It's been a long time coming, but today gays and lesbians are finally taking the fight for our rights where it belongs, through the federal justice system.
The trial before the U.S. Supreme Court on same-sex marriages in California begins today and the result of Perry v. Schwarzenegger is expected to affect gay marriage legislation nationwide.
We should all watch this trial closely, because it doesn’t just affect gay and lesbian marriage rights in California but gays and lesbians everywhere — not only because Perry v. Schwarzenegger will ask the “ultimate question” of whether we have a federal right to marry but because the case is alleging that Proposition 8 violated the equal-protection clause of the U.S. Constitution. As a result, the decision will have implications for gay Americans in nearly every arena of public life, from housing to parenting to military service.
The high court is set to consider questions as wide-ranging as what it means to be gay and whether it affects one's contribution to society. It's not just marriage rights that are on trial it's being gay itself and where our nation holds us in its eyes. Whatever the decision, good or bad, we should be ready to act accordingly.
Make no mistake: The stakes are high. If Perry v. Schwarzenegger reaches the Supreme Court and anti-Prop 8 attorneys David Boies and Ted Olson are successful, gays and lesbians nationwide would not only have the right to marry — we stand to gain many of the legal rights we’ve have sought for decades.
The military’s “Don't Ask, Don't Tell” policy would be invalidated, as would employment discrimination against gays and lesbians. In the eyes of the law, gay people would be equal to straight people and any legislation that discriminated against them could be challenged and more easily struck down using this precedent.
Boies and Olson will be arguing that such discriminatory laws are illegal because gay Americans constitute a "suspect class" — such as racial minorities, religious groups and foreign-born citizens — who qualify for special protection. Laws that target these groups are immediately "suspect" and have to serve a "compelling state interest." But even if Boies and Olson aren't able to establish a suspect classification, there is a Supreme Court precedent against discriminatory laws whose sole motivation is ill will. (In 1996, the court ruled in Romer v. Evans that a Colorado ban on non-discrimination ordinances were driven solely by anti-gay sentiment and therefore didn’t have a rational basis.)
That's why Boies and Olson also plan to show that Prop. 8 was motivated by prejudice and plan to call to testify the gay couples involved in the suit, experts on the history of sexual discrimination and marriage and the architects of the ballot measure itself.
Olson will make the opening argument, and Boies will examine the first witnesses.
The trail is supposed to be broadcast with a time delay on YouTube, but some media outlets are reporting the Supreme Court has decided to block the footage. Say tuned as the situation develops.