SAN FRANCISCO — The outcome of a trial opening today in federal court could determine the future of marriage in the entire United States.
That’s the conviction of many closely connected with the Perry v. Schwarzenegger case, the second attempt in a year to strike down California’s Prop. 8 marriage-defense amendment, which was passed by 7 million voters.
“This case will likely go all the way to the U.S. Supreme Court and could determine the future of marriage for the whole country,” said Bill May, who chaired the lay Catholic coalition supporting the ProtectMarriage.com campaign. That campaign ushered Prop. 8 to victory on the November 2008 ballot.
Many believe the trial opening today in San Francisco is just the first step in a much broader battle plan. “If [same-sex “marriage” forces] win at the Supreme Court level, they will have imposed a national right to gay ‘marriage’ in all 50 states,” said Maggie Gallagher, president of the National Organization for Marriage. “That’s their goal. That’s what they’re asking for.”
The Second Prop. 8 Assault
The first attempt to strike down Prop. 8 as unconstitutional failed on May 26 of last year when California’s Supreme Court ruled that the people of California have the right to amend their own constitution.
But the very next day, a newly minted organization called the American Foundation for Equal Rights announced that they had filed a lawsuit challenging Prop. 8 in federal court on behalf of two same-sex couples denied California marriage licenses. An article in this month’s California Lawyer magazine reveals that the plan to form the American Foundation for Equal Rights and challenge Prop. 8 in federal court was inspired in part by Hollywood director Rob Reiner and others in the entertainment industry.
Although named as defendant in the suit, California Gov. Arnold Schwarzenegger declined to defend Prop. 8 on the grounds that the legality of the measure is up for the courts to decide.
So ProtectMarriage.com took up the baton, petitioning the court to allow its legal team to replace the governor and state attorney general and to represent the voters.
Joining forces to represent the same-sex couples for the American Foundation for Equal Rights are star litigators Ted Olson and David Boies, the attorneys who opposed each other in the 2000 Bush-Gore battle over electoral votes in Florida.
A Circus Atmosphere
In an unprecedented move, U.S. district court Chief Judge Vaughn Walker has allowed the proceedings to be televised and to be broadcast at the end of each day on YouTube.
It’s the first time TV cameras have been permitted in a federal courtroom for a trial. On Saturday, attorneys defending Prop. 8 filed an emergency appeal with the Supreme Court Justice Anthony Kennedy, arguing that their client’s right to a fair trial would be jeopardized if each day’s proceedings were posted on YouTube.
“ProtectMarriage.com fought the order to have cameras in the courtroom because it creates a kind of circus atmosphere and it’s intimidating to witnesses on our side,” May said. “In addition, by permitting the proceedings to be posted on YouTube, the judge is opening up the testimony to all kinds of editing, misuse and abuse to further the cause of same-sex ‘marriage’ proponents.”
“An apparent purpose — and surely the obvious effect — of the show trial that [Chief Judge] Walker is staging is to make Proposition 8’s sponsors pay as high a price as possible for their exercise of First Amendment rights,” blogged Ethics and Public Policy Center’s president, Ed Whelan, in National Review Online.
Basically, the attorneys challenging Prop. 8 “want to make out everybody defending marriage to appear to be bigots and discriminatory,” May said. “It could get ugly.”
“Prop. 8 was passed by 7 million Californians. Are they all bigots? Are they all prejudiced?” asks Charles LiMandri of the Thomas More Law Center, general counsel for the National Organization for Marriage in California.
The passage of Prop. 8, LiMandri said, was ”well-grounded in hundreds of years of research and thousands of years of human experience that marriage [between a man and a woman] is best for kids and best for society.”
In the busy days leading up to the trial, Olson and Boies were both unavailable for comment. But Boies’ law firm e-mailed the Register a Wall Street Journal opinion piece in which Boies called the passage of Prop. 8 by California voters “the residue of centuries of figurative and literal gay-bashing.”
Boies regards the fight for same-sex “marriage” to be an act of compassion and justice. “Gays and lesbians are our brothers and sisters, our teachers and doctors, our friends and neighbors, our parents and children,” Boies said. “It is time, indeed past time, that we accord them the basic human right to marry the person they love.”
In the Philadelphia Enquirer, Boies wrote that “it is argued that same-sex marriages are inconsistent with religious teachings. As a Christian, I would disagree.”
