A federal law suit filed last year by two California same-sex couples (one gay; one lesbian) has raised constitutional issues in the gay marriage context and is unfolding in a momentous trial. In Massachusetts, another federal case tests whether a federal statutory provision that draws a sexual-preference distiniction is constitutional.
The complaint in Perry v Schwarzenneger, filed in the Northern District of California and assigned to Judge Vaughn R. Walker, has high-powered lawyers seeking far-reaching relief for the rights of (gay) individuals. The case is another chapter in the tumultuous world of 21st Century Californian sex-gender politics. The “all-in” nature of the Perry case, however, will have effects that touch most families in America.
You may or may not recall that back in 2004, the newly-elected young and dashing San Fransisco mayor Gavin Newsom made an international splash by presiding over same-sex civil marriage ceremonies conducted at City Hall. The California Supreme Court squashed the practice in about 30-days, voiding all the marriage licenses issued as a result of Gavin’s project.
In a May 2008 change of course, the California Supreme Court decided (4-3) the case known as In Re Marriage Cases, holding that any California laws, “that treat persons differently because of their sexual orientation should be subjected to strict scrutiny…” The California high court decision struck down proposed state legislation seeking to ban same-sex marriage on the grounds the initiative violated the California constitution.
Six months later, in yet another change of course, the California electorate (narrowly) approved Proposition 8, defining marriage as between opposite-sex couples only. The California Supreme Court swiftly followed suit in Strauss v Horton, upholding the passage of Proposition 8, but applying that referendum prospectively, thereby preserving the approximately 18,000 marriages that had been performed prior to the passage of the referendum; and perhaps unwittingly creating an arbitrary class of persons to which other gays can point in an equal protection analysis.
Enter the lesbian couple Kris Perry and Sandy Stier (Berkeley) and gay couple Paul Katami and Jeff Zarrillo (San Fernando Valley), pictured in the above link emerging from the federal courthouse following the first day of court proceedings. The couples, very carefully selected by well-funded and well-connected gay rights activists, were apparently up for the arduous task of prosecuting constitutional federal litigation. Neither couple were among the tens of thousands to take advantage of the narrow 6-month window to obtain a marriage license in mid-2008, making them ideal constitutional-litigants.
Some gay rights activists have criticized the suit as premature and ahead of the public opinion curve on the same-sex marriage issue. While the concept seems to be gaining ground in abstract opinion polls, to date, only 5-states allow same-sex marriages: Connecticut,Iowa, Massachusetts, New Hampshire, and Vermont. On the other hand, 29-states (including Michigan) have amended their Constitutions to outright ban gay marriage by defining a marriage as between a man and a woman.
Many in the front-lines of the gay rights movement prefer the slower, state-by-state approach to “resolving” the same-sex marriage issue. They worry that the Supreme Court could hand their movement a serious setback by issuing a neutral or worse, an anti-gay, decision along the lines of the 1986 Bowers v Hartwick decision (upholding a Georgia sodomy law on the basis there was no constitutional protection for sexual privacy). It took the high court 17-years to reverse the dubious Bowers decision in the seminal 2003 case of Lawrence v Texas, which expressly overruled their prior decision as defining the liberty and privacy interests of two consenting adults too narrowly to survive a Due Process analysis.
There is also a notion that gay-marriage was removed via the ballot box and that’s where the battle should be won. In our Democracy, however, core individual rights (once defined) are not subject to the ebb and flow of majority rule.
Other gays are tired of waiting, however, genuinely offended by the series of referendums passed which discriminate against their sexual orientation. For example, California already has a progressive civil union statute to protect property rights and employment benefits. But the Perry case is about much more than property rights and benefits; it is about individual liberty and the sacred right to chose one’s life partner, one’s spouse, without interference from the state. Court watchers equate the Perry case to that of Brown v Board of Education (abolishing the “separate but equal” fallacy in public schools) and Loving v Virginia (holding that a state could not prohibit interracial marriages).
Whatever the outcome of the trial, an intermediate appeal to the Ninth Circuit is guaranteed to send this one to the United States Supreme Court. Plaintiffs are represented by the unlikely but outstanding duo of Ted Olson and David Boies of Bush v Gore fame. The former represented Bush as Solicitor General; the latter represented Vice President Al Gore in the famous case settling the 2000 presidential election.
Olson’s conservative credentials have led some to wonder whether he is serving as a “double agent” planted to hand the movement a serious setback at the high court. Olson should be taken at his word, however, when he states that, separate is not equal and that a “civil union” is not the same as a marriage. With 44-wins already before the high-court, Olson likes his chances at that level and genuinely believes he’s on the correct side of this issue.
In the meantime, the Perry case has already been to SCOTUS; Judge Walker’s decision to televise the trial on YouTube was appealed from the other end of the state by Senator Dennis Hollingsworth. The appeal stayed the trial judge’s decision to stream the trial to the Internet and subject all of us to reading about the case, or suffering through a painful re-enactment of the trial. Several key depositions taken last fall, however, have been leaked to YouTube, and effectively convey the background surrounding what is shaping-up as our next great civil rights struggle.
5-votes will be required to establish precedent once a writ of certiorari is inevitably issued by the high-court in the case. Olson and Boies will probably need to persuade Justice Anthony Kennedy, an oft-breaker of ties at the Court.
SCOTUS-watchers figure the so-called liberal bloc of Justices (Ruth Bader Ginnsburg, Sonia Sotomayor, Stephen Breyer, and John Paul Stevens) will vote to condemn Proposition 8 as unconstitutional on Equal Protection grounds. Since Justice Stevens announced his retirement on Friday, effective at the close of this session of the Court in June, President Obama’s second high-court nomination takes on critical importance in the Perry case. Justice Stevens’ replacement will most-likely be a confirmed sitting Justice by the time Perry is on the high-court’s docket sometime in 2012; the day-after-tomorrow from the Supreme Court’s usual long-range perspective.
Of note: Perry is not the only “gay-rights” case percolating through the federal courts at the moment. Also destined for certiorari is Gill v Office of Personnel Management. That case presents a more narrow constitutional challenge to a specific provision of the Defense Against Marriage Act preventing same-sex couples from receiving benefits that other non-gay federal employees receive for their families.
Plaintiff’s counsel in Gill, Mary Bonauto, prevailed in the Massachusetts case that legalized gay-marriage. While Bonauto acknowledges that her more-recent federal case is not the left-coast headline-generator that Perry is, she is mindful that both cases seek to expose the federal government’s “double standard” when it comes to same-sex marriage; the feds recognize a wide-variety of marriages once they are licensed by a state, except in the case of gay-marriages. Bonauto and other legal professionals fear that Perry seeks too momentous and far-reaching relief; the decision, after all, could invalidate anti-gay-marriage laws in nearly 40-states.
Michigan Connection: In addition to those of us who have a family member involved in a same-sex union (my brother) or who are themselves involved in such a union, the left-coast Perry case could invalidate the 2004 Marriage Amendment to Michigan’s constitution.
Also, the electronic divorce attorney (yours truly) will be admitted to the bar of the United States Supreme Court on the final day of this session, June 21st; Justice Stevens’ final day of his long career on the high-court.
Stay tuned for the outcomes of these cases folks as we strive to keep you informed of significant developments.
Timothy P. Flynn is an Attorney practicing in Southeast Michigan. He maintains a general law practice in the primary areas of family law, criminal law, and probate litigation.
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