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Perry v. Schwarzenegger

- January 26, 2010

Nominally, what’s currently on trial in Chief U.S. District Judge Vaughn Walker’s San Francisco courtroom is Proposition 8, the ballot measure that eliminated the right of same-sex couples to marry in California when passed by the state’s voters in 2008. But it is not a stretch to say that what’s really on trial is the notion of gay rights itself. (FYI, I’m relying on excellent reporting at sites such as those found “here(San Jose Mercury News)”:http://www.mercurynews.com/samesexmarriage/ and “here(Keen News Service)”:http://lisakeen.com/. The Court itself has a comprehensive website on the case for the public “here(U.S. District Court website)”:https://ecf.cand.uscourts.gov/cand/09cv2292/.)

Proposition 8 disadvantages a specific group of Californians–those who would wish to marry a partner of the same-sex–under state law. It’s commonplace–and perfectly constitutional–for laws to treat different groups in different ways (just ask the bankers who are the targets of Obama’s proposed “tax on large financial institutions(bank tax story)”:http://www.cnbc.com/id/34878456). So what’s at issue here is whether Proposition 8 is a law that should be subjected to a higher level of scrutiny than usual, and–concurrently–the extent to which the state has good public policy reasons for treating gays and lesbians differently in this manner.

Yesterday–on Day 10 of the trial–the plaintiffs rested their case, which is based on the claims that gays and lesbians are a discrete group with relatively little political power; that hostility toward gay people was a driving force behind Proposition 8, and that there is no good public policy justification for denying same-sex couples the right to marry. Not surprisingly, the defense is taking the opposite tack, arguing that gays and lesbians are not a separate, identifiable group for purposes of constitutional law; that they have a fair amount of political power; and that the state has good reasons for restricting marriage to opposite-sex couples, most of which have to do with child-rearing.

Thus the case raises several tricky empirical questions–and if you’re a regular reader of The Monkey Cage, then your monkey brain is probably already thinking about how they might be answered. In my posts over the next few days, I’ll be doing my best to do the same. Now, I’m certainly not an unbiased observer here: I “opposed Proposition 8(campaign finance database)”:http://www.sfgate.com/webdb/prop8/?appSession=780131896293499&RecordID=114876&PageID=3&PrevPageID=2&cpipage=7&CPIsortType=desc&CPIorderBy=State and support the right of same-sex couples to marry. But that doesn’t mean I think the answers to these questions are clear-cut. In fact, the exploration of these questions illustrates the many of the difficulties that arise when we use empirics to adjudicate abstract legal issues. So, stay tuned!