NCRCR Interview Series: Perry v. Schwarzenegger

Welcome to the National Campaign to Restore Civil Rights Interview series, a regular examination of the court cases that shape and affect our lives.

In May 2008, the California Supreme Court held that the state constitution protected marriage equality. In the months that followed, thousands of gays and lesbians couples married, only to be held up once again by the state’s referendum on Proposition 8, an amendment to the state constitution that declared that the state of California will only recognize marriage between a man and a woman. This year, a federal court conducted hearings in a landmark case on the issue of marriage equality. Known as Perry v. Schwarzenegger, the case is a direct challenge to Proposition 8.  To learn more about this case, we spoke with Christopher Stoll, Senior Attorney at the National Center for Lesbian Rights.

PERRY: What is the Perry v. Schwarzenegger case about?

STOLL: Well, Perry v. Schwarzenegger is a challenge to Proposition 8 in California that was filed last year, in 2009. And it basically argues that Proposition 8, which took away the rights of same-sex couples to marry in California, violates the Federal Constitution because it discriminates against lesbian and gay people and deprives them of the right to marry, which the Supreme Court has said over and over again is a fundamental constitutional right, it can’t be taken away from people.

PERRY: The issue of marriage equality was previously raised in California state court. Why was this case brought in federal court?

STOLL: Well, the history of marriage in California goes back to 2008. In 2008, the California Supreme Court decided that prohibiting same-sex couples from marrying violated the Equal protection clause of the state constitution, the California state constitution, and as a result of that ruling there was a period of time in 2008, when same-sex couples were allowed to marry and did get married. That was fairly quickly changed, when Proposition 8 passed in November 2008, and since that time the state constitution has been amended to prohibit same-sex marriages in California. And therefore the situation that we have in California is that the only avenues to challenge that at this point are either at the ballot box or through a federal constitutional lawsuit, which is what the Perry plaintiffs did last year.

PERRY: Discrimination cases are often difficult to prove. What evidence did the plaintiffs provide about the ways in which Proposition 8 was discriminatory?

STOLL: Well, the plaintiffs put on an incredibly robust and awesome presentation of evidence, starting with the testimony of the plaintiffs themselves, their own very moving description of how not being able to get married has impacted their lives and what it would mean to them to be able to get married. So, there is that powerful first person point of view from the plaintiffs. But in addition to that, there was a huge range of testimony from experts in various fields. There were economists testifying about the negative financial implications for same-sex couples as well as for the state of prohibiting same-sex marriage. There was testimony from psychologists about the stigma that not being able to get married imposes on same-sex couples and the negative impact that that has on their lives. And I think most amazingly, most surprisingly was the testimony of the defendant’s experts,  the experts who were put forward to defend Proposition 8, who actually unanimously agreed that allowing same-sex couples to get  married would be for the wellbeing for those couples as well as for the wellbeing of the children they are raising. And by the end of the testimony, David Blankenhorne, who was the defendant’s main expert was actually saying, not only would it be good for same-sex couples, but would it be good for the country in the sense that “We would all be more American”, was his quote, “on the day same-sex marriage was allowed”. 

PERRY: There was also a battle over media coverage in the courtroom in this case. Why was it important that the public have access to what was going on?

STOLL:  Well, so the history of this was that Judge Walker, the trial judge presiding over the Perry trial, had initially decided, as part of the district court pilot program, to make the video recording of the trial available on a rolling basis on You Tube, so that the public could watch every moment of the proceeding. That was something that the defenders of the Proposition 8 did not want to see happen and so they challenged that and actually they took it all the way to the U.S. Supreme Court, which on the eve of trial ruled that cameras, that posting a video would not be allowed in this trial.  So as a result of that, the main way that people have been able to find out about the trial was through new media, which was allowed into the courtroom. So, there were live blogs and twitter feeds from various groups that went on during the trial, as well as now that the trial is over the full transcripts are available on the web. You can go to Equalrightsfoundation. org to read the entire transcript about the trial. And in addition, some very dedicated people put together a fully enactment using volunteer actors of every word of the trial and that can be found on marriagetrial.com (it’s the website for that). So, even though the Supreme Court did not allow people to see the trial itself, which was an amazing and powerful experience, there are those resources that are available now for people who want to see it.

PERRY: What impact do you expect that this case will have in going forward?

STOLL: Well, of course it all depends on what the result is. The trial is fully completed now and we are now waiting for Judge Walker to issue his ruling. Obviously, Proposition 8 is struck down and that if it is upheld on appeal (and it will most certainly be appealed), then, we will have marriage equality restored in California. And depending on the nature of the ruling it could have an impact in other contexts, where the government has tried to discriminate against gays and lesbians in other contexts. But regardless of what the ultimate outcome of the case is, I think that the presentation of evidence that we saw at this trial has shown in a very real way, in a way that we really haven’t seen before, that there really is no rational reason for the government to prohibit same-sex couples from sharing in the same institution of marriage that every other couple gets to share in.

PERRY:  Thank you very much for speaking with us today.

STOLL: Thank you very much!

PERRY: That was Chris Stoll, Senior Attorney at the National Center for Lesbian Rights. 

The National Campaign to Restore Civil Rights is a collection of more than 100 civil rights organizations and individuals who came together to ensure the courts protect and ensure justice, fairness and opportunity for everyone. The Campaign focuses on public education and outreach, finding ways to get the message out about the impact of court rulings on our communities, our opportunities and our rights.