Perry v. Schwarzenegger,”The Proposition 8 Trial”: A Primer

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The well-publicized trial on the constitutionality of California’s Proposition 8 banning same-sex marriage begins today before Judge Vaughn Walker in the United States District Court for the Northern District of California (court website for case  here). Recall that the California Supreme Court upheld Proposition 8 as we previously discussed  here. Publicity of this federal trial has itself been an issue: SCOTUS has  just stayed the order that the court’s trial proceedings were to be made available on  You Tube.

Update: Live blogging of proceedings from anti-Prop 8 perspective  here.

Although there are  some statements in the press that this is the first same-sex marriage trial, that’s not exactly true.   After the Hawaii Supreme Court decision in  Baehr v. Lewin, state court judge Kevin Chang held a trial on the issue of whether the state had compelling reasons to prohibit same-sex marriage.   In an extensive  Order in late 1996, Judge Chang held that the state failed to satisfy its burden of showing compelling interests and that the law was therefore unconstitutional.   This order was later stayed because of developments in Hawaii.

But certainly this is the first federal trial.   Interestingly, counsel for plaintiffs in the case are outside the usual LGBT movement, but are Theodore Olsen and David Boies, the attorneys who represented Bush and Gore respectively in  Bush v. Gore. Also interestingly, the state of California is not defending the lawsuit (Governor Schwarzenegger has taken no position and Attorney General Jerry Brown supports the plaintiffs).     California’s position is therefore being argued by intervenors including protectmarriage.com, who the trial judge described as the”proponents”of Proposition 8.   A  New Yorker article published today discusses the attorneys, the parties, and some of the arguments.

The best description of the issues to be determined at trial is in Judge Vaughn Walker’s from-the-bench order denying the motion for summary judgment filed by the proponents of Proposition 8 (transcript available  here; order at pages 72- 91).    [post continues here at Constitutional Law Profs Blog]

-Ruthann Robson

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