forgot. Now they’ve come together to represent gay couples denied the right to marry by Prop 8 and a new group minted for the occasion, the American Foundation for Equal Rights. They filed Perry v. Schwarzenegger in secret, according to this meaty background piece in California Lawyer. That was a bold move by two big-timers who clearly felt entitled to brush by the lawyers who’d been in the movement much longer. It was also “risky and premature,” Jennifer Pizer, marriage project director for Lambda Legal in Los Angeles, said when Perry was filed last May.

Olson argued the suit wasn’t premature; he thought he could count five votes for gay marriage on the current Supreme Court, citing swing Justice Anthony Kennedy’s opinions in two cases that barred other forms of anti-gay discrimination. It’s hard to find anyone else, though, who thinks the Supreme Court is ready to grab the baton of gay marriage. That would require the court to strike down 40 state laws that define marriage as between a man and a woman, as Margaret Talbot reports in her piece on Perry in the New Yorker. “This is not the moment for federal judges to step in and close off discussion,” Yale law professor William Eskridge and his co-author Darren Spedale wrote in Slate when Perry was filed. “Why not continue with the state-by-state process of debate, experimentation, and slow but increasing movement toward marriage equality?”

Not surprisingly then, there is still tension between the Olson-Boies team and the gay rights groups that long preceded them. The ACLU, Lambda Legal, and the National Center for Lesbian Rights all tried to intervene as parties to the suit after it was filed; Boies and Olson opposed them (bitterly), and the judge said no. But these groups aren’t pouting publicly. “This case has been prepared by people who have worked incredibly hard, and I’m looking forward to it,” Pizer says.Her organization and others suggested names of expert witnesses and shared briefs from past cases. They don’t have control. But they count Olson’s involvement as a big plus, given his unparalleled conservative credentials. And they see the opportunity for revving up the national conversation about gay families and the problem of discrimination. Eskridge says of the suit, “It’s a terrible idea that’s gotten worse—look at the New York Senate and Maine” (and now New Jersey). “But gay marriage is coming, and this is a major public moment for it, and there’s nothing bad about that. The more this is talked about, the better it is for us.”

It’s kind of crazy when you stop and think about it: the idea of putting gay marriage on trial. It harks back to Brown v. Board of Education, which turned on showing the harms of school segregation to black kids. This time around, the Perry plaintiffs will start by trying to show that their claim deserves strict scrutiny; in other words, that denying homosexuals the right to marry is the kind of differential treatment for which the state must have much more than simply a rational basis. This part of the trial will be about the history of discrimination against gay people and the history of marriage. Historians Nancy Cott and George Chauncey will testify, and psychologist Gregory Herek will take the stand about the effects on gay people of prejudice. Testifying on this topic for the other side (not the state of California, which refused to defend Prop 8, but the supporters of the ballot measure): author David Blankenhorn and philosopher Daniel Robinson.

For their part, Prop 8’s supporters also have to show that the state has an interest (however strong, depending on Judge Vaughn Walker’s answer to the strict scrutiny question) in denying gay people the right to marry. The big issue here and before other courts is parenting: Are kids raised by gay parents at a disadvantage? The mainstream consensus is no: The American Medical Association, the American Academy of Pediatrics, and the American Psychiatric Association, along with other groups, have all concluded that good parenting has nothing to do with sexual orientation. But there are dissenters. On this one, Loren Marks, a professor of family, child, and consumer sciences in the College of Agriculture at Louisiana State University, will testify for the Prop 8 camp. The Perry plaintiffs have Cambridge psychologist Michael Lamb on their team. Gay marriage proponents are especially keen on the parenting phase of the trial: They are looking to show that gay people make just as good parents as straight people—but that if they’re not allowed to marry, that stigma hurts their kids.

Also at issue are the economic effects of denying the benefits of marriage to one group of Americans. Economist Lee Badgett will try to make this point stick for the plaintiffs; the other side has economist Douglas Allen. If Prop 8 was prompted by animus against gay people as a group (done with a “depraved heart,” in the old-fashioned phrase), then the measure is legally suspect. So lots of Prop 8 supporters are lined up to testify about the strategy and execution of California’s “Yes on 8” campaign—they will make the case that they weren’t depraved, in their hearts or otherwise. The plaintiffs who were not allowed to marry will also get their say about what that meant for them.

We’ve been here once before: In 1993 in Hawaii, the state Supreme Court ordered a hearing about gay marriage, and “it was a national teaching moment,” says Evan Wolfson, executive director of Freedom to Marry and author of Why Marriage Matters, who tried that case. Now it’s a generation later. Seven countries and five states, plus the District of Columbia, have legalized same-sex marriage. Yet the political battle feels at the moment uphill: Recently Maine, New York, and New Jersey dashed the movement’s hopes. That’s the political backdrop for this round in court. However Perry comes out in the end—and however nerve-wracking that legal process may be—it’ll make for some great YouTube.