A ‘Brown v. Board’ for Same-Sex Marriage?
California’s ban on same-sex marriage goes on trial in federal court today.
The case, Perry v. Schwarzenegger, was brought by advocates of same-sex marriage hoping to overturn Proposition 8, which banned same-sex marriage in California with 52 percent of the vote in November 2008. That ballot initiative overturned a state supreme court ruling that had temporarily allowed gays to wed in the state.
The case marks a change in strategy for same-sex marriage proponents. So far, five states — Iowa, New Hampshire, Connecticut, Massachusetts and Vermont — have legalized same-sex marriage, but the state-by-state campaign has left an uneven legal landscape. Voters overturned a law allowing gay marriage in Maine last year and in recent weeks, the state senates of New York and New Jersey have defeated same-sex marriage bills.
Comparisons are already being drawn to the 1954 case that outlawed racial segregation in schools.
“This could be our Brown vs. Board of Education,” former Clinton White House adviser Richard Socarides told the Associated Press. “Certainly the plaintiffs will tell you they are hoping for a broad ruling that says that any law that treats someone differently because of sexual orientation violates the U.S. Constitution.”
This trial will also put far more on the public record than before.
According to the LA Times:
Unlike other court cases about marriage rights, the trial before [Judge] Walker will involve weeks of testimony on wide-ranging issues.
“Actually putting witnesses on the stand has never been done before in any lawsuit claiming a right to same-sex marriage,” said Proposition 8 campaign attorney Andy Pugno. “So this is a very out-of-the-ordinary approach.”
David Boies, a lawyer for the challengers of the ballot measure, said he expected the case would reach the Supreme Court in the fall of 2011.
“This is the first time that you will have this kind of record being made” on the social, religious and legal implications of same-sex marriage, said Boies, who represented former Vice President Al Gore in Bush vs. Gore, the Supreme Court case that gave George W. Bush the presidency.
Also worth noting: California’s highest elected officials have refused to defend the law outlawing same-sex marriage in court. State Attorney General Jerry Brown, a Democrat, and Republican Gov. Arnold Schwarzenegger are both named as defendants in the case — by virtue of their positions — but both opposed Prop. 8. Brown filed a motion with the court saying he agrees with the plaintiffs.
If plaintiffs win here or on appeal, Perry v. Schwarzenegger is almost certain to end up in the Supreme Court, Andrew Koppelman, a professor of constitutional law at Northwestern University, told Reuters.
“There is no way to keep this out of the Supreme Court if they win,” said Koppelman, who has written books arguing in favor of same-sex marriage but sees this push as ill-timed due to the composition of the nine-member top court.
“Who are going to be your five votes on the Supreme Court? I have trouble getting to one.”
But the trial won’t be quite as public as originally planned. Presiding Judge Vaughn Walker said he’d allow cameras in the courtroom, both for live broadcast and to be archived on YouTube. But the U.S. Supreme Court stepped in today, blocking video coverage at least until Wednesday after a last-minute appeal from Prop. 8 backers.
Tonight on the NewsHour, we’ll have a special report on the landmark case from correspondent Spencer Michels.