As Judge Vaughn Walker prepares to hear closing arguments in Perry v. Schwarzenegger the landmark case against California’s Proposition 8 today, supporters of the measure are urging him to “go a step further and revoke state recognition of the marriages of 18,000 gay and lesbian couples who wed before” voters stripped same-sex couples of their right to marry in November 2008.
The closing arguments come almost five months after testimony ended in January and two years after “the first legal marriages in California on June 16, 2008.” Prop. 8 overturned the court ruling that permitted the marriages and a separate ruling upheld the constitutionality of the measure, “while also affirming the legality of 18,000 same-sex marriages performed before the election.”
The Perry case was first filed on May 22, 2009 by The American Foundation for Equal Rights on behalf of two couples who wish to be married but cannot because of Prop. 8, and led by Theodore Olson and David Boies, the lawyers on opposite sides of Bush v. Gore. Legal scholars have described the case as “the most important battle between tradition and modernity since the Scopes trial” and expect that Judge Walker’s decision — which most certainly will be appealed and could reach the Supreme court in two year — “will be a blockbuster, at least in terms of its scope, depth and detail.” The Foundation describes the case in this way:
At its core, this case is about equal justice under the law. Separate is never equal, and Prop. 8 violates Americans’ constitutional rights by creating separate classes of people with different laws for each one.
Prop. 8 denies fundamental constitutional liberties, which harms adults and their children without due process and for no good reason — no compelling government interest is advanced through Prop. 8. It is wrong to deny people fundamental constitutional liberties, like equal protection under the law, simply because of who they are.
The objective of the lawyers supporting the Prop. 8 was to prove that the state had a rational basis for denying same-sex couples the right to marry, but as the LA Times notes, throughout the case, “some of the strongest arguments in favor of same-sex marriage were made by those opposing it.” For instance, “one witness who had been hired to testify that gay men and lesbians wield significant political power — and therefore were not a group that had especially suffered from discrimination — ended up conceding that at least some people voted for Proposition 8 because of prejudice against homosexuals” and “had made statements in the past that minorities were vulnerable to harm from ballot initiatives, and that courts should protect them from such harm.” Another witness, David Blankenhorn, the founder and president of the Institute for American Values, testified that “preserving traditional marriage should take priority over the rights of gays and lesbians — but then offered no proof that same-sex marriage would in any way harm the institution of marriage, and admitted that marriage would be beneficial to families headed by same-sex couples.”
Documents and videos obtained by Olson and Boies also revealed that “the Prop. 8 campaign paid for broadcasts that sought to link marriage equality to incest, polygamy, bestiality, and pedophilia to justify the elimination of people’s rights,” suggesting that proponents of the proposition were driven by discriminatory motives, not state interest.
Today’s closing arguments will likely last all day, with a ruling expected in the coming weeks. Walker sent both sides 11 pages of questions he wants addressed in the arguments. You can read their responses here and here or follow live coverage from inside the courtroom here.