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Historic Victory in Gay-Marriage Case

By Katrina Dewey

Equality took a giant step forward yesterday, with U.S. District Judge Vaughn Walker’s decision that marriage is a fundamental right wrongly taken from gays and lesbians by California’s Proposition 8.

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” Walker, the chief judge of U.S. District Court for the Northern District of California, concluded in the historic ruling. “Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.

“Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

Walker’s decision in Perry v. Schwarzenegger followed a historic trial anchored by two of the nation’s most extraordinary lawyers, Ted Olson of Gibson Dunn and David Boies of Boies Schiller.

On Wednesday, Mr. Olson called the decision a “victory for the American people,” and anyone who had been denied rights “because they are unpopular, because they are a minority, because they are viewed differently," according to an article in the New York Times.

The decision was also a victory for the nation’s legal system, which showed its power to distill public emotion and rhetoric out of a contentious issue, to hold a trial to examine the roots of marriage and its purpose in society, to consider the bigotry and discrimination suffered by gays and lesbians and to render a verdict based on the law and fact.

Olson and Boies, legendary friends and opponents in Bush v. Gore, paired to bring the case despite opposition from the public interest community, including some gay advocacy groups, who favored a state-by-state approach to winning the right to same-sex marriage.

The plaintiffs were backed by the American Foundation for Equal Rights and Hollywood powerbroker Rob Reiner, who put together a powerhouse display of talent from two of the nation’s best law firms to challenge Prop. 8, which provided “Only marriage between a man and a woman is valid or recognized in California.”

The measure was passed by California voters in November 2008. The plaintiffs filed suit to invalidate it on May 22, 2009, claiming Prop. 8 violated the Fourteenth Amendment. When California Attorney General Jerry Brown conceded Prop. 8 was unconstitutional and no other state official would take a position, the wheels set in motion for the backers of Proposition 8 to intervene, leading to one of the most lopsided trials of any significance in American history.

The plaintiffs put on a staggering display including emotional testimony from the four plaintiffs and four other lay witnesses, as well as nine expert witnesses from fields ranging from the history of marriage to discrimination against gays and lesbians. Each day’s testimony was a course in sociology and history, providing opportunity for reflection and education about the purpose of marriage and the government’s proper role in it.

The Prop. 8 proponents’ legal team was led by Charles Cooper of Washington, D.C.’s Cooper & Kirk, who is considered a talent advocate. However, as Walker noted, “While proponents vigorously defended the constitutionality of Proposition 8, they did so based on legal conclusions and cross-examinations of some of plaintiffs’ witnesses, eschewing all but a rather limited factual presentation.”

The defendants mustered only two witnesses, both of whom were severely cross-examined by Boies, who reduced them to being better advocates for the plaintiff than defense.

Prop. 8 proponents persuaded voters to ban gay marriage by appealing to fears that it would teach children it was OK to be gay. In court, however, the initiative’s backers shifted course and relied on a novel “channeling,” theory for the importance of marriage. Its “central purpose,” they claimed, is “to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.”

In his opinion, Walker also noted that the court had reviewed recordings of the proceedings to prepare his decision and was ordering them retained as part of the official court record. The court had sought to televise the trial, but that bid was rejected by the U.S. Supreme Court.

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