With closing arguments completed, a waiting game now ensues as both sides in Perry v. Schwarzenegger ponder what Judge Walker will do - and whether the plaintiff's in the case will prevail if the case makes its way to the U. S. Supreme Court. As an attorney (albeit not a trial attorney), I believe that Ted Olson and David Boies did a masterful job in presenting the case and arguing the case law which should - assuming personal religious based bigotry is set aside by the Supreme Court justices - mandate that Proposition 8 and all similar anti-gay marriage prohibitions be struck down. Yes, there is much hand wringing going on amongst the supposed leaders of the gay rights movement at organizations like HRC which continue to demonstrate a Neville Chamberlain appeasement mindset - motivated in part by their preference for "access" over action and results. From the Supreme Court perspective, should Proposition 8 be ultimately upheld, each justice will be setting themselves (and their legacies in history) up to be viewed by future generations as bigots akin to the justices in the Dred Scott decision. Given the vanity of some of them - e.g., Antonin Scalia - that potential to viewed as a villain by history can only serve as a sobering influence. This upcoming week's Time Magazine has an article on the waiting game and the legal brinkmanship involved. Here are some highlights:*
[I]t's already clear that the verdict itself will be only a beginning, as all sides shift their focus from testimony to the real task of convincing federal appellate judges, and ultimately the U.S. Supreme Court, to rule their way. What's equally clear now, after nearly three weeks of evidence, is that no matter what happens, the debate over gay marriage will never again be the same.
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By bringing this case, legal powerhouses David Boies and Ted Olson — who most famously opposed each other in the Supreme Court over the 2000 presidential election — have managed to make mainstream the notion of gay marriage in a way that not even years of campaigning by gay-rights groups had been able to. That began to be clear almost immediately after the trial began early this month, as Republican stalwarts, from Cindy McCain to Herbert Hoover's granddaughter, began to speak out in favor of gay marriage. . . .
Gay-rights experts still warn that strategy is highly risky given the frosty reception they fear it will receive at the U.S. Supreme Court.
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[T]he trial, win or lose, has put on the dock a series of basic assumptions about what living in America should be like for millions of its citizens. For decades, governments at every level have created one set of rules for heterosexuals in America, and another set for its gays and lesbians.
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For his part, Boies told TIME that the trial has shown that legal discrimination against gays — in particular rules banning their marriage — starts with simple prejudice, in the form of religion-inspired views about the morality of homosexuality itself. "The Southern Baptist Convention describes homosexuality as an 'abomination,'" Boies told TIME, as he prepared for what would be three days of sometimes blistering cross-examinations as the trial wound down. "The Catholic Church calls homosexual activity 'gravely immoral.' Who is kidding whom?
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Though disputed by the other side, the argument has legal resonance because the U.S. Supreme Court has already ruled, in its landmark 2004 Lawrence v. Texas decision decriminalizing gay sex, that by itself moral opprobrium by the majority, no matter how long-standing, is not enough to justify discriminatory treatment of minorities, including gays and lesbians.
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The defense called just two witnesses, who attempted to show that marriage is fundamental to human society and that it has nearly always been limited to one man and one woman. Boies, who led an often blistering cross-examination, wrung concessions from those witnesses that thrilled gay-marriage supporters, including a statement that allowing gay marriage would help the children already being raised by gay couples who are not allowed to be married.
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[W]hat makes this fight in a San Francisco courtroom so special is that it's not just a fiery classroom debate over theology, but a fight over evidence that will be used by lawyers on appeal to convince higher courts that the prohibitions against gay marriage are illegal under the U.S. Constitution. Pizer, the gay-rights lawyer, says that has been the key to Olson and Boies' strategy throughout the trial. "The presentations are a combination of evidence that relates to the elements of the particular legal tests and also compelling narrative that shows who gay people are, which is important because the pervasive invisibility of most gay people is our biggest challenge.
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[S]ome observers say the early rounds have already gone to gay-marriage supporters, no matter what the courts ultimately say. "Who remembers the outcome of the Scopes trial? Evolution lost the battle, though it has largely carried the day," Spindelman says, noting that Olson's stature as an elder within the Republican Party has made his involvement carry a message of its own.
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The reviewing appellate courts will find themselves bound to give deference to the findings of fact reached by Judge Walker. The fact that Olson and Boise introduced a great deal of factual evidence in contrast to the paucity introduced by the Prop 8 defenders may ultimately be what forces the U. S. Supreme Court's hand. That combined with the fact that some of the Court's prior rulings almost dictate that Prop 8 must fall - and with it other prohibitions imposed by other states like Virginia.
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