Prop 8 Trial – Day 1: First Impressions


Posted on January 12th, 2010 by Katherine Franke

Perry PlaintiffsThe case challenging the constitutionality of Proposition 8 went to trial yesterday in federal court in San Francisco.  The judge, Vaughn Walker, had ordered that the trial be broadcast on YouTube, but moments before the trial began the Supreme Court barred the YouTube broadcast.  The Court’s temporary ban expires tomorrow when they will issue a final order, so we’ll see whether they subsequently allow a larger audience to watch the trial remotely.  This would be a first for a federal court trial in the U.S. Until then, those who cannot attend the trial can follow it with several live bloggers who are in the courtroom.  Here, here and here.

Why is it important that the trial be broadcast?  The trial testimony is, in important respects, orchestrated as a primer on the history of marriage, on the psycho/social aspects of the family, and of the meaning of homophobia – as lived by real people.  Winning the case is certainly the plaintiffs’ primary objective, but they are also trying to change the conversation about marriage – to shed light on why same sex couples want to get married (as Sandy Stier testified yesterday, “so we can hold our heads high with our families”), and why the inability to marry is an affront to their dignity and equality.  Devotees like myself will read the blogs following the trial, but video coverage would reach a larger audience and would give the testimony much broader impact.

Having said that, my first impressions about day 1 of the trial:

I was both astonished and impressed that Judge Walker, on his own, challenged the plaintiffs with the notion that maybe the best solution to the problem here would be to get the State out of the marriage business altogether.  He started off the day by interrupting Ted Olson’s opening statement with the question: 

Walker: “Does that right (to marry) presume that the state has a DUTY to issue marriage licenses?

Walker: Are the plaintiffs not registered domestic partners?

Olson: We will present them and they will tell you.

Walker: What disability do they operate under b/c they can’t marry? Are these differences of a legal nature? Is this a product of state action or of society?

Olson: Domestic partnerships are lesser and not the same as marriage.

Walker: Are domestic partnerships limited to same-sex couples? So where is the discrimination? What if CA got out of the marriage business and simply offered everyone domestic partnerships?

Olson: Yes, that might mean people can enter into marriages without state sanction and then get D/Ped by the state. But the people of California will not get out of the biz of marriage.

(This comes from FireDogLake’s Live Blogging)

This was SUCH a smart question – and the testimony that followed from the four plaintiffs revealed over and over how on point this question was.  It echoed the questioning of California Supreme Court Chief Justice Ronald George in the arguments on the state marriage case.  It’s interesting that straight judges keep pressing this point while the advocates of marriage equality want to avoid it at all cost.

Olson apparently wasn’t prepared for this creative, and in many respects radical, suggestion from the judge and had to have a note passed to him by one of his team informing him that the current domestic partnership law (which grants all of the rights of married people to DP’d people in the state of California) is not available to heterosexual couples under the age of 62.  So the state would have to change the law to make it a viable solution to the marriage exclusion problem.

The Judge came back to the issue when Sandy Stier, one of the plaintiffs, was testifying.  Unlike the other plaintiffs, Stier had been married (to a man) for 12 years prior to coming out and falling in love with Kristin Perry.  So she was able to testify to the difference between “legal marriage” and “domestic partnership”.  Judge Walker had sat quietly during the testimony of the other three plaintiffs, yet when Stier took the stand he asked her “if the state were to get out of the business of using the term marriage, but created another name for it for all people, domestic union or whatever, would not that put you on the same plane as all others?”

Sandy says I believe so. Yes. If we had the same access, I’d feel equal.

Judge: Even though the term marriage is not used?

Sandy: Yes, because if it’s not a legal status sanctioned by the state or government, I’d not have to worry about access to it because no one else would either.”

(from Prop 8 Trial Tracker Live Blogging)

This was an interesting moment in the trial, and surely not one that Bois and Olson relished given their effort to establish that marriage is a sacred and fundamental institution that all people would, no should, want to participate in.  That the only plaintiff who has been in a heterosexual marriage testified that she’d be ok with a non-marital civil status, so long as that’s what everyone else got, undermines the plaintiffs’ lead argument that “Marriage promotes economic, mental, physical strength. It is the building block of our society.”  See Olson’s commentary in Newsweek explaining why he got involved in the case:

Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one’s own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.

As I’ve blogged before, the argument being made in these cases that presupposes a teleology of intimate affiliation, culminating in marriage, and that sets up marriage as the domain of respectability and moral worth is quite troubling.  It signals a deeply conservative commitment to a particular form of human attachment, a traditional notion of family, and a particular form of legibility that both deserves and demands state recognition: look at us, we’re just like you, our relationships (not those other, less committed, more fluid, confusing and queer ones) cannot and will not pose a threat to the institution of marriage and the building blocks of society.

There are all sorts of reasons to be concerned about this argument – I won’t rehearse them here.  But let’s hope the trial shifts to the equality argument soon.  I like that one a lot more.  Day two begins shortly…

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