Good morning! Today begins the case of Perry v. Schwarzenegger in US District Court in San Francisco, the beginning of a process that will most likely end up in the Supreme Court, and which could be the vehicle to deliver marriage equality rights to the United States. I will be reporting today from the Richard H. Chambers United States Courthouse in Pasadena, CA, one of several closed-circuit remote viewing locations for the trial.
Perry v. Schwarzenegger seeks to overturn California’s Proposition 8, the initiative banning same-sex marriage rights in the state. Ted Olson and David Boies, the lawyers on opposite sides of Bush v. Gore, have teamed up for this effort, hired by the nonprofit American Foundation for Equal Rights to prosecute the case.
During the trial, which is expected to last three weeks, Mr. Olson and Mr. Boies plan to argue that Proposition 8 violates the constitutional guarantee of equal protection and due process.
“The biggest challenge with any of the judges we’ll face is simply to get them to focus on the law and the facts and not on the inertia of history,” Mr. Boies said. “I think the only real argument that the other side has is, ‘This is the way its always been.’ ”
But supporters of Proposition 8 say that California voters were well within their rights to establish marriage as between a man and a woman, as voters in more than two dozen other states have done.
In addition to simulcasting the trial to other courthouses, the US District Court in San Francisco, led by Vaughn Walker, will broadcast the trial via You Tube in a tape-delayed fashion, something bitterly opposed by anti-equality groups. Their injunctions have all failed, and the American people will have the opportunity to see this trial.
And this trial will be unique, the first to my knowledge to put same-sex couples on the stand and hear testimony directly from them.
Scholars, gay and lesbian partners and opponents of same-sex marriage are expected to testify about the nature of marriage and homosexuality during an unprecedented federal trial today to determine whether gays and lesbians may marry.
Unlike other court cases about marriage rights, the trial before 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.
Witnesses expected to testify include the two same-sex couples who brought the lawsuit, as well as experts on marriage’s history and discrimination against the LGBT community. You can see why anti-equality groups may not want this to have a hearing in public; bigotry could be in full display on the stand.
Opening arguments and perhaps the first witness examinations are expected today.



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Opening arguments today? That suggests there’s no jury?
David, any clue about the dealy time for the You Tubes? Will they go up at the ned of each day? SOme other timeframe?
Looking forward to another instance of stellar trial coverage. FDL is head, shoulders, hips and knees above anyone else in this regard. Thanks.
Thank you David and Teddy and Marcy and all the FDL team for blogging/reporting on this. The msm is oh-so-busy reporting on the vital world-shaking Reid gaffe, so they’re doubtless otherwise occupied.
The Quinn of Tarts must be so happy this ayem.
Who are the same sex couples who will testify? Susan Love/Helen Cooksey?
This is not a jury trial.
Headed out now to the courthouse.
“See” you all there!
Gird your loins!
The named couples will testify, not sure who else.
I just bet the “family values” crowd doesn’t wish everyone to see their meanness in the name of the Lord.
Looking forward to the same thing happening with the anti abortion amendments in the “healthcare reform”
From the teamed up link,
“…any publicizing of support for Prop. 8 has inevitably led to harassment, economic reprisal, threats and even physical violence,”
Oh, really? What about the denial of civil rights for gays?
my understanding is end of the day, or possibly day after.
I know it’s very early in the day, but do you have any sense of how big a circus there will be at the courthouse? Any protesters last night? I’m planning on coming and wonder how crowded or crazy it might be. Parking and all that. I’d love to be there for the opening arguments.
Have any of the pro-prop 8 witnesses withdrawn now that they know that there will be public video?
Boxturtle (Hoping they force Arnold to testify)
New post up top…
Funny, I just watched MILK on BRD last night. I’ve never been particularly interested in Gay Marriage rights one way or the other. This movie was about much more than that single issue. Also it was a virtual blue print for activism. It was also particularly sad and disgusting to see in the epilogue that his assailant was only convicted of manslaughter when it was clearly a premeditated double homicide.
Anyway, good luck! There should at least be civil unions if you don’t call it ‘marriage’. I’m sure we will be hearing about this in a Supreme Court decision in a few years.
The other potential outcome is that the Supreme Court will say that lesbians and gays are not entitled to equality under the law, the 14th amendment does not apply to us.
