In California a federal judge has just concluded an unusual trial. The plaintiffs in the case of Perry v. Schwarzenegger seek to overturn California’s 2008 referendum banning same-sex marriage on the grounds that the ban violates the Equal Protection Clause of the 14th Amendment. The case has gained some unusual attention from the involvement of Ted Olson, a lion of the conservative legal movement. Olson was Solicitor General under George W. Bush and the lead attorney in Bush v. Gore. He is longtime member of the Federalist Society and a vociferous critic of judicial activism. What’s remarkable about his involvement is that he has volunteered to take the plaintiffs’ case and is cooperating on it with his old opponent in Bush v. Gore, David Boies.
But there’s another twist that makes this case really interesting. A constitutional challenge of this type usually receives a paper trial. There is little testimony and most of that is submitted in written depositions. The lawyers file their motions and make their oral arguments. The judge evaluates their positions and renders a judgment which is promptly referred up to an appellate court so that the more interesting work can begin.
Judge Vaughn Walker, a Reagan appointee, has taken a different approach.  In a page right out of Inherit the Wind, he has held a full courtroom trial to explore all the aspects of this case. The Judge’s efforts to have the trial televised were thwarted, but the transcripts of the trial were re-enacted each night and posted to YouTube.  This is not a dry recitation of constitutional theory. Witnesses have been giving testimony on matters like:
- Is homosexuality a choice?
- What value does marriage have beyond procreation?
- How exactly would gay marriage damage heterosexuals?
- Does same-sex marriage harm children?
- Was California’s gay marriage ban motivated by hostility toward gays as a group?
The final legal outcome of the case is almost certain to be decided by the US Supreme Court, unless of course California reverses its ban prior to that point. That is a real possibility. But the trial itself is likely to hold a social significance independent of the final judgment.
There are many Americans like myself who are torn over the subject of gay marriage. Many of us are troubled by the injustice of gay couples being unable to obtain the kind of basic legal protections available to married couples.  At the same time we are bothered by the idea of government re-inventing an entire social institution with the stroke of a Judge’s pen.
The trial in Perry v. Schwarzenegger offers a unique window into the myths and realities of gay marriage. As details from the trial are distilled out into the public, it offers an opportunity for people to assess the question in a way that goes beyond emotion and bias. Perhaps out of this trial and its long, upcoming appeal, the conservative movement in particular can develop a position on gay marriage that rises above the gay-baiting hysteria and honestly reflects our core values.
I appreciate your article. Perry v Schwarzenegger does represent a more logical, and rational approach to the myths of homosexuals. In fact a few points brought up:
- Is homosexuality a choice? This has been debated by every angle you can imagine from biological, to genes, environmental etc. I can say from my own research of hundreds of small samples that no one is the same. It could be from environmental issues, daddy issues, biology. I can tell you form my own research Kinsey was right. I have not met a straight shooter (no pun intended). And I can say from some of my own research examples, I had people tell me they knew in kindergarten. That they had thoughts of love for another of the same sex. Well before one could say definitively it is a choice. So I am of the stance all of the above. Maybe this si why it is so elusive.
- What value does marriage have beyond procreation? Well lets ask this backwards. What was the value of marriage before sex, love and children where added to it in the last 200 years.
- How exactly would gay marriage damage heterosexuals? It would not. In fact there is not a single shred of proof that is not Dogmatic.
- Does same-sex marriage harm children? Unhealthy lifestyles harm children. Incest, domestic violence etc. Issues that do not arise exclusively in unconventional families. But rather from families isolation etc.
- Was California’s gay marriage ban motivated by hostility toward gays as a group? Well this is a pretty much given. Largely in the involvement of the nations churches (ie Mormons). Hostility comes in all forms, even ones working under the pretenses of under God as seen in history.
It is laughable that the left is arguing equal protection under the law. The progressives who have supported separate and unequal in the past now want to go against all of the affirmative action, quotas, set asides, and hate crimes laws that they have been proposing for 30 years.
If the progressive Republicans really support equal protection, then they should come out and say that they are for equal protection for all.
However, I dbout if that is what progressive Republicans care about at all. What is really important is doing what the cool kids over in the progressive movement are doing and supporting what the progressives tell them to support.
The progressive Republicans have failed on gay marriage and failed on gays in the militants. As long as progressives Republicans keep supporting every position that progressives tell them to support, the the progressive Republicans will remain irrelevant and a joke in politics.