As we enter the second week of Perry v. Schwarzenegger, the trial challenging the constitutionality of California’s Proposition 8, I wanted to write briefly about two main areas that I’ve been thinking about over this weekend.
First, the brief mention in the opening arguments by Ted Olson about the Defense of Marriage Act. Judge Vaughn Walker asked about whether this case would impact DOMA, and Olson replied that “circumstances around Proposition 8 passing in California make it unique.” This point has been made previously in filings by the plaintiffs and is not surprising. But, hearing it this past Monday reminded me that there could be some language — especially later on in appellate briefs — about why Proposition 8 is unconstitutional that would not apply to (or even harm) the case in some other jurisdictions.
When you file a case, though, your aim is to win your case. And, reality is that there are factual distinctions between what has happened in California and what is going on and has gone on elsewhere. The lawyers should use that to their advantage. What’s more, when all is said and done, a ruling that invalidates Proposition 8 would — regardless of the specific grounds — have serious ramifications for DOMA, other states with marriage amendments, states with state “mini-DOMAs,” and so on.
But, they would be other cases. Meaning, the timeline involved in this case is, quite possibly, only a California marriage equality timeline. Even if ultimately successful before the U.S. Supreme Court, depending on the grounds of that decision, this case could resolve much across the country with one ruling or, and I think more likely, it could craft a narrow decision leaving everything up in the air as to the federal government and the other states. (Ask Doug Berman about criminal sentencing law over the past decade, and he’ll tell you that the Supreme Court is perfectly comfortable doing the latter.)
So, while we focus on this case, which could very well be the landmark case that’s being discussed, it’s important to note that winning this case wouldn’t necessarily obliterate DOMA or strike down state marriage amendments elsewhere. There will still likely be much that remains to be done even if Perry succeeds.
Second, the trial itself. I’ve never really been of the viewpoint that the trial itself is all that necessary. I really think that most of what is going on at trial is distinctions that come down to a matter of degree — but not of type. Witnesses are talking about “how much” and “how good” — not “whether or not.” I’m yet to see anything legally significant that couldn’t have been appended to a motion for summary judgment.
Now, the point of the trial is bigger than that, and I understand why the Olson/Boies team wants a trial: It gives them a many-week megaphone. And, yes, it allows more to be in the record than otherwise would. It’s great and all (especially were more people able to be seeing it); I just don’t think much of the witness testimony is indicative of or particularly essential to the long-term success of the issue.
[UPDATE: This point was illustrated on Tuesday afternoon succinctly by NCLR: "This is torturously slow. Cooper taking forever to make largely irrelevant points that do not alter the validity of basic conclusions."]
Finally, here’s what Tuesday should look like, according to the folks at the American Foundation for Equal Rights:
- Jerry Sanders, the current Republican Mayor and former Police Chief of the City of San Diego who is the father of a lesbian daughter. He will testify about his decision, as Mayor, to support the City of San Diego’s participation in an amicus brief advocating against the exclusion of same-sex couples from marriage and why he concluded supporting marriage equality was and is in the best interest of the local government and community. City Attorney Dennis Herrera will conduct the direct examination of Mayor Sanders.
- M.V. Lee Badgett, Ph.D., a professor of economics at the University of Massachusetts, Amherst, who will testify about the private harms caused by Prop. 8 and the impact of same-sex marriage on the marriages of different-sex couples
- Ryan Kendall, a gay man who will testify about the “conversation therapy” he underwent in his youth and how he has been affected by discrimination.
Law Dork coverage of the trial:
- Supreme Court – Broadcast Stay
- Day One
- Day Two
- Day Three
- Supreme Court – Broadcast Ruling
- Day Four
- Day Five
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