Coverage of this trial and of all same sex marriage projects that could result in an adverse outcome needs to establish the risks that are involved in such an undertaking.
The last thing we need are cheerleaders who are not taking honest stock of the potential downside consequences attendant to any course of action, of those who are steeped in “groupthink,” who believe that since we are of pure mind and of noble spirit, that we will prevail on our terms irrespective of the realities outside of our perimeter.
What part of “it doesn’t work that way” have 34 losses at the ballot box and 2 recent losses in the state Senates of deep blue states have caused this to be so elusive to so many?
You might have noticed that for Prop 6, Milk went down to Orange County and engaged Briggs on our terms, on their turf. During the Prop 8 campaign, precious little was done to confront proponents on our terms on their turf, THIRTY YEARS AFTER MILK TAUGHT US HOW IT WAS DONE.
No, Gavin Newsom campaigned against Prop 8 at the corner of 18th and Castro.
You people are so hypocritical..you espouse “Democracy” as long as it goes your way..Otherwise you sue…SAD
You know your rationale and the reasonableness of your position will be scrutinized closely and likely come up short when you start a sentence with “You people…”
Bush v. Gore, kumari.
I really like a SCOTUS decision to allow the Bush 2000 chair of Florida to decide that legal ballots NOT be counted.
Now that is sad. So much for those ugly trial lawyers.
Right, “you people” can only be used by progressives against tea baggers.
I’d remind kumari that Gavin Newsom got elected more or less democratically, and then directed his county clerk to change the marriage form. Conservatives sued at that democratic outcome, and the result was Prop 8.
Newsom was too self-centered to realize that the upshot of his play would be Prop 8, and the conservatives were too upset with Democracy to avoid suing.
Yeah, I think the problem here outside of about 50% of Americans being completely disinterested in politics and civil rights (they take it all for granted) is that mostly only gay people are vehemently concerned with this issue. And since they are say (1 in 10?) a small minority of the population it doesn’t take too many people to get together on the other side to counter their efforts.
Perhaps straight people like me who do care about politics and civil rights maybe do not give this issue the same weight as gays do. The only compelling reason I can think of for marriage rights or civil unions to be afforded to same-sex couples is property rights and health insurance.
If we had Medicare for all that would be one issue off the table. In the other instance you just hire an attorney to make a rock solid will. I’m sure there are other issues in play on this and I feel like I am getting out of my element a bit, but there are so many seriously fucked up problems in this country I consider all this a side show in a relative sense.
If we solved even half the nation ending problems that are looming, I’d say sure let’s turn to the same-sex couples issue. But right now it is a distraction from the rot and decay that is politics at all levels of government from the local to the federal. Did I mention the corporations are out of control too?
Most lesbians and gays had historically preferred, when polled in the 1990s, that the focus go to job and housing protections. It is only the fact that wealthier, more conservative largely gay men filed lawsuits in the late 80s and early 1990s to move their agenda. That led to wins in Hawaii being slapped down with DOMA and then little progress.
Fast forward to Newsom allowing same sex marriage in SF, and that is when the bulk of progressive queers finally began to realize that we were all being whipsawed by poor strategic planning and that we’d better get on board to support this to put the pain being caused by such poor planning out of our misery.
Unfortunately, our pain was just beginning, as the marriage uber alles crowd had mistaken its consolidation within the LGBT community with support amongst the electorate and political class at large. The right wing lashed back in 2004 with 11 measures, all of which passed, to restrict marriage rights. This also might have raised outcome in Ohio to re/elect Bush II.
It turned out that LGBT support was not the same as broad popular support, and under that misapprehension, the marriage advocates began to pick fights, from Prop 8 to Maine to New Jersey, fights we should have won if approached shrewdly, where we got our asses kicked.
The fact is that, for now, supermajorities of Americans support jobs and housing protections for LGBT, yet our “leadership” is fixated upon marriage and the military, even “progressive” lesbians like Rachel Maddow could care less about popular LGBT democratic support.
Yet as we continue to lose on marriage, we lose political power and our consensus agenda lies unimplemented.
I wish we could solve all problems in which LGBT rights are situated, but that’s not going to happen. We’ve got to play the hand we’re dealt, not some imaginary hand we wish we had.