The first day of testimony in Perry v. Schwarzenegger, the federal district court trial seeking to invalidate California’s Proposition 8 as unconstitutional, got underway yesterday, and you can read great play-by-play coverage from FDL’s Teddy Partridge and the Courage Campaign’s Prop 8 trial tracker. Gay rights advocates, who have waited for this battle in federal court, want to see the Obama Administration take a stronger stand against discrimination and for the rights of minorities.
I spoke with Geoff Kors, the Executive Director of Equality California, which led the opposition to Prop. 8 in November 2008. He was excited about the first day of testimony, particularly the words of the four same-sex partners who took the stand, the first time in a federal trial that same-sex couples have testified. “Their testimony was really moving. You heard them say that marriage is not just about rights and benefits but about love and commitment.”
Kors also singled out Ted Olson’s opening statement as the conservative case for marriage equality. Olson said that allowing certain couples a separate status despite similar rights and benefits creates a stigma without a compelling rational basis for doing so. “To have a conservative legal scholar take that position is very powerful.”
Before the trial began, Kors released a statement calling on the Obama Administration’s Justice Department to issue an amicus brief in favor of their position in Perry v. Schwarzenegger.
“The time has come for elected leaders to empower all Americans, regardless of sexual orientation or gender identity. Once again, we call on the Obama administration to join Equality California and others in urging the federal courts to strike down this grossly unjust law. In doing so, we will bring our nation one step closer to realizing its promise of equality for all. Our country’s bedrock principles of democracy and freedom are at stake.”
Kors elaborated on that after the first day of testimony. “This is the civil rights trial of the decade,” he said. “We’re asking the Justice Department to weigh in on a basic principle. This doesn’t only apply to the LGBT community, but all minorities. And to be silent is unacceptable.”
Obviously, Obama’s perceived reticence to speak out meaningfully on LGBT issues while President has caused strains with that constituency. Providing an amicus brief would help to soothe those tensions, and show LGBT Americans that he is willing to go beyond talk, and toward action. “If Obama would have the courage to lead on this issue, it would say a lot about him and of course change the sense many in the LGBT community have that he is not pushing for equality,” said Rick Jacobs. “Think how you and so many others would feel if Obama spoke up.”
Kors offered a historical perspective. “In 1978, right-wingers tried to pass the Briggs Initiative, which would have fired gay teachers. And it wasn’t just the LGBT community that spoke out. President Carter, Governor Jerry Brown and former Governor Ronald Reagan all came out against it, and that went a long way to defeating the initiative. Now we have Arnold Schwarzenegger and Jerry Brown weighing in by refusing to defend this case in federal court. One voice is missing – President Obama. And it would have tremendous resonance.”
Obama’s name actually came up in court several times on the first day – from the pro-Prop 8 side. They quoted Obama as supporting the concept of marriage as between a man and a woman. Pro-equality lawyer David Boies countered that Obama’s parents wouldn’t have been allowed to marry in most states before Loving v. Virginia allowed inter-racial marriage. But clearly, Obama’s words are being used as talking points in this trial. “The fact that right-wing groups oppose everything by the Obama Administration, and then use his position to support their claims on Prop 8, makes it more important that he make himself known,” said Geoff Kors.
Gay rights groups are generally united in supporting this trial, despite some early apprehension that the timing of the case may be wrong or the attorneys would not be up to par. But securing Olson and David Boies, who were on opposite sides of Bush v. Gore, gave more confidence to the LGBT community that this was the right case to pursue. Also, the California Supreme Court’s ruling, allowing for a separate legal status for certain same-sex couples and not for others, “changed the game” in the view of Mr. Kors. “They created a separate and unequal status, and the Supreme Court already ruled against that with Colorado’s Amendment 2. We knew we had a case. Because if the majority can keep a right for themselves, and take it away from others, that would drive a stake through the heart of the Constitution.”
Advocates found it unfortunate and telling that the US Supreme Court blocked the broadcast of the trial for YouTube and to select courthouses across the country. Rick Jacobs of the Courage Campaign told FDL News, “The Prop 8 proponents seek to hide the truth. They know that this trial exposes their scare tactics for what they are–attempts to divide America for no good reason (using Olson’s words).” Kors, of Equality California, added that thousands of state trials have been broadcast over the years, and that people gain more trust in the judicial system by seeing it in action. “If you believe in your arguments, you want everyone to hear them,” Kors said. Jacobs added, “They tried repeatedly today to avoid showing campaign ads. If they are scared of their own ads in open court, how anxious must they be to hide their intent and the open, straight forward conservative arguments of Olson? What do they have to hide? Apparently everything.”
As for the argument that Prop 8 defenders who testified at the trial would be targeted if the trial was broadcast, it’s a curious argument, considering that the testimony and names of those taking the stand will be a matter of public record. “The people who would want access would have it,” said Kors, so blocking the broadcast for that reason makes no sense. Kors believed that the real reason anti-equality groups wanted to block the broadcast was due to the power of the testimony from real couples who wanted the same status for their committed relationship as everyone else. “If people hear them, we believe they will change their position.”