News Analysis: Opening Arguments, at the Close

With Wednesday's closing arguments in the trial over the validity of Proposition 8, Ted Olson could be opening the case for marriage equality across the country

More than five months ago, the trial questioning the constitutionality of California’s Proposition 8 – prohibiting same-sex marriages in the state – began in U.S. District Court. Tomorrow, June 16, the trial of Perry v. Schwarzenegger will come to an end. That end, however, could also be the beginning of the much larger case for equality in marriage across the country.

Both the plaintiffs, two California same-sex couples unable to marry following the passage of Proposition 8, and the defendants, the proponents who brought and supported Proposition 8, finished presenting their cases to Judge Vaughn Walker before the end of January. Walker told the parties at the time that he wanted to review the evidence presented at trial before holding closing arguments.

On June 8, a little more than a week before Wednesday’s scheduled closing arguments, Walker filed a list of 39 questions for the parties: 12 for the plaintiffs, 12 for the proponents of Proposition 8 – who intervened in the case when neither California’s governor nor attorney general took up defense of the ballot measure – and 15 questions for both sides.

The questions reflect the attention to detail that Walker exhibited throughout the trial, but also the ”big picture” nature of a trial addressing issues of marriage, family and discrimination.

It is that expansive nature of the lawsuit that has raised questions both within and outside the courtroom for the well-known lawyers behind this challenge – Ted Olson and David Boies – that likely are only beginning with Wednesday’s argument.

The pair, with prompting from “former White House staffer turned Hollywood public-relations expert turned political consultant” Chad Griffin and a group of Hollywood heavyweights, brought the challenge without support from any established LGBT legal groups. Griffin and the others instead started a new group, the American Foundation for Equal Rights, to bring the challenge.

More established LGBT legal and political groups made clear their concerns about the challenge in the opening days of what quickly became known as ”the Olson/Boies suit” – but then quickly pivoted to support the litigation – with Lambda Legal, the National Center for Lesbian Rights and the American Civil Liberties Union going so far as to attempt to intervene in the case (unsuccessfully) on behalf of local California LGBT groups.

They did so because the case, they know, could have an impact outside of California. That could not have been clearer than when Walker submitted his questions to the parties.

Referring to the federal prohibition on recognizing same-sex marriages, Walker asked the plaintiffs bluntly, ”Can the court find Proposition 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act?”

The question is particularly relevant nearly 3,000 miles away, where another federal trial court judge – U.S. District Court Judge Joseph Tauro – is directly considering whether a portion of DOMA is constitutional in a challenge brought by Gay and Lesbian Advocates and Defenders in Boston.

That case, Gill v. Office of Personnel Management, challenges whether the federal definition of marriage as being limited to only one man and one woman – accomplished by Section 3 of DOMA – is constitutional for couples in Massachusetts who are legally married in their state.

In fact, Tauro asked the Department of Justice lawyer tasked with defending DOMA a question at a hearing on May 6 that ties the East and West Coast cases together quite well. He asked Scott Simpson, an assistant attorney general, ”When did it become a federal matter, dealing with marriage?”

After some back and forth with the judge, Simpson admitted, ”1996 — DOMA is the first time it is true that Congress has enacted a law defining what ‘marriage’ means for federal purposes.” It is for that reason that the plaintiffs in Massachusetts are arguing that the federal government has no constitutional right to have begun doing so in a discriminatory way.

So, on the West Coast, Olson and Boies are arguing that California cannot constitutionally prohibit same-sex couples from marrying. Meanwhile, their East Coast colleagues at GLAD are arguing that the federal government cannot constitutionally limit the federal definition of marriage and must recognize same-sex couples legally married under state law.

Judge Walker, in his questions, appears to be aware of the interlocking and interrelated constitutional questions that he and Tauro must answer in resolving their specific cases.

On Wednesday, June 16, Olson and Boies – in answering Walker’s questions – will make clear their view on how they think the court should resolve the DOMA question, signaling the breadth of the case that they hope to take up on appeal, first to the Ninth Circuit and then, possibly, to the U.S. Supreme Court. They’ve said already that they believe the case can be resolved in a way that is specific to Proposition 8, but have signaled that they would hope to see a broader ruling.

Their answer – and, later, Walker’s decision – will have implications not only for the four plaintiffs in the case and not only for California same-sex couples, but potentially for the couples in Massachusetts who are the plaintiffs in the Gill lawsuit and, in the end, for couples across the country who are prohibited by state or federal law or both from having their relationships recognized in law.