Separate is not equal

Will the court decide that marriage equality is a fundamental right?

It’s a shame the U.S. Supreme Court ruled against recording proceedings in Perry v. Schwarzenegger, the constitutional federal-court challenge to Proposition 8, the anti-gay-marriage initiative that California voters narrowly approved in November 2008. So far the trial has been quite a show—and the case could end up having historic consequences, on the lines of Brown v. Board of Education, the 1954 case that invalidated the “separate but equal” doctrine behind school segregation.

It’s got plenty of drama, above and beyond the fact that it’s likely to go all the way to the Supreme Court. Besides the wrenching testimony of many people about the pain and indignity they feel being treated as second-class citizens, it’s also got an unlikely but powerhouse partnership leading the charge on behalf of gay rights: Theodore Olson and David Boies. In 2000 they were adversaries in Bush v. Gore, the historic case that gave George W. Bush the presidency.

They’ve got an uphill fight, if only because courts are inherently reluctant to overturn the results of the democratic process. And California is just one of 30 states whose voters have outlawed same-sex marriage.

On the other hand, the question the case asks—whether marriage is valid only between a man and a woman—has broad constitutional implications, much as Brown did. If the courts buy Olson and Boies’ arguments, it could upend all those state laws prohibiting same-sex marriage.

And the case has a healthy dollop of irony, too. Proposition 8’s backers campaigned on the argument that unelected judges should not be allowed to substitute their values for those of the electorate. And yet it was the Prop 8 supporters who didn’t want the court proceedings to be recorded for later viewing on YouTube, as if actually seeing elitist judges in action—or, in this case, a single presiding judge, Vaughn Walker—was too much to take.

The Prop 8 team’s arguments have seemed weak to me. The main one is that “the central and defining purpose of marriage” is procreation and child rearing. But that ignores couples who are childless, voluntarily or not, and the high rate of divorce leading to single parents. It also ignores all the other reasons people marry—for companionship and for business purposes, among others.

As Judge Walker said to the Prop 8 team’s lead attorney, Charles J. Cooper, during a preliminary hearing in October, “Well, the last marriage that I performed, Mr. Cooper, involved a groom who was 95 and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?”

“No, you honor, you weren’t. Of course you didn’t,” Cooper replied.

“And I might say it was a very happy relationship.”

“I rejoice to hear that,” Cooper said.

Those opposed to same-sex marriage often argue that allowing it would hurt heterosexual marriage. As Margaret Talbot reports in The New Yorker, Judge Walker repeatedly asked Cooper how it did so. Ultimately, Cooper had no answer for him.

“Your honor, my answer is: I don’t know. I don’t know.”