LGBT POV

(Editor’s Note: Jennifer C. Pizer, Senior Counsel and National Marriage Project Director for Lambda Legal, is joining LGBT POV and will also contribute legal expertise to Frontiers In LA Magazine on the federal Prop 8 trial, Jenny has served as an adjunct professor of law at USC School of Law, Loyola Law School and Whittier College of Law.  She was co-counsel for plaintiffs in the California marriage equality litigation and the state court challenge to Proposition 8. – Karen Ocamb)

There is cause for optimism in the federal Prop 8 trial

By Jenny Pizer

At 8:30 Monday morning, the curtain will rise on one of the compelling legal dramas of our time.   At the helm of Perry v. Schwarzenegger will be former Bush v. Gore courtroom adversaries, Ted Olson and David Boies, standing together against Proposition 8 and the petitioners and strategists who pushed that measure on California voters.

Perry was brought on behalf of two same-sex couples who have the burden of proof in the case.  But it’s fair to say that it’s really Prop 8 and the goals of the initiative’s proponents that will be on trial.  And a core question is whether the initiative advances any valid public purposes—at all—adequate to justify having changed “equal protection” in California into “equal-if-we-like-you protection.”

Many are startled to learn how many big federal constitutional questions about the legal status of lesbian and gay Americans remain open and could, possibly, be decided in this case.  That’s part of why the excitement, and anxiety, have been running high as the trial approached.

These questions include:  How rigorous should the constitutional analysis be of laws that discriminate against gay people?  Should such laws be presumed invalid like laws that treat people differently based on sex, race, nationality or religion, such that weighty public purposes are required to justify them?  Should sexual orientation discrimination be considered a form of sex or gender discrimination such that more searching review is warranted for that reason?  Do gay people have the same basic right to marry the person they love that straight people have?

Lambda Legal’s 2003 U.S. Supreme Court win against Texas’s criminal sodomy law (in the Lawrence v. Texas case) determined that our national charter is “sexual orientation neutral” with respect to adult couples’ personal privacy, just as it now is gender-, race- and marital status-neutral with respect to voting and property ownership, and all Americans equally enjoy the right to speak, publish and worship.

But before the first opening sentences are spoken about any of these questions, the case already has had enormously positive educational impact nationally because Ted Olson and David Boies have shown that marriage equality is not a partisan issue, but rather one of basic fairness and equality under our Constitution.

Olson in particular, given his preeminent conservative credentials of many decades, encourages many fellow conservatives to rethink why they don’t want to see same-sex couples marrying.  (Or, why they want us to continue “living in sin,” when many of us want to settle down and “make honest women” (and men) of each other, to use the archaic expressions.)

Olson’s role rightly says, for gay and heterosexual alike, it is the same stabilizing, conservative value to encourage mutual commitments, formalized parenting responsibilities, and continuity of family traditions generation-to-generation through civil marriage.

Pundits and prognosticators seemingly can’t help trying to predict the final outcome of this contest.  To me, it’s far too early for that as the first-round bell is only just ringing.  True, the case might go all the way to the U.S. Supreme Court.  It might possibly yield breakthrough rulings on the big questions.

But the case just as likely may be concluded in the 9th U.S. Circuit Court of Appeals with a ruling that Prop 8 is unconstitutional for reasons unique to California and without breaking any new legal ground.  While such a decision would be of great importance to same-sex couples in love, and to their friends and relatives, it would be far less significant legally.  And thus, it would be of less interest to the justices of our nation’s high court who only hear a tiny fraction of cases offered up for review.

Why might this high-drama, first “marriage equality” trial in federal court not produce answers to the looming questions that spark so much discussion?

Because Prop 8 can and should be recognized as fatally defective under any standard of constitutional review, just as the U.S. Supreme Court concluded in Romer v. Evans when assessing Colorado’s antigay constitutional amendment in the mid-90s.  Lambda Legal and our co-counsel tested that measure through a trial that considered many of the core questions that, remarkably, still remain open today.

Ultimately, Justice Anthony Kennedy wrote for a majority of the Court that a state initiative that targets the small minority of lesbian, gay and bisexual citizens for elimination of rights enjoyed by all others, and serves no purpose other than to put that group into a lesser legal and social status, cannot stand.  Prop 8 does precisely that.

The context of California law and the Prop 8 campaign are unique in that the state since 2005 has governed formalized relationships of same-sex and different-sex couples using the same set of legal rules; California’s high court has concluded that the state has no valid reasons for denying same-sex couples the right to marry; but then the voters insisted that heterosexuals again should enjoy an esteemed status and gay people again should be relegated to a lesser one.

At trial, will any of the proponents’ ballot arguments be shown to make sense?  I don’t think so but do expect the evidence will be fascinating.  And if their testimony shows that Prop 8’s champions intended to harm lesbian and gay couples, an important presumption of unconstitutionality would arise.  But whether or not there is evidence of antigay antipathy, the measure cannot survive if it does not further legitimate public purposes.

The government simply cannot allocate benefits and burdens between groups arbitrarily, and especially must never do so along lines of irrational, historically entrenched prejudice.

Judge Walker transformed this case into a more complex, potentially helpful exercise by calling for a trial at which he can examine evidence, hear witnesses and cross examination of each side’s experts, and make factual findings about key questions in the case.  He has said his job is to help the appellate judges who will make the ultimate legal rulings, and of course that is true.

But the trial also promises to be an important teaching moment for the whole country, especially as most of the proceedings will be available on YouTube.  Indeed, the decision to open Internet windows onto this trial means there likely will be fascinated viewers around the globe who never would have had access via cable TV.

This is thrilling, and a little scary, for many of us working to secure equality for LGBT Americans because the discrimination against us most often is based on ignorance and resulting discomfort or worse.  Accurate information is the antidote.

Cross-examination usually separates valid science and reasoning from ginned-up junk and propaganda.  So the public spotlight on Prop 8’s proponents on the one hand, and plaintiffs’ personal stories and contrasting experts on the other, likely will open eyes and encourage rethinking nationwide, even as Judge Walker’s rulings will be just one step in the deciding process.  And yet, although live witness testimony can be riveting and compelling, it also can be unpredictable.  Thus, as case preparation has proceeded, initial questions about case timing and national movement strategy have been supplanted by keen anticipation to hear the testimony and rising hopes for an important success.

And there is cause for optimism.  As we await the joyous images of lesbian and gay couples exchanging vows in the shadow of our Nation’s capitol, increasing numbers agree that the promise of “liberty and justice for all” has to include gay people, too.  And as people think again, more and more agree that equal liberty has to mean the freedom to marry the one you love according to your own traditions, conscience and heart.

As the gavel starts the proceedings Monday morning, gay people across the country will be rooting for plaintiffs’ legal team, as we all passionately want to see Prop 8 recognized as the constitutional offense that it is so the four Perry plaintiffs and the rest of our community again will be free to exercise the right marry in the Golden State.