He referred to Matthew 22:35-40, where Jesus declares that the two greatest commandments are to love God and neighbor.
In response to that, Bishop Salvatore Cordileone of Oakland, Calif., said, “Every Bible passage which refers to marriage presumes that it is the union of a man and a woman. This is consistent with the understanding of marriage in every human society since the beginning of the human race, without exception, irrespective of how different societies throughout history have regarded sexual activity between people of the same sex.”
Bishop Cordileone, who was active in the Prop. 8 campaign, said that all societies have seen marriage as necessary for the procreation and upbringing of the next generation of citizens.
“Children naturally come from a father and mother, and it is in their and societies’ best interest that they grow up with their father and mother in a stable, loving relationship,” he said. “While this is not always possible, society, for its own good as well as that of its children, should not intentionally deprive children of this fundamental good.”
He also pointed out that marriage is based on natural law, not religious teaching. “Religious teaching builds upon it and deepens our understanding of it; it never contradicts it or replaces it,” he said. “There are lots of different kinds of human relationships, including the intimacy of friendship, but only marriage has the status that it does in the law because of its unique role as a human relationship which affects the public good. No other relationship, no matter how laudatory, has that power. One does not have to be a believer to understand that marriage can only exist between a man and a woman.”
Supreme Court Prospects
The question remains as to the prospects for success of the challenge and a possible appeal to the Supreme Court of the United States. Olson was confident.
“I’ve practiced law for 45 years, and David [Boies] has a number of years under his belt, too,” he told The Wall Street Journal. “Neither of us has ever been accused of taking a case to lose. We are going to win this case.”
But many believe the American Foundation for Equal Rights and their attorneys have miscalculated, especially on the Supreme Court level.
“History says the odds at the Supreme Court now are not so good,” read a statement issued last May by nine leading homosexual-activist groups, including the Human Rights Campaign, Gay & Lesbian Advocates & Defenders and the American Civil Liberties Union.
After the California Supreme Court declared Prop. 8 constitutional, the groups warned their followers that suing in a federal court is “a temptation we should resist. It is by no means clear that a federal challenge to Prop. 8 can win now.”
Further, the leaders of the same-sex “marriage” movement cited “serious risks if we go to the Supreme Court and lose,” one being that if the nation’s highest court doesn’t support same-sex “marriage,” state courts will be less likely to do so.
With four justices on the Supreme Court being faithful Catholics and others able to be persuaded, LiMandri calculates there are enough votes on the current Supreme Court for traditional marriage to win.
“What the other side wants is for more Supreme Court justices to retire and give Barack Obama the opportunity to make additional appointments,” LiMandri said. Obama could shift the balance of power on the court in same-sex “marriage” advocates’ favor.
Attorney Austin Nimocks of the Alliance Defense Fund, part of the ProtectMarriage.com legal team, said he wouldn’t be surprised if the case went to the Supreme Court, “but it’s certainly not necessary. The U.S. Supreme Court already decided this issue in 1972, and there’s no reason why it needs to be decided again.”
In the 1972 Baker v. Nelson decision, two men demanded a marriage license. The Minnesota Supreme Court ruled state law limited marriage to opposite-sex couples, and the U.S. Supreme Court dismissed the appeal. “The Supreme Court justices agreed that there was no right for a same-sex couple to acquire a marriage license, which is the exact issue in California,” Nimocks said.
Various homosexual activists have called the Perry suit “reckless” and “premature.”
But Nimocks called the timing “irrelevant.”
“The notion that it’s ‘premature’ assumes that there’s somehow a same-sex ‘marriage’ victory on this issue later down the road. And we absolutely don’t accept that,” Nimocks said. “You know, 31 out of 31 states have voted on this issue and have affirmed marriage as the union of one man and one woman. Americans are very clear and unified on this point. There’s no reason to believe that there’s a fundamental right in the U.S. Constitution to same-sex ‘marriage.’ There is no place in time in American history — past, present or future — for same-sex ‘marriage.’”
The trial opening today contrasts with decades of careful strategizing by homosexual-activist groups, who have long favored a slow, incremental strategy of mainstreaming homosexual behavior and legalizing same-sex “marriage.” The Perry case is a high-stakes confrontation that many same-sex “marriage” advocates fear could backfire and set back their agenda for decades.
Sue Ellin Browder writes from Ukiah, California.