The court challenge to California’s state referendum disallowing same-sex marriage began Monday. I’ve been wanting to write about it and to share links, but my perfectionism has fueled my procrastination. There’s a lot of information, and I want to distill the most relevant, most salient, most persuasive, most informative data for those who cannot absorb, or are not interested in absorbing, as much information as I have.
Let’s do it this way: if you only click one link, watch Rachel Maddow reporting on the trial. She captures the background details that make this case historically significant, and interviews the lawyers working to overturn Proposition 8.
This New Yorker article is my next recommendation. It’s somewhat long, but gives a fairly comprehensive view of the context in which Perry v. Schwarzenegger is coming about, the strategies involved in building the case & choosing the plaintiffs, what the various parties will need to demonstrate in order to win, and the possible end game of a Supreme Court decision, given the assumption that the loser of the trial will appeal to higher courts.
Other noteworthy things about the trial:
- The two main attorneys for the plaintiff (those seeking to overturn the ban on same-sex marriage) are Ted Olson and David Boies, two top lawyers known for being “conservative” and “liberal” respectively. They most famously opposed each other in 2000′s Bush v. Gore. Olson was Solicitor General under G.W. Bush. If you’re curious as to how a renowned “conservative” attorney comes to be supporting gay rights, check out his article (the current cover of Newsweek), The Conservative Case for Gay Marriage. Quote:
Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one’s own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.
Legalizing same-sex marriage would also be a recognition of basic American principles, and would represent the culmination of our nation’s commitment to equal rights. It is, some have said, the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation.
This bedrock American principle of equality is central to the political and legal convictions of Republicans, Democrats, liberals, and conservatives alike.
- As to the trial itself, here is Ted Olson’s opening statement. It’s worth reading as to the scope of where the plaintiff’s arguments are headed.
- One of the earlier witnesses was Professor Nancy Cott, Trumball Professor of American History at Harvard, author of 8 books including Public Vows: A History of Marriage and the Nation. As an expert witness on the history of marriage in the U.S., her perspective was very interesting in demonstrating the evolution of “the institution of marriage”. A sample, from the liveblogging at Prop 8 Trial Tracker:
[In the early 20th century] Marriage fell into the common law view of “coverture” which was the French that meant she was covered by her husband’s life. She lost her individuality, hence becoming Mrs. John Doe. This was the marital bargain to which both spouses consented.
The point is that this was a mutually agreed upon separation of labor. Men were deemed to be providers; women, the weaker sex, were deemed to need protection. Hence there was a division of labor. All socially conventional according to the times.
By the 1970s, with the women’s rights revolution, the Supreme Court stepped in and the states had to stay out of assigning spousal roles according to gender. Now, both spouses are required to support one another, but no longer by specific gender assignment. In other words, the law is now gender neutral.
The more that this has become gender neutral and the more society has evolved, the more same-sex marriage makes sense. Now, the coverture doctrine is dead. The state no longer assigns gender roles in marriage. Couples may choose to take on those roles, but its not up to the state any more.
That’s all for now. I’ll try to do better at excerpting news, quotes and links as I come across them, rather than holding off for an all-in-one that no one will care to read.
This is important. This is big. I feel like I’m watching the moral arc of history swinging toward justice, in the words of MLK. This has the potential to be a groundbreaking case. This could be Brown v. Board of Education; this could be Loving v. Virginia.
May justice prevail.