Right now, and for the next few weeks, in a federal courtroom in San Francisco, a judge presiding over a nonjury trial is deciding whether or not states have the right, under the federal constitution, to deny same-sex couples the right to marry. At issue is whether or not California's November 2008 passage of Proposition 8, which amended the state's constitution to define marriage as the union of a man and a woman, was a violation of the federal constitution's 14th Amendment rights to equal protection under the law.
This case is historic, because it is the first federal case to question the constitutionality of same-sex marriage bans. It is certain to lead, via the appeal of its outcome, to the justices of the Supreme Court being forced to make a landmark decision on whether states have the right under the federal constitution to deny same-sex couples the right to marry.
Arguing on behalf of the plaintiffs (who are two couples: one lesbian, one gay) that Prop. 8 amounts to unconstitutional discrimination is lawyer Theodore Olson (a litigator best known for representing George W. Bush in the Supreme Court case that decided the 2000 election). His argument is, and throughout the trial will probably remain, pretty straightforward: that Prop. 8 is in violation of the 14th amendment's guarantee of equal protection under the law.
"It is," Olson said in court yesterday, "the courts' responsibility to protect the rights of minorities."
When I saw this trial coming, I imagined that I was the lawyer faced with defending the constituionality of Prop. 8. I tried to think of the foundational arguments upon which I would build my case. Outside of a courtroom, I would always be able to point to the Bible as the salient argument against gay marriage. But in a federal courtroom, I wouldn't have that option. You can't make federal laws based on Biblical injunctions. In this war I'd have no access whatsoever to my most powerful weapon.
After some reflection, I saw that for this case there would be only two doors open to me. One was marked Tradition. The other was marked Children.
I would have no choice. My argument would have to be that federally mandating gay marriage legal would fly in the face of our hallowed societal traditions, and would threaten the well-being of children. That would be all I could say.
And so I knew that going into the courtroom I would sigh a secret, heavy sigh. Because I would know how certain it was that I was going to lose this case.
Thus far in the trial (which started yesterday) defense's attorney Charles Cooper, a prominent lawyer for the Prop. 8 campaign committee Protect Marriage, has taken the only path available to him. He has argued that legalizing gay marriage would threaten societal tradition, and the well-being of children.
"The limitation of marriage to a man and woman has been something that has been universal," he argued. He said Prop. 8 expressed "a special regard for this venerable institution [of marriage]." He said extending marriage to same-sex couples would undermine its status as a "pro-child institution," and redefine it as a private relationship between two adults who love each other.
"It is the purpose of marriage---the central purpose of marriage---to ensure, or at least encourage and to promote that when life is brought into being, it is by parents who are married, and who take the responsibility of raising that child together," he said.
The wall into which that argument is destined to crash is that marriage is already defined as a private relationship between two adults who love each other. That's what marriage is. And, like it or not, gay people are already raising children. Those two giant cats are already long out of the bag. The court can't affirm that married people who don't have children aren't really married, or are in any way less married than couples who do have children. And gay couples are already together sharing the responsibilities of raising children---as are foster parents, step-parents, adoptive parents, grandparents, and all kinds of other partnered adults whose right to raise children is already fully protected by law.
The traditional nuclear family is a wonderful thing. But it's not even the norm anymore.
It's inevitable that gay marriage will become legal in America, the same way it was inevitable that slavery would be outlawed, that women would win the vote, that interracial marriage would be deemed perfectly legal, that gay rights would be protected, that discrimination based on religion, race, gender, or sexual orientation would become illegal anywhere and everywhere in America.
The question of the legalization of gay marriage has finally moved into the federal courts. That means it's destined to end up before the Supreme Court. There it'll smack right into the 14th Amendment. The first section of that amendment is perfectly clear: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property ... nor deny to any person within its jurisdiction the equal protection of the laws." When the defense argues that, due to its protected civil rights, homosexuals already enjoy "separate but equal" status, the court will take as its precedent the famous Brown v. Board of Education case of 1954, and thereby determine that the status of gays, while certainly separate, isn't, in practice, equal.
"I've been in love with a woman for 10 years, and I don't have access to a word for it," lead plaintiff, 45-year-old Kristin Perry of Berkeley, told the packed San Francisco courtroom. "In a store, people want to know if [my partner and me] are sisters or cousins or friends, and I have to decide every day if I want to come out wherever we go, if we are going to risk that negative reaction."
"I'm proud to be gay. ... I love Jeff more than myself," testified Paul Katami, 37, one of the other three plaintiffs in the case. "Being gay doesn't make me any less of an American." The passage of Prop. 8, said Katami, affirmed that "being gay means I'm unequal."
The plaintiffs opened with these kinds of emotional pleas, as opposed to anything of a more technically legal nature, because they know that the key to the court determining that their societal status is not equal to that of heterosexuals lies in the emotional stress they suffer from being unable to legally marry.
I think we can stop wondering whether or not the Supreme Court will rule, once and for all, that gay marriage is legal. It will. What we should be wondering now is how we're going to react to this new, legally sanctioned paradigm of marriage. When people say they love America, what they are by definition saying is that they love and believe in the American Constitution. But for a lot of Americans---for perhaps the majority of us---that love has never been tested as severely as it's about to be.
Hold on to your hats, friends. Earthquake's comin'.