Perry v. Schwarzenegger, the trial challenging the constitutionality of California's Proposition 8--which could result in legalization of gay marriage throughout the country if successful--wraps up its first week of testimony today (see this for background reading). And while the case is technically being argued before Judge Walker in a San Francisco courtroom, both sides expect that the Supreme Court will be the final arbiter, no matter who wins this round. Consequently, the SCOTUS' tangential involvement in the case has been heavily scrutinized. And in a twist online organizers of all stripes should be proud of, netroots activism has already had a profound influence on one SCOTUS decision regarding this case.
As Adam B wrote on Wednesday, the SCOTUS ruled that the trial would not be televised. The conservative 5-4 majority's opinion was based substantially on two claims: that the comment period for soliciting input was not adequate, and that the applicants had demonstrated that irreparable harm would ensue for the applicants should the trial be broadcast. Writing for the minority, Justice Breyer said that there would be no irreparable harm because all witnesses were already publicly affiliated with their respective sides--and, in a moment that should make netroots organizers everywhere proud, had this to say about the "inadequate" comment period:
And the entire public was invited by the District Court to submit comments after the rule change was announced, right up to the eve of trial. As I said, the court received 138,574 comments during that time. How much more "opportunity for comment" does the Court believe necessary....
Of those 138,574 comments, guess how many were submitted by the online activists at the Courage Campaign and Credo Mobile? 138,248. This might be the first time a netroots-led signature-gathering drive has turned up in a SCOTUS opinion.
Another reason to thank our lucky stars for online activists? Because of the tireless liveblogging work of the good folks at Courage Campaign's Prop 8 Trial Tracker as well as FireDogLake's livebloggers, those of us who aren't in the courtroom really aren't missing a beat.
Keep in mind that the SCOTUS ruling just discussed has nothing to do with the merits of the case itself, and only has to do with cameras in the courtroom--so no conclusions about how the justices might rule on marriage equality itself should be inferred from how they ruled in this specific instance. But the SCOTUS is already playing a very large factor in how this case is being argued in District Court.
Day 1 and Day 2 discussed the central argument: does banning gay marriage violate the guarantee of equal protection under the 14th amendment? But the plaintiff's witnesses since then have focused on issues that might seem tangential--subjects like the history of the persecution of the LGBT community, or the motivations of the proponents of Proposition 8, such as this particularly odious video of the bigoted and homophobic rationale of one of Proposition 8's key backers. And the defense is especially incensed that this evidence was admitted. From a press release by key defense sponsor ProtectMarriage:
We continue to be pleased with the efforts of our attorneys. However, it is regrettable that Judge Walker has allowed the trial to proceed on the basis he has. Never before has a judge allowed the private views of an initiative’s sponsors and consultants to be used to determine what voters intended when they adopted the measure. Our arguments on this critical element of the litigation are likely to be of much greater interest to a higher court than has been shown by this San Francisco courtroom.
(Notice, of course, the combination in this paragraph of two popular social conservative memes: the "activist judge" meme and the "San Francisco is sinful" meme. Reading these press releases is like playing right-wing bingo.)
Of course, Judge Walker might have chosen to admit this tangential evidence because he knows what matters when this moves to the SCOTUS. The defense has been trying to prove that there is a compelling state interest behind Prop 8; the plaintiff has been trying to prove that the state interests are non-existent and that the sole motivation is animus against the LGBT Community. Paul Hogarth at Courage Campaign's Trial Tracker explains why this matters:
Again, to prevail I believe the plaintiffs will have to link the reasons cited for passing Prop 8 — “tradition” or “protecting children” — is simply a subterfuge for the real beliefs that homosexuality is “wrong” and “sinful.”
UPDATE: Justice Kennedy’s opinion in Romer v. Evans: [The Colorado anti-gay amendment's] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests. Unfortunately, the Supreme Court is likely to interpret this as saying that just because you prove animus factored into Prop 8 does not make it unconstitutional. You also need to prove that there were no other reasons besides animus. In other words, we would need to link the other possible reasons — tradition, protecting children, parental rights — back to an irrational basis.
Justice Kennedy wrote the ruling that overturned a pernicious anti-gay measure in Colorado on those grounds. When this case is appealed to the SCOTUS, Justice Kennedy is expected to be the swing vote. It seems that the plaintiff is trying to prove that Perry and Romer are identical cases.
Forget trying to persuade a country--both sides here might be just trying to persuade one of nine on the highest court. This case just got more interesting.
For the latest updates: