In Brief: Cause for Optimism

From January 2010 eNews (Vol. 7, No. 1)

The fight for marriage equality is continuing on several fronts right now as Lambda Legal prepares to go back to court in New Jersey (see story, this issue) and the trial begins in California in the federal case brought by the American Foundation for Equal Rights challenging the constitutionality of Prop 8 and the exclusion of same-sex couples from marriage. Lambda Legal, the National Center for Lesbian Rights (NCLR) and the ACLU have submitted an friend-of-the-court brief in support of the Prop 8 challenge, and our National Marriage Project Director, Jennifer C. Pizer, is analyzing this important trial as the presentation of evidence and testimony begin. An excerpt of her initial analysis is below (first posted on www.lgbtpov.com):

On Monday, January 11, the curtain rose on one of the compelling legal dramas of our time. At the helm of Perry v. Schwarzenegger are former Bush v. Gore courtroom adversaries, Ted Olson and David Boies, standing together against Proposition 8 and the petitioners and strategists who pushed that measure on California voters. Perry was brought on behalf of two same-sex couples who have the burden of proof in the case. But it's fair to say that it’s really Prop 8 and the goals of the initiative's proponents that will be on trial. And a core question is whether the initiative advances any valid public purposes — at all — adequate to justify having changed "equal protection" in California into "equal-if-we-like-you protection."

Many are startled to learn how many big federal constitutional questions about the legal status of lesbian and gay Americans remain open and could, possibly, be decided in this case. That's part of why the excitement, and anxiety, have been running high as the trial approached.

These questions include: How rigorous should the constitutional analysis be of laws that discriminate against gay people? Should such laws be presumed invalid like laws that treat people differently based on sex, race, nationality or religion, such that weighty public purposes are required to justify them? Should sexual orientation discrimination be considered a form of sex or gender discrimination such that more searching review is warranted for that reason? Do gay people have the same basic right to marry the person they love that straight people have?

Lambda Legal's 2003 U.S. Supreme Court win against Texas's criminal sodomy law (in the Lawrence v. Texas case) determined that our national charter is "sexual orientation neutral" with respect to adult couples' personal privacy, just as it now is gender-, race- and marital status-neutral with respect to voting and property ownership, and all Americans equally enjoy the right to speak, publish and worship.

But before the opening sentences were spoken about any of these questions, the case already has had enormously positive educational impact nationally because Ted Olson and David Boies have shown that marriage equality is not a partisan issue, but rather one of basic fairness and equality under our Constitution. Read More