Prop 8 Trial: Everything You Need to Know

By now, you’re probably somewhat familiar with Proposition 8 – the 2008 California ballot initiative that eliminated the right of same sex couples to marry. But have you been keeping up with the status of Perry v. Schwarzenegger, the federal trial challenging Prop 8’s constitutionality? We’ve got the lowdown on the ongoing federal trial right here for you and it has got some juicy details on the anti-gay movement’s tactics.

Prop 8 added a few little words to the California Constitution that have made a huge impact: “Only marriage between a man and a woman is valid or recognized in California”. In May 2008, the California Supreme Court granted same sex couples the right to marry, but when Prop 8 passed in November 2008 by a 52-48 margin, same sex couples were stripped of that right.

What caused voters in one of the nation’s most progressive states to pass this discriminatory proposition? A very carefully orchestrated “Yes on 8” campaign based on fear and outright lies, to put it bluntly.

According to Audrey Bilger , a professor of Women’s Studies at the Claremont McKenna colleges in Southern California, when first researching public opinion on same sex marriage, the Yes on 8 campaign found that overwhelmingly, people who believed that marriage should be between a man and woman would still vote “no” on Prop 8 because they essentially felt that whether or not same sex couples were allowed to marry, their lives would not be affected (which is true).

So, the Yes on 8 campaign had quite a predicament on their hands: even their conservative base wasn’t with them. But, that did not dissuade these feisty fear-mongers! They quickly realized that all they had to do to sway public opinion in their favor was make people believe that if same sex couples were allowed to marry, their lives would be affected.

Let the lies begin. Gay marriage will be taught in schools. Churches will be forced to perform same sex weddings. Polygamy will be legalized. Pedophilia will be rampant. And the next thing you know, you’ll be able to marry your cat. Yes, we heard them all, and oh, how I wish I were joking. To make matters worse, these lies were very well financed (thank you Mormon Church, among others).

Inundated with ads spreading lies and now brainwashed into believing same sex marriage was dangerous to society (despite truly incredible grassroots organizing efforts from a huge coalition of No on 8 folks), what was the average uninformed voter to do? We all know how this turns out…

Luckily, the story continues!

Two same sex couples in California have joined forces with attorneys Ted Olsen and David Boies (who opposed each other in Bush v. Gore in 2000) to challenge the federal constitutionality of Prop 8. The Perry v. Schwarzenegger suit states, “The unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution”. Essentially, the plaintiff is seeking to prove that Prop 8 unfairly discriminates against a particular class of citizens – gays and lesbians. This approach tackles the issue as a matter of constitutional law, with marriage as a basic right, which is being denied.

The trial began on January 11, 2010 and was heard by U.S. District Court Judge Vaughn R. Walker, who has a track record of siding with LGBT rights. There were two weeks of testimony on behalf of the Prop 8 challengers, followed by 2 days (and a mere 2 witnesses) for the defense to make its case (and not well, I might add).

All testimony has been heard at this point but Judge Walker has asked to postpone the closing arguments until Feb. 26. It is widely thought that all decisions will be appealed until the case reaches the U.S. Supreme Court. So for now, we wait….and get the scoop on what went down in that courtroom.

Or at least we try. Complicating matters, the defense specifically asked that cameras not be allowed in the courtroom, in apparent concern that their witnesses would be targeted and harassed for expressing anti-same-sex marriage viewpoints. Judge Walker asked for public comment on the matter and within 3 days he had received more than 138,000 online signatures in favor of allowing the trial to be broadcast on YouTube. He received 32 in opposition. Well, well…we know who’s got the grassroots organizing skillzzz!

That settled the matter and Walker granted permission for video cameras. However, the defense appealed the decision to the U.S. Supreme Court, who (possibly in a preview of what’s to come), side 5-4 with the defense, in opposition to allowing cameras in the courtroom. Apparently, the court only has an obligation to prevent you from harassment and discrimination if you’re not gay.

The real reasons for not allowing cameras are pretty evident. When a campaign is based on fabricated scare tactics and outright lies, you sure don’t want everyone who donated to you and voted for your cause to see your entire platform crumble under legal scrutiny. In his HuffPost op-ed, Charles Karel Bouley writes, “…even they know how wrong, how beyond-the-pale their arguments are…And those that defend Prop 8 have spent millions to make sure people don’t understand what it really, truly is: Religious ideology codified as law”.

The Supreme Court, which will most likely hear the case at the end of the road, has an interest in keeping people in the dark, as well. If the same 5 that sided with the defense on the YouTube issue decide that Prop 8 does not violate the Constitution, they’d sure have a lot to explain if anyone with YouTube (read: everyone) could check out the faulty arguments and sorely lacking evidence they based their decision on. Supreme Court Justices can, afterall, be impeached if they fail to hold up their one and only duty: to protect Constitutional rights.

Much to the chagrin of Prop 8 proponents and perhaps the Supreme Court, we crafty equality-lovers always find a way. We’ve got blogs-a-plenty like the Courage Campaign Prop 8 Trial Tracker, Fire Dog Lake’s coverage, the Box Turtle Bulletin and even a series of Trial Reenactment videos. Awesome!

All this underground coverage pretty much confirms that the defense’s bark is worse than their bite. Their main arguments hinge on the ideas that:

- Procreation is the central purpose of marriage (so presumably, couples who don’t procreate shouldn’t be allowed to get married);

- Anything outside of “traditional marriage” is harmful to the development of children (admit it: children of divorced parents and single mothers are pretty messed up);

- Marriage has “always been this way” (which a ton of historical data will easily disprove);

- Sexual orientation, unlike race or gender, can change (well that is just offensive, not to mention ignorant);

- And gays and lesbians have more political power than the plaintiff would have you believe (you know, with all those elected offices held by gays and lesbians, they’re practically running the show these days);

Correct me if I’m wrong, but had they used some of these arguments in the initial campaign, I think they would have offended some of their supporters, no? How convenient for them that this trial wasn’t recorded.

To make their sad, sad situation worse, not only has each of their arguments been refuted by numerous witnesses for the plaintiff, but their own witnesses can’t even back up these imaginary claims.

To be fair, only two showed up. Shows you just how willing people are to support discrimination when they know their actions will go down in history. For a little amusement read this and this.

Meanwhile the plaintiff presented two weeks’ worth of witnesses and exhibits seeking to demonstrate that Prop 8 was motivated by nothing but discrimination against a particular class of citizens – relegating gays and lesbians to an inferior status. To do so, they have brought in numerous experts and scholars to prove that parental fitness has nothing to do with sexual orientation and that marriage is an evolving institution. They have also focused on revealing an historical pattern of discrimination similar to that which has been perpetrated upon citizens of other protected classes, namely women and African-Americans.

The Mayor of San Diego’s testimony sums up the plaintiff’s strategy in a nutshell and for extra reading on religion’s role in the whole thing read this.

Phew…that’s a lot to take in. But now you are up to speed and can eagerly await the closing arguments on Feb. 26. As previously mentioned, the case will most likely end up at the Supreme Court, in which case the Court will have an opportunity to make history by siding with progress in a time when the nation’s public opinion may not be up to speed, as they did in 1954 with Brown v. Board of Education and in 1967 with Loving v. Virginia. I wouldn’t place any bets on it, but no matter what the outcome is, I implore you to continue to fight for equal protection for all citizens. It’s up to us to make sure that the truth comes out and justice prevails.

This article was featured in our February 2010 monthly Choices eZine. Sign up for our alerts to stay up-to-date with the latest feminist news and to receive the monthly eZine.