8: The Trial

In California in November 2000, Proposition 22 stating that "only marriage between a man and a woman is valid or recognized in California" was passed by the voters. A case challenging it made its way to the California Supreme Court. In May 2008, the court ruled in a 4-3 decision that this amounted to discrimination against gays and lesbians, and that marriage is a fundamental right under the California Constitution. So the ban against same sex marriage was deemed unconstitutional according to the California Constitution. Same sex marriage was immediately recognized in the state, although the city of San Francisco had been marrying same-sex couples since 2004.

But in November 2008, voters passed another proposition by a narrow margin: Proposition 8 changed the California Constitution itself to recognize only marriage between a man and a woman as valid in the state. And same sex marriage was immediately banned again in California. This time the challenge went to federal court, based on the U.S. Constitution.

  It was filed by the American Federation for Equal Rights on behalf of Kristin Perry and Sandra Steir because the state refused to grant them a marriage licence (later joined by two other plaintiffs similarly denied, Paul Katami and Jeffrey Zarrillo.)   It was a controversial decision, initially opposed by the National Center for Lesbian Rights and the American Civil Liberties Union for tactical reasons. They later supported the plaintiffs case.

  The case was first called Perry v. Schwarzenegger, and named California Governor Arnold Schwarzenegger and Attorney General Jerry Brown, among others, as defendants. When Jerry Brown was elected Governor, the case was changed to Perry v. Brown, even though Gov. Brown agreed with the plaintiffs that marriage discrimination was unconstitutional. When neither Gov. Schwarzenegger nor Gov. Brown would defend Prop 8, it was defended in court by the group that sponsored Prop 8 on the ballot, ProtectMarriage.com.

   The trial that is the subject of “8” began in January 2010 in the United States District Court for the Northern District of California in San Francisco. Chief Judge Vaughn Walker presided. He was appointed to federal court by President H.W. Bush. He had initially been nominated by President Ronald Reagan but Democrats opposed him, partly because they claimed as a private attorney he was anti-gay.

  But the figures who attracted the most media attention were the two main lawyers for the plaintiffs. They were Theodore Olson, who represented George W. Bush in the Supreme Court case Bush v. Gore that decided the 2000 presidential election, and David Boies, who had represented Al Gore in the same case. When the Court ruled in favor of Bush, it essentially made him President, and Olson was appointed Solicitor General.

Though Boies was a high-powered addition to the plaintiff’s legal team, his participation wasn’t surprising. Ted Olson on the other hand made headlines simply by signing on as an advocate. That a major Republican attorney was asserting a constitutional right for same-sex marriage was a news story in itself. That he was joining the attorney who had been on the Democratic side in Bush v. Gore dramatized both the stakes and the non-partisan principles involved. It cast the trial in a completely different light.

But the defendants also had a high-powered attorney: Charles Cooper had also argued cases before the U.S. Supreme Court, and the National Law Journal called him one of the top ten civil litigators in Washington.

  The trial ran from January to July. In August 2010 Judge Walker issued his ruling: Proposition 8 violated the Due Process and Equal Protection clauses of the 14th amendment to the U.S. Constitution. Marriage equality was a right protected by the Constitution.

  In February 2012 the three judge panel of the Ninth Circuit Court of Appeals upheld this finding, 2-1, although on narrower grounds than did Judge Walker. The case was appealed to the U.S. Supreme Court, which has not yet decided whether it will take the appeal this term. But such a decision, one way or the other, could come at any moment.

  Several months after the trial, Judge Walker announced his retirement. He left the federal bench in February 2011. Even during the trial there were rumors that he was gay, and in April 2011 he admitted to a reporter than he had been in a gay relationship for ten years. He is the first federal judge ever to come out as gay. Shortly after his admission, the Family Research Council went to court to overturn his Prop 8 decision because he was not impartial. District Court Judge James Ware heard one day of arguments before denying the motion, writing that "the presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.”