June 25, 2010

"WE CONCLUDE this trial, Your Honor, where we began. This case is about marriage and equality." So began the closing argument of the lawyer challenging California's Proposition 8, which revoked marriage rights for same-sex couples in California just months after it was made legal.

Perry v. Schwarzenegger, a lawsuit filed on behalf of two same-sex couples, calls on the federal courts to declare Prop 8 unconstitutional. The case got underway in a federal courtroom in January and has stretched on until now. A decision from Judge Vaughn Walker is expected sometime in the coming days and weeks.

Both pro- and anti-LGBT rights groups are looking forward to the ruling with keen anticipation, but everyone realizes there will almost certainly be an appeal of any decision--and the case could well end up before the Supreme Court years from now.

Speaking to a packed courtroom and an overflow crowd, Theodore Olson--formerly a lawyer for the Bush White House, but now arguing in favor of marriage equality--stated that Prop 8 deprived gays and lesbians in California of the "fundamental constitutional right to marry" in violation of the Fourteenth Amendment.

Large crowds gathered outside San Francisco's Civic Center to protest the passage of Proposition 8 (Steve Rhodes)

Responding to the anti-marriage equality claim that marriage should be restricted to "one man, one woman" because that's "tradition," Olson pointed out the landmark Loving v. Virginia that overturned legal bans on interracial marriage in 1967, and the Supreme Court decision in 1954 Brown v. Board of Education overturning racial segregation in schools:

"We've always done it that way"...is the corollary to "Because I say so."...You can't have continued discrimination in public schools because you have always done it that way...You can't have continued discrimination between races on the basis of marriage because you have always done it that way."

Both the Brown and Loving decisions were based on the Fourteenth Amendment, which in 1868 overruled the Dred Scott Decision that held that African Americans "had no rights which the white man was bound to respect."

Charles Cooper, the lawyer defending Prop 8 on behalf of the original supporters of the measure, insisted that the same-sex marriage ban should be upheld because "the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions."

Ironically, Cooper's support for social engineering by the state regarding sexual relationships contrasts with an influential Yes on 8 ad during the 2008 campaign, which quoted San Francisco Mayor Gavin Newsom saying that same-sex marriage would pass "whether you like it or not"--in other words, an appeal to fears of state interference and arrogance.

Cooper also stated that the purpose of heterosexual marriage is to provide an "enduring and stable family environment for the sake of raising the children so that essentially the society itself...doesn't have to step in and take upon its own shoulders the obligations to help in the raising of those children."

There couldn't be a clearer illustration of the fact that the anti-marriage equality forces don't care about protecting California's children. They want to preserve the traditional nuclear family, where women are responsible for the burden of raising those children.

SOME SUPPORTERS of marriage equality have criticized the strategy of filing suit against Prop 8 because the case, even if successful at a lower level, will probably end up before a Supreme Court stacked with right-wing justices.

But court cases don't take place in a vacuum. It's also critical what happens in the streets--a point underlined by Judge Walker's question to Olson about whether there was a "political tide" in favor of same-sex marriage that would make the Supreme Court more likely to uphold a decision to overturn Prop 8.

In 2008, California became the second state after Massachusetts to legalize same-sex marriage as a result of a California Supreme Court decision that denying gays and lesbians equal marriage rights violated the state constitution.

The decision came in a lawsuit against the state filed by the ACLU, Lambda Legal and the National Center of Lesbian Rights after the same state Supreme Court forced San Francisco to stop issuing marriage licenses to same-sex couples, a move by Gavin Newsom in defiance of state law.

As soon as the court legalized equal marriage, anti-LGBT forces, with major backing from the Mormon and the Roman Catholic Churches and a variety of right-wing politicians, immediately submitted signatures for a ballot measure to overturn same-sex marriage. The battle in the run-up to the November 2008 elections was hard-fought. More than $83 million was raised by Yes on 8 and No on 8 forces, nearly an even split with some $3 million more for marriage equality.

In the end, Prop 8 passed narrowly by 52-48 percent, a disappointment for many on a day that produced the first African American president.

The passage of Prop 8 stirred anger immediately. Starting on Election Night itself and continuing through the week, people in California and across the country took to the streets in protest, producing a new stage in the movement for equal rights for LGBT people and a new generation of activists, known as "Stonewall 2.0." The upsurge in struggle grew in the aftermath and the election, leading to new grassroots organizations coalescing, like Join the Impact, the San Diego Alliance for Marriage Equality and One Struggle, One Fight in San Francisco.

On May 26 of last year, tens of thousands protested in California and across the country when the California Supreme Court upheld Prop 8. And in October, more than 200,000 people demonstrated in Washington, D.C., at the National Equality March, demanding full federal equality for LGBT people. Since then, activists with Equality Across America have held regional conferences and continued organizing protests, along with other newly formed organizations.

This resurgence of activism is the important political context that makes the success of Perry v. Schwarzenegger a possibility.

IN AUGUST 2009, the newly formed American Foundation for Equal Rights (AFER) filed a federal lawsuit in California on behalf of two same-sex couples who were denied marriage licenses by Alameda and Los Angeles Counties.

The case became Perry v. Schwarzenegger and is being argued by Theodore Olson and David Boies, the attorneys who faced off against each other in front of the U.S. Supreme Court in the Bush v. Gore case that decided the 2000 presidential race. The state of California declined to challenge the lawsuit, and so the defense was taken up by the organizations that Prop 8 in the first place.

From the beginning, the defenders of Prop 8 fought tooth-and-nail to keep details of the Yes on 8 campaign, as well as their arguments in Perry v. Schwarzenegger, away from the public eye, blocking access to campaign documents and preventing video of the trial from being broadcast on YouTube.

The anti-marriage equality forces have something to hide. Behind their claims that Prop 8 is about protecting children and families is something more sinister: bigotry.

In his testimony at the Perry trial, Dr. William Tam, who supervised the language of Prop 8 , testified that he believes "homosexuality is linked to pedophilia...polygamy and incest." During the run-up to the passage of the measure, Tam wrote that if Prop 8 doesn't pass, "they will lose no time pushing the gay agenda," which according to Tam includes "legalizing sex with children."

Tam himself seeks to push his bigoted views on children. He is executive director of the Traditional Family Coalition, which sponsored an essay contest (with a $3,000 scholarship as top prize) inviting high school students "to suggest ways to reduce social problems," followed by a list that puts "homosexuality" on par with "political corruption," the "AIDS epidemic" and "gang violence."

In the face of such ugly hate, it's hard to deny the point made by Dr. Gregory Herek, a University of California Davis professor and expert on sexual orientation, at the trial: "Structural stigma in the form of laws that discriminate against LGBT people directly encourages social stigma, harassment, and violence."

A victory in the Perry case, even if an appeal is assured, will give supporters of marriage equality more confidence to continue the struggle. But whichever way this case goes, the fight will go on.

Although Brown v. Board of Education outlawed school segregation in 1954, it took 10 years of mass protest to overturn Jim Crow in the South. Finally winning marriage equality will depend on continued pressure from below.