California's gay-marriage trial is an all-star, high-stakes affair.

The law, lawyers, and the court.
Jan. 8 2010 3:17 PM

For Better or for Worse

California's gay-marriage trial is an all-star, high-stakes affair.

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It's kind of crazy when you stop and think about it: the idea of putting gay marriage on trial. It harks back to Brown v. Board of Education, which turned on showing the harms of school segregation to black kids. This time around, the Perry plaintiffs will start by trying to show that their claim deserves strict scrutiny; in other words, that denying homosexuals the right to marry is the kind of differential treatment for which the state must have much more than simply a rational basis. This part of the trial will be about the history of discrimination against gay people and the history of marriage. Historians Nancy Cott and George Chauncey will testify, and psychologist Gregory Herek will take the stand about the effects on gay people of prejudice. Testifying on this topic for the other side (not the state of California, which refused to defend Prop 8, but the supporters of the ballot measure): author David Blankenhorn and philosopher Daniel Robinson.

For their part, Prop 8's supporters also have to show that the state has an interest (however strong, depending on Judge Vaughn Walker's answer to the strict scrutiny question) in denying gay people the right to marry. The big issue here and before other courts is parenting: Are kids raised by gay parents at a disadvantage? The mainstream consensus is no: The American Medical Association, the American Academy of Pediatrics, and the American Psychiatric Association, along with other groups, have all concluded that good parenting has nothing to do with sexual orientation. But there are dissenters. On this one, Loren Marks, a professor of family, child, and consumer sciences in the College of Agriculture at Louisiana State University, will testify for the Prop 8 camp. The Perry plaintiffs have Cambridge psychologist Michael Lamb on their team. Gay marriage proponents are especially keen on the parenting phase of the trial: They are looking to show that gay people make just as good parents as straight people—but that if they're not allowed to marry, that stigma hurts their kids.

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Also at issue are the economic effects of denying the benefits of marriage to one group of Americans. Economist Lee Badgett will try to make this point stick for the plaintiffs; the other side has economist Douglas Allen. If Prop 8 was prompted by animus against gay people as a group (done with a "depraved heart," in the old-fashioned phrase), then the measure is legally suspect. So lots of Prop 8 supporters are lined up to testify about the strategy and execution of California's "Yes on 8" campaign—they will make the case that they weren't depraved, in their hearts or otherwise. The plaintiffs who were not allowed to marry will also get their say about what that meant for them.

We've been here once before: In 1993 in Hawaii, the state Supreme Court ordered a hearing about gay marriage, and "it was a national teaching moment," says Evan Wolfson, executive director of Freedom to Marry and author of Why Marriage Matters, who tried that case. Now it's a generation later. Seven countries and five states, plus the District of Columbia, have legalized same-sex marriage. Yet the political battle feels at the moment uphill: Recently Maine, New York, and New Jersey dashed the movement's hopes. That's the political backdrop for this round in court. However Perry comes out in the end—and however nerve-wracking that legal process may be—it'll make for some great YouTube.