EDITOR’S NOTE: The following column is by Andy Pugno, general counsel for ProtectMarriage.com, the group that is fighting to keep Proposition 8 a part of the California Constitution. A trial that begins Monday seeks to overturn Prop 8.
SAN FRANCISCO (BP)–In four days, the people of California go on trial.
Next Monday, Jan. 11th, the trial will begin in the San Francisco courtroom of Judge Vaughn Walker in the federal case of Perry v. Schwarzenegger. The Perry case is about Proposition 8 which restored the traditional definition of marriage in California, to be sure, but it is also about much more.
What is at stake in the Perry case is not just the right of California voters to reaffirm the definition of marriage as only between a man and a woman; a federal court decision overturning Proposition 8 could also ultimately nullify the people’s vote on marriage in 45 states and the federal Defense of Marriage Act passed by Congress in 1996.
What is at stake is whether voters can rationally conclude that traditional marriage is a unique institution that promotes important interests respecting natural childrearing, and that those interests are broader than the personal, private interests of the adults involved. And what is at stake is whether voters may consider their own moral and religious views about marriage — or any other subject — when casting their ballots.
This is not the first time that a ballot initiative has been scrutinized by the courts. Nor is it the first time that the courts have dealt with legal challenges about the definition of marriage. In fact, courts have dealt with same-sex marriage claims all over the country, and judges have legalized it in a few states. But this is the first marriage case in the history of the nation where the thoughts, motivations and personal beliefs of an initiative’s sponsors have been put on trial to search for “improper” intent.
San Francisco is undoubtedly the friendliest venue in the nation for a same-sex marriage lawsuit. This alone gives supporters of traditional marriage pause, realizing that the arguments advanced by our opponents will have a “home court” advantage in terms of local receptivity. Proposition 8 was opposed in San Francisco by over 75 percent of voters, the largest percentage of “no” votes cast in any county in the state.
More concerning than the location of the trial, however, have been some of the pre-trial rulings issued thus far by Judge Walker.
In all previous legal challenges to state marriage laws, the courts have decided the issues without a full-blown “trial” involving witnesses, cross-examination, etc. Instead, the issues have always been decided on a record of legislative history, scholarly articles, social studies and expert reports. For certain, the individual backers of a ballot initiative have never been put on the stand to have their personal beliefs and motivations questioned. At most, the courts look for legislative intent only in the Official Voter Information Pamphlet published by the state of California. Other things like TV advertisements, press releases or even things said publicly by campaign workers are not considered relevant evidence of what the voters intended.
But Judge Walker has ruled not only that everything Prop 8’s backers communicated publicly is relevant evidence, but that even things not communicated to the public are also relevant. Thus, he ordered our campaign to disclose to our opponents all of our private, internal communications about messages considered for use but never actually delivered to the electorate, including drafts of materials that were never used. And, he ordered us to turn over copies of all our internal records and e-mails relating to the formulation of campaign strategy and messages.
Judge Walker has also ruled that the trial will delve into the personal beliefs of the Prop 8’s sponsors regarding marriage and sexuality. What relevance, you might reasonably ask yourself, could that possibly have to whether Proposition 8 is constitutional? That is an excellent question.
According to Judge Walker’s rulings, our opponents could try to use these things to show that Proposition 8 passed due to animosity or bigotry toward homosexuals. Or that Prop 8 was adopted because of “improper” religious views. Or that prohibiting gay marriage is akin to racial discrimination, in which case the traditional marriage laws may be presumptively invalid.
This is precisely what the plaintiffs in the Perry case are claiming. In fact, the plaintiff’s attorney, David Boies, told The Wall Street Journal that passing Proposition 8 to restore traditional marriage “is the residue of centuries of figurative and literal gay bashing.”
Thankfully, some of Judge Walker’s rulings have already been overturned by the Ninth Circuit Court of Appeals. But as the trial begins, there is no question that virtually every ruling so far has put traditional marriage at an increasing disadvantage. The consistency with which the judge has sided with our opponents is anything but comforting to supporters of traditional marriage.
But one thing is for certain: No matter how Judge Walker eventually rules in the Perry trial, this legal saga is destined for appeals and a final decision in the U.S. Supreme Court. Ultimately, it will not be Judge Walker’s views on marriage that decide this case, but rather those of the nine justices on the highest court in the nation.
I have no doubt that the final outcome of the Perry case will conclusively determine the future of marriage for the entire United States. Our legal team is working as hard as possible to win the trial in the district court, and is prepared to fight with every ounce of energy all the way to the US Supreme Court.
Andy Pugno is general counsel for ProtectMarriage.com, the primary organization that worked to pass Proposition 8 in California.