A road map to Perry v. Schwarzenegger, the same-sex marriage case.

The law, lawyers, and the court.
Jan. 29 2010 10:45 AM

Who Will Win the Gay Marriage Trial?

A road map to the routes to victory for both sides.

Kristin Perry (left) and Sandra Stier. Click image to expand.
Kristin Perry, left, and Sandra Stier are plaintiffs in the gay marriage case

With the testimony in the Proposition 8 trial now closed, it's time to consider: Which side will win? Will Judge Vaughn Walker find that California's limitation of marriage to one man, one woman violates the U.S. Constitution? Legal doctrine affords both sides avenues for victory. It also generates landmines (arguments that could create controversy for Judge Walker) and lavender herrings (silly diversions that he would be wise to avoid).

If Judge Walker finds that Proposition 8 reflected nothing but prejudice or animus against lesbian and gay people, he will rule it unconstitutional. In the 1996 case Romer v. Evans, the Supreme Court held that a voter initiative targeting gay people because of "animus" violates the Equal Protection Clause of the 14th Amendment, because prejudice against a social group cannot be a "rational basis" for exclusionary laws.

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If Walker doesn't find that Proposition 8 was motivated by animus, he could uphold the California initiative based on one of several "rational" bases put forward by lawyer Charles Cooper and his team for the law's defenders. For example, they maintain that gay marriage would be bad for children, because it would legitimize the practice of raising children in lesbian or gay households. But the children-will-be-harmed argument is a lavender herring, not only speculative but suspiciously close to old stereotypes about lesbian and gay people as anti-family and predatory toward children. There is no reliable social science evidence that lesbian and gay couples do a bad job raising children, and at the trial Cambridge professor Michael Lamb surveyed the extensive evidence suggesting that those couples do a good job. Also, wouldn't children being raised by unmarried couples benefit if their mothers or fathers could cement their union in marriage? This is a defense Judge Walker should eschew.

Cooper's team also argues that overturning Proposition 8 would undermine democracy by nullifying the will of the people. Voters adopted the state constitutional amendment in November 2008 specifically to overturn a decision by the California Supreme Court legalizing gay marriage the previous June. But the U.S. Constitution is supposed to trump current opinion sometimes, as when the Supreme Court struck down state laws barring different-race marriage in Loving v. Virginia in 1967. Most Americans did not agree with that result. Was Loving wrong? This is a legal landmine, an argument that could blow up in the judge's face if he gets near it. Judge Walker will not go there.

Another argument made by Proposition 8's defenders is that recognition of same-sex marriages would undermine civil marriage as an institution. Yet civil marriage has done fine in marriage-equality jurisdictions like Massachusetts and Canada. Marriage rates declined in the Netherlands after that state recognized same-sex marriages 2001, but the decline began a generation earlier. Gay marriage is not the variable driving the change. In some European countries, such as Denmark, civil marriage rates actually perked up (and divorce rates declined) after the state recognized lesbian and gay unions.

Ultimately, the defense of Proposition 8 rests less on evidence of tangible harm to anyone or anything, and more on the expressive function of law. Civil marriage has traditionally been one man, one woman. While other features of the institution have changed, this one has not. Shouldn't the citizenry have the right to retain this stable feature, which symbolically ties the state institution to procreation and child-rearing? The defenders maintain that this is a rational basis for the exclusion of gay couples from marriage. They caution the judge that if he finds this ballot initiative rested on nothing more than prejudice, the popular backlash will undermine the legitimacy of the federal courts.

The defenders might win with that argument—but only if Judge Walker also finds that Proposition 8's discrimination is not subject to strictscrutiny.  If a law denies some Americans a fundamental right(like voting) or treats a minority differently based upon a suspect classification(like race), federal judges demand more than a rational basis for that law. The state must demonstrate that such discriminations are actually necessary for the success of important public policies—in the legal lingo, the discrimination must be narrowly tailored to serve a compelling state interest.

In Loving, the Supreme Court foundthat the state could not deny people of different races the fundamental right to civil marriage. Ted Olson and David Boies, who represent the plaintiffs in the gay marriage trial, argue that the fundamental right recognized in Loving ought to be extended to same-sex couples. The Supreme Court has applied Loving to protect the marriage rights of deadbeat dads and convicted criminals. So surely committed lesbian and gay couples should enjoy it as well. Because none of the defenders' symbolic or speculative justifications for the discrimination in Proposition 8 meets the evidentiary standards of strict scrutiny, the law violates the Equal Protection Clause.

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