The venerable British journal, The Economist, has a new story on the Proposition 8 trial which is of interest since it provides a European perspective on the legal battle playing out in San Francisco. While not allowing same sex marriages, Britain - like many of the countries of western Europe that do not afford gays full marriage rights - has a domestic partnership law that provides many rights akin to marriage. Thus, in some ways it is probably hard for many European readers to understand the religious extremism that motivates the Prop 8 supporters - although some of those countries are grappling with their own Islamic populations which, like Christianists, want to impose their religious beliefs on all citizens. Here are some highlights from this story:*
THE venue, gay-friendly San Francisco, may at first glance seem predictable for a legal challenge that may lead to the legalisation of gay marriage in America. But nothing else about the trial of Perry v Schwarzenegger, which began on Monday January 11th, fits stereotypes. Pitting both a male and female gay couple (including Kristin Perry) against the state of California (nominally represented by its governor, Arnold Schwarzenegger), it is a federal review of whether Proposition 8, a Californian voter initiative of 2008 that outlawed gay marriage in the state, is constitutional.
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Whatever the outcome, the case is likely to go to appeal and come before the Supreme Court. But first the trial will do two things: it will establish, for the first time, a body of evidence, through expert testimony, that appelate courts can use to evaluate the claims by supporters and opponents of gay marriage. And it will blur the existing partisan divide on the issue between conservatives and liberals.
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Their opponents, largely from the Proposition 8 campaign, also consider themselves conservatives, although they hail from the right's religious and "traditionalist" wings. Fearing that they might appear bigoted, the defence pleaded with the federal Supreme Court to ban plans by the judge, Vaughn Walker, (himself appointed by George Bush senior), to stream the proceedings on YouTube. Doing so might expose witnesses to ridicule or harassment, defence lawyers argued. The Supreme Court banned the video feed, at least temporarily, 20 minutes before the trial opened
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America's constitution, however, does not allow rights to be stripped from its citizens by majority vote. Specifically, the federal Supreme Court ruled in 1996 that any laws motivated by homophobia (or other bigotry) are unconstitutional. The motivation behind the Proposition 8 campaign thus becomes an issue. Its sponsors are among the witnesses, and their television advertisements and press releases may become evidence. Scholars will testify about homophobic discrimination.
They will also be cross-examined about other claims against gay marriage. One concerns the sanctity of tradition. But, as Mr Olson has argued, the fact that something has been custom in the past does not require it to remain that way--otherwise, America would still ban interracial marriage while maintaining segregated schools and debtors' prisons.
Another question is whether or not marriage specifically serves procreation. America does not bar, say, infertile couples or old women from marrying. What, then, about the issue of whether gays can raise children? The two women plaintiffs happen to be bringing up four children in what appears to be an exemplary environment. What about the alleged harm to heterosexual marriages by homosexual ones? Psychologists or other experts would have to prove that straight couples are threatened by gay ones, which appears tough.
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Ultimately, Mr Olson is trying to establish that conservatives should welcome, not fear, gay marriage. They revere marriage as a social institution, so the respect of gays for it should be a cause for celebration, not disgust. And there is the 14th amendment of the constitution, which guarantees Americans equal protection under the law. Mr Olson is reminding conservatives that denying homosexuals access to a basic institution of society would appear to violate equality, and thus the constitution.
THE venue, gay-friendly San Francisco, may at first glance seem predictable for a legal challenge that may lead to the legalisation of gay marriage in America. But nothing else about the trial of Perry v Schwarzenegger, which began on Monday January 11th, fits stereotypes. Pitting both a male and female gay couple (including Kristin Perry) against the state of California (nominally represented by its governor, Arnold Schwarzenegger), it is a federal review of whether Proposition 8, a Californian voter initiative of 2008 that outlawed gay marriage in the state, is constitutional.
*
Whatever the outcome, the case is likely to go to appeal and come before the Supreme Court. But first the trial will do two things: it will establish, for the first time, a body of evidence, through expert testimony, that appelate courts can use to evaluate the claims by supporters and opponents of gay marriage. And it will blur the existing partisan divide on the issue between conservatives and liberals.
*
Their opponents, largely from the Proposition 8 campaign, also consider themselves conservatives, although they hail from the right's religious and "traditionalist" wings. Fearing that they might appear bigoted, the defence pleaded with the federal Supreme Court to ban plans by the judge, Vaughn Walker, (himself appointed by George Bush senior), to stream the proceedings on YouTube. Doing so might expose witnesses to ridicule or harassment, defence lawyers argued. The Supreme Court banned the video feed, at least temporarily, 20 minutes before the trial opened
*
America's constitution, however, does not allow rights to be stripped from its citizens by majority vote. Specifically, the federal Supreme Court ruled in 1996 that any laws motivated by homophobia (or other bigotry) are unconstitutional. The motivation behind the Proposition 8 campaign thus becomes an issue. Its sponsors are among the witnesses, and their television advertisements and press releases may become evidence. Scholars will testify about homophobic discrimination.
They will also be cross-examined about other claims against gay marriage. One concerns the sanctity of tradition. But, as Mr Olson has argued, the fact that something has been custom in the past does not require it to remain that way--otherwise, America would still ban interracial marriage while maintaining segregated schools and debtors' prisons.
Another question is whether or not marriage specifically serves procreation. America does not bar, say, infertile couples or old women from marrying. What, then, about the issue of whether gays can raise children? The two women plaintiffs happen to be bringing up four children in what appears to be an exemplary environment. What about the alleged harm to heterosexual marriages by homosexual ones? Psychologists or other experts would have to prove that straight couples are threatened by gay ones, which appears tough.
*
Ultimately, Mr Olson is trying to establish that conservatives should welcome, not fear, gay marriage. They revere marriage as a social institution, so the respect of gays for it should be a cause for celebration, not disgust. And there is the 14th amendment of the constitution, which guarantees Americans equal protection under the law. Mr Olson is reminding conservatives that denying homosexuals access to a basic institution of society would appear to violate equality, and thus the constitution.
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