Bil Browning

Federal Prop 8 trial starts today

Filed By Bil Browning | January 11, 2010 10:30 AM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: California, David Boies, federal court, Perry v Schwarzenegger, Prop 8, Prop. 8, Ted Olson

UPDATE: The Supreme Court has blocked a live broadcast and delayed daily YouTube videos for three days until it has enough time to fully consider the appeal by Prop 8 proponents to ban cameras from the courtroom.

Perry v. Schwarzenegger, the federal court case to declare California's Proposition 8 unconstitutional, starts today in San Francisco. The case was brought by the American Foundation for Equal Rights and will be argued by Ted Olson and David Boies. no_on_prop_8+sign.jpgOlson and Boies famously represented George W. Bush and Vice President Al Gore respectively in the 2000 Supreme Court case that decided the presidency.

According to the suit, Prop. 8:

  • Violates the Due Process Clause by impinging on fundamental liberties.
  • Violates the Equal Protection Clause of the Fourteenth Amendment.
  • Singles out gays and lesbians for a disfavored legal status, thereby creating a category of "second-class citizens."
  • Discriminates on the basis of gender.
  • Discriminates on the basis of sexual orientation.

Olson will give the opening statement followed by testimony from Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo, two couples who want to be married but were denied marriage licenses because of Prop 8.

We have a reporter scheduled to bring us as-it-happens daily coverage of the trial, two other contributors will be attending on various days, and video of the trial will be available on YouTube after the day's proceedings have finished.

More details after the jump.

(Note: Prop 8 proponents have appealed to the US Supreme Court to ban cameras in the courtroom claiming they would be afraid to testify if they are allowed. One plaintiff has dropped out already after the first ruling that allowed cameras. The 11th hour appeal has not been decided yet and the trial could be delayed if the court intervenes.)

From the AFER press release sent out this morning:

Olson and Boies will also point out the "crazy quilt" of separate, unequal and unconstitutional classifications of people that Prop. 8 has compelled the California government to create:

  • Opposite-sex couples who have full marriage rights
  • Same-sex couples who have no marriage rights
  • Same-sex couples married between May and Nov. 2008 whose current marriages are recognized, but who will be unable to remarry if widowed or divorced
  • Same-sex couples married in other states who may petition California for recognition.

The defendants have the burden of demonstrating that Prop. 8 is narrowly drawn to serve a compelling government interest. Olson and Boies will demonstrate at trial, however, that the initiative fails to advance even a single legitimate interest. Tellingly, when asked by Chief Judge Walker at an Oct. 14 hearing to identify any harm to opposite-sex marriage that would result from marriage equality, the defendants' attorney answered "I don't know."

The case against Prop. 8 has proceeded with uncommon speed toward trial. In an order issued after the first hearing in the case, Chief Judge Walker stated: "Given that serious questions are raised in these proceedings ... the court is inclined to proceed directly and expeditiously to the merits of plaintiffs' claims. ... The just, speedy and inexpensive determination of these issues would appear to call for proceeding promptly to trial."

"More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man," the suit states, referring to the Court's decision in Loving v. Virginia.

Chad Griffin, board president of the American Foundation for Equal Rights, noted that near the time when the Supreme Court struck down interracial marriage bans with its 1967 Loving v. Virginia decision, a Gallup poll found that 73 percent of Americans did not approve of interracial marriage.

While Gov. Arnold Schwarzenegger and Attorney General Jerry Brown were named defendants in their official capacities, along with other state and county officials, Prop. 8 is being defended in court by a prominent conservative organization, the Alliance Defense Fund. Gov. Schwarzenegger earlier filed a brief that did not dispute the unconstitutionality of Prop. 8, and called for swift action by the courts. Attorney General Brown, the state's chief law enforcement officer, filed a brief agreeing with the plaintiffs' position that Prop. 8 is unconstitutional.

The ACLU, Lambda Legal, and National Center for Lesbian Rights (NCLR) are participating in the case as amici (friends of the court) in support of the plaintiffs. The City and County of San Francisco, led by City Attorney Dennis Herrera and Chief Deputy City Attorney Therese Stewart, are supporting the plaintiffs' team as co-counsel, with a specific focus on the negative impact Prop. 8 has on government services and budgets. Herrera and Stewart led the legal battle toward the California Supreme Court decision that struck down California's previous same-sex marriage ban.

Julian Bond, Lt. Dan Choi, Margaret Hoover, Dolores Huerta, Cleve Jones, Stuart Milk, David Mixner, Hillary Rosen and Judy Shepard compose the American Foundation for Equal Rights Advisory Board.


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I'm actually kinda excited stressed about this. To the point of saying "screw it, I'll stay home today and watch it".

Which I really can't afford to do today, but will likely do anyway.

We had damn well better win.

On the positive side, the bad guys think we will.

And then the next step is what we will all be dying to hear about.

Probably in two years. I suspect this one will be dragged out and delayed for a long time...

WASHINGTON -- The Supreme Court is blocking a broadcast of the trial on California's same-sex marriage ban, at least for the first few days.

The federal trial is scheduled to begin later Monday in San Francisco. It will consider whether the Proposition 8 gay marriage ban approved by California voters in November 2008 is legal.

The high court on Monday said it will not allow video of the trial to be posted on YouTube.com, even with a delay, until the justices have more time to consider the issue. It said that Monday's order will be in place at least until Wednesday. Opponents of the broadcast say they fear witness testimony might be affected if cameras are present. Justice Stephen Breyer said he would have allowed cameras while the court considers the matter.

Is there a live audio feed for this trial so we can at least listen to the trial online perhaps? If so, please post the link. Similarly, does anyone know the official YouTube account to which the trial will be uploaded? Many thanks folks.