NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 1

cross-posted from Pam’s House Blend

From the first moment to the closing bell, Judge Walker moved the proceedings forward at a rapid clip. It was a great day for our side, spiced with some intriguing hints from Judge Walker about how he may be viewing some of the key legal issues in the case. Ted Olson and San Francisco Deputy City Attorney Therese Stewart gave eloquent opening statements. Both plaintiff couples presented emotional and moving testimony during their examinations and cross-examinations. And by the end of the day, the plaintiff’s first expert witness (the distinguished American history scholar, Professor Nancy Cott) had made significant headway through her testimony, showing that that marriage has never been universally defined as a union of one man and one woman, and that religion has never had any bearing on the legality of a marriage.

Even as attorneys, clients, and spectators were filling up the courtroom early this morning, the U.S. Supreme Court issued a disappointing but temporary order blocking any video or audio transmission of the trial at least until Wednesday. On Wednesday, the full court will issue a more considered (and permanent) opinion.  Judge Vaughn Walker took the first few minutes of today’s trial to note the Supreme Court’s ruling and express his hope that this case would call attention to the larger issue of the public’s right to access judicial proceedings-and the need to update the meaning of that right in light of new technologies.

According to Judge Walker, the court received more than 138,000 comments on the proposed broadcasting, and all but 32 were in favor of allowing the public to view delayed broadcasts of the trial.  At the request of the plaintiffs’ attorneys (and over the objections of attorneys for the Proponents of Prop 8), the judge agreed to record today’s session so that it can be broadcast if the Supreme Court rules favorably on Wednesday.

Judge Walker took an active role from the very beginning of opening statements, grilling Ted Olson and defense attorney Charles Cooper, who represents the official sponsors of Prop 8, on many details of their arguments for and against Prop 8.  Although it’s highly unusual for a judge to interrupt opening statements during a jury trial, in this case there is no jury.  Judge Walker will decide both the factual questions and the legal issues in the case, so he is free to ask questions whenever he likes.  The judge’s questions to both the lawyers and the witnesses showed that he will not be content to just sit back and listen during this trial.  He clearly has spent a lot of time studying the issues, and we can expect that he will continue to ask lots of tough questions of both sides as the trial progresses.

Several of the judge’s questions today focused on whether the Constitution would allow California to decide that it wants to get out of the marriage business altogether – whether the state could decide to stop issuing marriage licenses and have only domestic partnership for all couples.   It’s risky to read too much into a judge’s questions, especially so early in the trial.  But the judge’s questions may indicate that he is thinking about what will happen if he declares Prop 8 unconstitutional.  Will he have to order the state to issue marriage licenses to all couples, or could he leave it up to the state to decide whether it wants to let same-sex couples marry or just stop issuing marriage licenses to anyone?

The most moving testimony today was presented by the two plaintiff couples. Each of the four plaintiffs testified about their experiences growing up gay or lesbian, how they met and fell in love, how they were affected by the Prop 8 campaign, and why they want to marry.  Both Jeffrey Zarrillo and Paul Katami testified about how painful and insulting it was to be cast as a threat to children by the Yes on 8 campaign.  Paul (the only plaintiff to be cross-examined) held his ground in the face of aggressive questioning by an attorney for the proponents of Prop 8, Brian Raum. Raum repeatedly pushed Paul to “admit” that the campaign’s false and inflammatory claims about children were somehow based on legitimate parental concerns.  But Paul handled the ordeal with grace, consistently refusing to be drawn in by Raum’s simplistic and misleading premises.

Plaintiff Kristin Perry, who has worked in the field of child development and child protection for local and state governments in California for 25 years, testified about raising four children with her life partner Sandra Stier.  Despite her obvious reluctance to expose such an intensely painful and private aspect of her life, Kristin also spoke about the heartbreak of having married in San Francisco in 2004, only to have the California Supreme Court invalidate the marriage.  She also explained that she hesitated to marry again after the California Supreme Court’s 2008 decision because she feared that marriage would be invalidated as well.  Kristin testified about growing up in Bakersfield, constantly being made to feel different and inferior because she was a lesbian. If Prop 8 could be undone, Kristin testified, “kids like me growing up in Bakersfield could never know what that felt like, their entire lives would be on a higher arc, it would improve the entire quality of their life.”

Last up today was the plaintiffs’ first expert witness, Professor Nancy Cott, who teaches American history at Harvard and previously taught at Yale for 26 years.  She specializes in the history of women, gender, the family and marriage, and is the author of the book “Public Vows,” a history of marriage in the United States.

Defense attorney Charles Cooper had claimed in his opening statement that marriage has been “universally” defined, across time and cultures, as the union of one man and one woman. Asked to comment about Cooper’s statement, Professor Cott responded in no uncertain terms that it was historically inaccurate.  She also noted that while religion has played a role in many Americans’ ideas about marriage, our civil laws, not religion, have always defined marriage in the United States.

Discussing the social meaning of marriage in America, Professor Cott testified that although most people think of marriage as a private choice, it also has a public aspect.  For example, slaves in America were unable to get married partly because they were not considered citizens, and therefore had no legal right to give their consent to enter into a marriage.  After emancipation, former slaves flocked to get married, because they now enjoyed this basic civil right for the first time.  As Professor Cott explained, the right to marry is an essential element of being treated as an equal citizen.

Professor Cott’s testimony will continue tomorrow (January 12, 2010).  No doubt each day’s proceedings will be the subject of intense interest.  Of course, only time will tell whether the Perry case will lead to a ruling that restores the equal citizenship of same-sex couples in California.

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