Perry Plaintiffs (from left to right) Sany Stier, Kris Perry, Jeff Zarrillo and Paul Katami stand, as Chad Griffin, seated, looks on. (Image from Diana Walker via AFER.)
If you have thoughts about the Perry v Schwarzenegger lawsuit challenging Prop 8, the trial begins on Monday and I’d like to use Law Dork as a place where Perry thoughts are shared. I’ll be posting, but I’d like to hear people’s thoughts on the legal issues being considered at trial, on the long-term legal implications of the case, on the social and political ramifications of the case and of the personal impact of the case.
So, whether you’re a lawyer, law student, political scientist, philosopher, poet or otherwise, send your thoughts — and whether you want your name used — to me.
I’ll be posting stuff as I get it and am able to post.
Also, if there is any lawyer or law student (or anyone else) who plans to attend the trial or watch it at one of the streaming courtroom locations and is interested in providing updates, please let me know. I’d be very interested in posting your coverage at Law Dork.
My complete coverage of the case is collected here.
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Chris Geidner is the award-winning senior political editor at D.C.'s Metro Weekly and has written for The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
I follow your site with keen interest, and appreciate your thoughtful commentary.
One persistent “Perry” controversy concerns the timing of the case. Many doubt that Justice Kennedy – the 5th “swing” vote needed – will sign on to a U.S. Supreme Court decision in favor of the Perry plaintiffs. In his latest op-ed in Newsweek, Olson again tries to answer concern that the case was improvidently timed. (He repeats the answer he has been giving.) I am doubtful that his latest reply will arrest fear that the risks of the case outweigh its potential benefits to same-sex couples, American society, and the constitutional ideals of due process and equal protection. What do you make of this controversy? One possibility, little discussed, is that the trial will inform public debate in a unique way, changing the issues debated – at least if Kennedy allows for a YouTube broadcast.
Hey Chris,
A question regarding the future of the Perry case when (and if) it reached the SCOTUS. At that level, would the federal DOJ become involved? As the case would impact DOMA, at least on some level, would DOJ be required to defend the ban(s) on same-sex marriage? Or is this strictly between Perry et al and the State of California, even at the SCOTUS level?
Also, regarding rational scrutiny, am I wrong in thinking that since banning same-sex marriage does not prevent same-sex couples from having and raising children that the “protect children” and “best suited to a mother and a father” arguments are not rational? In other words, if the stated rational government interest is to nurture procreation and “protect” children, wouldn’t it be rational to ban same-sex couples from having custody of children instead of banning same-sex marriage which has no implication on whether or not same-sex couples raise children?
Thanks,
John Visser
What I do not understand is why, if you are going to bring a national case against a gay marriage ban, you would chose Prop 8, which is relatively circumspect, compared to far more draconian and flagrantly homophobic anti-gay amendments in other states. For example, the Marshall-Newman Amendment in VA bans marriage, civil unions, DPs, and basically gay couples smiling at each other in public. Wouldn’t this law be a better avenue of attack?
In the first half of the twentieth century, the NAACP brought cases desegregating Law Schools and Graduate Schools before desegregating elementary schools because the taboo against children of different races mixing was stronger than that of adults. Wouldn’t it be wise to apply the same strategy and attack civil union bans first?
I simply cannot imagine a majority of supreme court justices, no matter what is in their hearts, establishing SSM nationwide when it exists in only a handful of states and has been voted down in 30. I think this has Plessy V. Ferguson/Dred Scott/Bowers v. Hardwick written all over it.
The crazy-quilt of classifications created by Prop 8 is plainly unconstitutional. We have hetero couples younger than 62 who can marry, divorce, and remarry at will but not become DPs; hetero couples 62 and over who can marry, divorce, remarry, or become DPs; same-sex couples who can’t marry but can become DPs; and a special group of 18,000 same-sex couples (including myself and my wife) who are married but if we divorce or are widowed cannot remarry; same-sex couples who married outside of California before Prop 8 passed whose marriages will be recognized but who also cannot remarry if they are widowed or divorced.
Similarly situated citizens being treated differently based on irrational animus toward a group–pretty much the dictionary definition of a violation of the 14th Amendment.
Sending children to an inferior school and treating them as sub-human in all areas of life based simply on their skin color is also pretty much a dictionary definition of the 14th amendment, yet such was the case for a hundred years. The supreme court gave segregation its stamp of approval in 1897 despite the fact that it clearly violated the 14th amendment.
I’m not saying the plaintiffs are wrong on the merits-of course I want gay marriage to be legal. I agree with everything you wrote, I just don’t think its going to matter. The time isn’t right politically and history demonstrates that this produces disastrous decisions that this produces wrong decisions (dred scott, plessy, pace v. alabama, boers v. hardwick)