This week marks the start of what the LA Times calls a “landmark” legal case for gay rights as lawyers Ted Olson and David Boies take to the courts to overturn  Proposition 8, the Californian ban on gay marriage. The case, known as Perry v. Schwarzenegger, has attracted national attention, but what is it that Olson and Boies will be arguing?

First, a few details about the case.

The couples involved are Kristin Perry & Sandy Stier and Paul Katami & Jeff Zarrillo. Both couples want to marry but are prevented from doing so due to Proposition 8 which was enacted by voter initiative in November 2008. They are therefore challenging the gay marriage ban in federal court.

Representing them is Theodore “Ted” Olson, former solicitor general under President Bush and a prominent conservative, and also David Boies who was the Democratic trial lawyer who opposed Olson in the Bush v. Gore election hearing. The case is presided over by Chief Judge Vaughn R. Walker for the Northern District of California.

Most notably Charles Cooper, a lawyer for the group Protect Marriage, will be defending Proposition 8. Protect Marriage, a key campaign group for Proposition 8, took up the case after Gov. Arnold Schwarzenegger and Attorney General Jerry Brown declined to defend the ballot measure.

Both sides will be arguing over the constitutionality of Proposition 8 and if there truly exists a legitimate interest in reserving the term “marriage” for heterosexual unions. Olson/Boies believe that Proposition 8 is unconstitutional, that Proposition 8 was motivated by anti-gay bigotry, and, what is more, that equal access to marriage is a constitutional right.

Writing a column for Newsweek, Olson talks us through some of the arguments surrounding Proposition 8 and gay marriage as a whole.

He starts by saying that the conservative “knee-jerk hostility” to same-sex marriage fails to acknowledge the broader picture of how allowing gay couples access to marriage actually strengthens the institution itself and therein perpetuates the conservative ideal:

Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities… The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.

This is an argument that might be used against the opposition should they argue that banning gay marriage carries fundamental interest for the State in preserving the traditional definition of marriage.

Judge Vaughn Walker has already made this avenue difficult to pursue for the defenders of Proposition 8 when he challenged them to actually demonstrate how heterosexual marriage is undermined when same-sex couples are also allowed to marry.

Olson then draws on the notion that civil unions and the like are not, and can never be, a replacement for marriage, and that anything less than marriage is a denial of basic rights. This is interesting because, in upholding Proposition 8 in May last year, the Supreme Court of California ruled that the difference between marriage and the domestic partnerships that are now open to LGBT Californians was nomenclature– that it was just a word. Clearly this difference of opinion can be expected to feature quite prominently in the trial as can the idea of “seperate but not equal” legislation.

An argument as to the “tradition” of marriage is also likely to feature. Olson quite effectively slams a dividing wall down between the religious recognition of marriage and marriage as a civil institution in the U.S., saying that:
 

“Marriage is a civil bond in this country as well as, in some (but hardly all) cases, a religious sacrament. It is a relationship recognized by governments as providing a privileged and respected status, entitled to the state’s support and benefits. The California Supreme Court described marriage as a “union unreservedly approved and favored by the community.” Where the state has accorded official sanction to a relationship and provided special benefits to those who enter into that relationship, our courts have insisted that withholding that status requires powerful justifications and may not be arbitrarily denied.“

He asks, therefore, how it can be that California can place a ban on equal access to civil marriage for gay couples?

Olson also refutes that Proposition 8′s nature as a voter enacted initiative strengthens its validity. He argues that the very essence of equal protection is that it is designed to protect minority rights from the will of the majority.

This will be a key issue in the case as the opposition attempts to establish that Proposition 8 was enacted as part of the democratic process and therefore is “the will of the people” as the “ultimate legislators”. This will be one of the larger and more contentious issues that speaks to the very heart of whether sexuality is to be treated in the same regard as other protected classes such as race and religion.

Olson goes on to highlight how speaking to procreation as a legitimate argument for restricting marriage does not hold weight either. He contends that because marriage is not restricted from such groups as the elderly, or even persons that can not, or do not want, children, preventing same-sex couples access to marriage on the grounds that they can not procreate displays very obvious bias and unequal treatment. Judge Walker also demonstrated skepticism of this argument during a pre-trial hearing last year.

Olson concludes the article with how he believes that Proposition 8 is weakened by California’s tangled web of marriage legislation which, because of Proposition 8, has created three separate classes of unions in California: Heterosexuals who are married, gay and lesbian couples who were married during the brief interim of gay marriage bans and still retain the right to call their union a marriage, and finally gay and lesbian couples who are relegated to domestic partnerships. In this way, Olson argues that Proposition 8 is “particularly vulnerable to a constitutional challenge”. 

Readers who are interested to know how Olson/Boies will attempt to prove that there is a constitutional right to gay marriage may wish to read “Yes: It is a fundamental right under the constitution”  written by David Boies.

In the piece, Boies cites four major court cases in which he believes the constitutional question of equality in marriage rights has already been established. With regards to the right to marry, Boies is quite firm:

“The constitutional issue is quite simple. The Supreme Court repeatedly has held that the right to marry the person of your choice is a fundamental human right guaranteed by the equal-protection and due-process clauses of the Constitution.”

He believes that this means same-sex couples should also have access to the civil institution of marriage just like heterosexuals.

So how important is the Perry v. Schwarzenegger case? Should the case eventually reach the U.S. Supreme Court and be won with California’s gay marriage ban being struck down, it would be hard to justify any other state’s same-sex marriage ban and therefore the implications could be wide reaching and beneficial. From the American Foundation of Equal Rights:

The case is intriguing, exciting and potentially very significant because it addresses multiple important questions that, surprisingly to many, remain open in federal law,” said Jennifer Pizer, marriage director for the gay law advocacy group Lambda Legal. “Can the state reserve the esteemed language and status of marriage just for heterosexual couples, and relegate same-sex couples to a lesser status? Are there any adequate public interests to justify reimposing such a caste system for gay people, especially by a majority vote to take a cherished right from a historically mistreated minority?”

Should Olson and Boies lose however, the decision to uphold Proposition 8 could, potentially, slow progress toward marriage equality for years to come with a dangerous and stifling precedent.

The New Yorker has a lengthy but rewarding piece detailing the case which you can read by clicking here.

In related news, the Supreme Court of the United States has been petitioned by the supporters of Proposition 8 to prevent camera footage from the court case being broadcast on YouTube and a live feed being established.

At the time of writing this, broadcast has been blocked for three days as the Court says that they require more time to deliberate. Proposition 8 supporters argue that they will be subjected to harassment if their identities are known while those trying to overturn the ban maintain that transparency and public interest require the trial be broadcast.

The trial is expected to last for around three weeks. It is expected to reach the United States Supreme Court in March, 2011.

Related Reading:

• Theodore Olson’s Road to Same-Sex Marriage Advocacy
• Perry v. Schwarzenegger Complaint

Care2 Related Reading:

• Won’t Someone Think of the Children?
• The Proposition 8 Court Case: Opening Statements, Testimony and Reaction
• The Proposition 8 Court Case: What’s the Big Idea?
• Should the Prop. 8 Court Case Be Broadcast?