Perry v. Schwarzenegger: The Basics of the Prop 8 Trial

Today begins Perry v. Schwarzenegger, the federal marriage equality case that could become the Brown v. The Board of Education or the Loving v. Virginia of the 21st century. The media coverage has been nothing short of frantic, and here at Change.org there have been reports of the Constitutional arguments, the pre-trial motions and the quirky prosecutorial team. Here is a basic primer from a trial geek.

The Prosecution Plaintiffs (fighting for marriage equality):

Representing the plaintiffs (also known as the petitioners) we have Ted Olson and David Boies, former rivals in the little known Bush v. Gore case of 2000. They are representing two couples, Kristen Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo -- both of whom unsuccessfully petitioned for marriage licenses after Prop 8 passed.

The Defense (fighting against marriage equality):

The defense team reads like a guest list to Maggie Gallagher's Easter party.

First we have the Alliance Defense Team (ADF), "an alliance defending the right to speak and hear the truth." Which is odd, since they've worked so hard thus far to make sure no one speaks or hears any truth about this case. The ADF focuses on cases regarding the sanctity of life, family values and religious freedom. 'Nuff said.

Joining them is Cooper & Kirk, PLLC, a boutique defense firm that has represented John Ashcroft (torture memos) and Jeb Bush (disenfranchising felons). And rounding out the team is Andrew P. Pugno, an estate lawyer with a past in public policy law.

Both Schwarzenegger and Edmund "Jerry" Brown are named as defendants -- it's protocol to name state officials when suing the state -- but since they both support gay marriage, both are refusing to participate in the lawsuit. Don't sweat it, a number of selfless folks have stepped up to do the job. State Senator Dennis Hollingsworth was the first to intervene. He's been fighting against marriage equality from the get-go, arguing that "unless Prop 8 passes, acceptance of gay marriage will now be mandatory for all of us."

He's joined by the folks behind ProtectMarriage.com.

The Issues:

The essential argument of the case is that the state of California has violated the 14th Amendment of the U.S. Constitute by denying its gay citizens the right to marry. Olson and Boeis posit three points of contention: Due Process, Equal Protection, and violation of 42 U.S.C. § 1983. This classic trifecta of Constitutional law guarantees us all that we will be given the same fundamental rights, the government will work to protect those rights and no state will ever take those rights away.

In Loving v. Virginia (1967), the U.S. Supreme Court decided that the right to marry is "essential to the orderly pursuit of happiness by free men. Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." The Court concluded that a law criminalizing mixed race marriage deprived all citizens of this fundamental right without due process of law.

Applying that same logic to Prop 8 seems like a no-brainer, right? Here's where things get sticky. Homosexuals are not what folks in the legal world call a "suspect class," which basically means that the state and federal governments can discriminate against gays as long as they can come up with some "rational basis" for doing so. The "rational basis" in this case is Tradition. That old story.

Olson and Boies must convince the court that due to a "long and painful history of societal and government-sponsored discrimination," including "criminal penalties for private sexual conduct between consenting adults, harassment, hate crimes, and discrimination," homosexuals are a threatened minority requiring the most diligent of governmental protection. Easier said than done.

Where to Get Updates:

We at Change.org will keep you updated on the big ticket items. For those of you who'd like to follow along in real time, Equal Rights Foundation is an excellent place to start. Go here for their up to the minute coverage. The revolution will also be twittered by Karen Ocamb at lgbtpov.com, Lisa Keen at Keen News Services, and The Advocate. The court has a dedicated website for the case where it is posting court documents and press releases.

Coverage begins at 8:30am PST.

Photo: Maia Spotts