Perry v. Schwarzenegger commenced yesterday in the United States District Court for the Northern District of California, and you should pay attention to it, fellas, because either way it goes, it is sure to have a huge effect on your life for many years to come.
In a nutshell: The case seeks to invalidate Prop 8 out in California on these grounds:
- Violates the Equal Protection Clause of the Fourteenth Amendment. ["no state shall . . . deny to any person within its jurisdiction the equal protection of the laws".]
- Violates the Due Process Clause by impinging on fundamental liberties. ["No person shall be . . . deprived of life, liberty, or property, without due process of law"]
- 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.
Theodore Olson and David Boies, the attorneys for the two California couples who are plaintiffs in this case, are determined to take the case all the way to the U. S. Supreme Court if necessary. Many gay-rights groups have criticized the case as being inopportune: a victory would, of course, require California and perhaps other states to extend marriage to same-sex couples; but a loss in the Supreme Court would set us back a long, long time, as did Bowers v. Hardwick in 1986, when the Supremes ruled 5-4 that the Constitution did not confer "a fundamental right upon homosexuals to engage in sodomy."Thus, sodomy laws in thirteen states remained in effect in 24 states at that time; not until seventeen years later, in 2003, when the Court reversed itself in Lawrence v. Texas, were sodomy laws invalidated throughout the country; 13 states still had sodomy laws at that time. In fact, the law is still part of Texas statutes, though now unenforceable; the Texas Legislature has never seen fit to remove the law, which is still on the books here.
Thus, many who are well-versed in the legal aspects of civil rights and same-sex marriage fear that an unfavorable Supreme Court decision could set our cause back for many years to come. It is a truism that the Supremes rarely get too far ahead of public opinion or state laws; at the time of the famous Loving v. Virginia decision in 1967, striking down bans on interracial marriage, only about 15 states still prohibited it.
So we'll see how this all shakes out; keep your fingers crossed, fellas, it's bound to be a momentous decision either way it goes, first in the district court, then at the Supreme Court.
On a personal note: your Head Trucker was not as politically aware then as he is now, but I remember vividly the news of the Bowers decision back in June of 1986. At the time I was dating a really hot guy from Birmingham, and we were having a fun vacation in Atlanta, going to the theater and fancy restaurants. We organized our own little two-man protest against the decision by committing sodomy frequently and vocally in our room on the 17th floor of the Marriott downtown, night and day.
Didn't have any effect on the Court's decision. But hell, nobody ever had a better time protesting than we did that weekend. I tell you what.
If you want to read it - and it is very worthwhile reading - here is Ted Olson's opening argument in the case:
This case is about marriage and equality. Plaintiffs are being denied both the right to marry, and the right to equality under the law.
The Supreme Court of the United States has repeatedly described the right to marriage as “one of the vital personal rights essential to the orderly pursuit of happiness by free men;” a “basic civil right;” a component of the constitutional rights to liberty, privacy, association, and intimate choice; an expression of emotional support and public commitment; the exercise of spiritual unity; and a fulfillment of one’s self.
In short, in the words of the highest court in the land, marriage is “the most important relation in life,” and “of fundamental importance for all individuals.”
As the witnesses in this case will elaborate, marriage is central to life in America. It promotes mental, physical and emotional health and the economic strength and stability of those who enter into a marital union. It is the building block of family, neighborhood and community. The California Supreme Court has declared that the right to marry is of “central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society.”
Proposition 8 ended the dream of marriage, the most important relation in life, for the plaintiffs and hundreds of thousands of Californians.
Continued after the jump . . .
