Perry V Schwarzenegger: Prop 8 in Federal Court

Paul Katami and Kristin Perry, and Sandy Stier and Jeff Zarrillo are suing Arnold Schwarzenegger and the State of California in US District Court over their right to marry. Opening remarks began Monday.

Oh, wait, that wouldn’t be necessary. Rather, Paul Katami and Jeff Zarrillo, and Kristin Perry and Sandy Stier are suing for the right to marry. Odd, the people don’t change, but changing the order changes everything.

The couples are continuing a war on Proposition 8, the "prejudice in marriage act" which created a special class of citizen to be legally prejudiced against. The trial is being billed as the most significant civil rights case of the last 20 years. Some analysts consider the trial to be an important test of the 14^th Amendment; we at the Prospect feel two important freedoms are at stake.

It is also clear that the case is not about the right of same sex couples to marry, it’s about affirming the right of all of us to marry whom we choose.

The case, in US District Court in San Francisco, will not be defended by the Gov, nor by Attorney General Jerry Brown, who long ago scrubbed off the "governor moonbeam" label. Instead, it will be defended by Charles Cooper from Protect Marriage HERE.

The attorneys for the plaintiff are being funded by the American Foundation for Equal Rights.

Clearly, the trail is about the rights the 14^th Amendment made clear, the right to be a person equal to other persons, but what’s at stake here is also nothing less important than freedom of religion. True, there are agnostics and atheists who don’t believe gay and lesbians should marry (actually, everyone allow gays to marry lesbians, just not g-g or l-l), but mostly, it’s a religious thing, and not just a religious thing, but a fundamentalist thing. The "Little Church of Walden" and Unitarian-Universalists have generally accepted gay pair bonding (about two thirds encourage openly gay participants), but it has been divisive among, for example, Episcopalians.

"Fundamentalist" is a counter-intuitive term (there being no "fun" in fun-damental, and so on…) referring to people who firmly believe Jesus (or Jehovah or Allah or whomever) cries when women kiss on the lips. Fundamentalist religions have brought us some great, bloody wars.

Most supporters of Prop 8 of 2008 weren’t fundamentalists, but they were reacting from the most fundamental corner of their religion. Exit polls show that Blacks were most likely to oppose gay marriage. There are several explanations for this, but the most reasonable seems to be that Blacks are more religious that Whites. Religious groups who came out on Prop 8 overwhelmingly supported it. Catholics supported Prop 8; Conservative and Orthodox Jews did, as did "evangelical" Christians. Muslims are not a large voting block, but Mohammed spoke against homosexuality, and it is generally not tolerated.

We have to wonder, why do religious conservatives abhor gay marriage? Sure, sure, the Bible speaks against it here and there, but it speaks much more to infidelity and behaviors in his’n’hers marriages which Christians far and wide manage to ignore. It has to be something else.

Bizarrely, some of the proponents of Proposition 8 actually claimed preventing gays from marriage was a support of their right to freedom of religion, as though it was their freedom of religion that was somehow at risk if guys bump helmets. Indeed, the "yes on Proposition 8" camp was big on talk of freedom: freedom from having their children told in school that all loving couples were equal; freedom from having to accept homosexuals as clients and customers.

In short, the right to be a person under the 14^th Amendment is also at stake. The ban on marriage for a class of people is un-Constitutional on the face of it. Indeed, if you substitute the word "Negro" for the word "Homosexual" you begin to see what’s really at stake: the right to live in a world constrained by the prejudices of some, at the cost of others. Not real American.

Interestingly, part of the court hearings will look at the question, "What is marriage, anyway".

That’s not so easy as it might seem. Marriage has meant very different things across history, and most often it has meant a woman and her children belonged to a man.

Currently, for example, about 60% of the people of rural India have their marriages arranged by family or a professional matchmaker. Marriage is assumed to be for life, but many wives burn to death in mysterious "kitchen fires", which makes months of court time and thousands in attorney fees seem cheap.

Some societies have been, and are, matriarchal, in that marriage is about the males contributing materially to the mother’s offspring, and occasionally donating sperm, and little else.

In many of humankind’s societies, marriage has been about inheritance and bloodlines. Not very long ago in America, people of different races were legally prevented from marrying. Under those same laws, a woman couldn’t own property; her wealth became her husband’s wealth. Over time our treatment of marriage has become more inclusive. Our society has come to view marriage less as a man’s ownership of a woman than as a legal contract which upon termination, supports the division of property, and persons in the form of children.

Children are what anti-marriage equality supporters claim as the heart of the definition of marriage.

There’s a problem with that justification, though. First, many legally married heteros have no children. Should we demand their right to be wed be terminated? Since we are in the business of examining genitalia as a pre-requisite for marriage, should a fertility test also be required? Clearly, children are not all there is to marriage.

Further, many gay couples have children; some get into committed relationships to provide a stabile home for children, just as many heterosexuals do. Indeed, Stier and Perry have four children. It doesn’t matter how a child comes to be, what matters is that he or she is loved and cared for. Children are a great reason for marriage, between people of any genitaliage. But, they aren’t the only reason for marriage.

Marriage is a public declaration of love and commitment, a statement that has to be public to have meaning. Denying people that right is an unreasonable, and unwarranted denial of essential rights.

Few have put that sentiment better than conservative attorney Ted Olson, half of Perry et. al.’s defense team. Better known for snatching victory from the jaws of defeat when George W. Bush took the White House from Al Gore in court, he is "partnering" with his adversary of the time, David Boies, who worked for Gore in the dispute. The partnership gives new meaning to the term "strange bedfellows" and new life to the belief that in America, we can agree or disagree, and still be patriots and friends.

Olson explains his support for marriage equality this way:

Read more from Olson in Newsweek HERE.

What is likely to come from Perry et al v. Schwarzenegger et al?

We think some Federal court will look at the question as narrowly as possible, not affirming gay marriage, but finding Prop. 8 itself to be unconstitutional. It might not be this court, though; it is very possible the issue will go to the Supreme Court. When that happens, one of the last legal prejudices will fall, and marriage will be based on the contents of a person’s heart, and not their undies.

Won’t this be the end of marriage? What if three people want to get married? What if someone wants to marry an ape?

How can it possibly matter to each of us, in our marriages, what two or three or more do in theirs? Don’t we make our own definition, and in the way we live, don’t we illustrate what marriage means to us? At some point, it’s simply nobody’s business what adults do.

And as for marrying an ape, that’s something plenty of women already have experience at, and the law can’t compensate for the fact that love is blind, and none too smart.

Factoid: About a third of all first marriages end in ten years or less. A woman’s likelihood of remarriage is currently about 50%. The likelihood of a second marriage ending in 10 years is about 39%. The statistics for same sex marriages will probably be about the same.

You can read the documents and check up on the trail HERE.