Proposition 8 case reaches federal level

By Michelle Williams

(Courtesy MCT)

Over the past decade, seven state courts have ruled that denying gays and lesbians the right to marry is a violation of the state constitution. In 2004, the Massachusetts Supreme Judicial Court voted to allow gay marriage, with Chief Justice Margaret Marshall commenting that the Commonwealth’s constitution “forbids the creation of second class citizens” and that “the right to marry means little if it does not include the right to marry the person of one’s choice.”

Across the country in California, many residents were allowed the same rights for a brief period, beginning in 2004, when San Francisco Mayor Gavin Newsom and other city officials began issuing same-sex marriage certificates, which allowed more than 4,000 couples to marry in the area.

That changed during the state elections of 2008, however, when a constitutional amendment titled Proposition 8 was passed in California. The amendment added the clause “only marriage between a man and a woman is valid or recognized in California” to the state constitution.

Following the passage of Proposition 8, protesters quickly organized against the amendment, filing suit to block it in court. On May 26, 2009, the Supreme Court of California defended the voter-approved same-sex marriage ban in a 4 to 3 vote. The judges also decided at that point in time to allow the 18,000 gay couples wed prior to the ban to remain officially married.

On Jan. 11, a case called Perry v. Schwarzenegger was brought to the federal court level at the U.S. District Court for the Northern District of California, the ninth district, and will decide whether to allow Californians the right to marriage, regardless of gender.

Perry v. Schwarzenegger is a federal case filed by two same-sex couples, Kristin Perry and Sandra Steir of Alameda County and Paul Katami and Jeffrey Zarrillo of Los Angeles, who were denied the right to marry by county registrars, against the state of California, and will decide whether Proposition 8 violates the equal protection clause of the 14th Amendment of the U.S. Constitution, which declares, “No state shall deprive any person of life, liberty or property without due process of law; nor deny to any person the equal protection of the laws.”

This case has been brought to the U.S. district court-level by lawyers Theodore Boutrous, David Boies and Theodore B. Olson, the latter two being best known for representing opposing parties in the 2000 election case between George W. Bush and Al Gore. Representatives for both sides called historians, political scientists and other experts to the stand for testimony, including University of Massachusetts Professor Lee Badgett.


A professor of economics, Badgett has studied gender and sexuality issues since the early 90s. This past summer her book, “Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men,” was published, and has provided much of the current statistical and analytical data on sexual orientation discrimination and family policy. During the trial, Badgett cited statistics from Massachusetts, a state that has allowed gay marriage since 2004, to show that divorce rates of heterosexual couples have not been affected.

Badgett became involved in the trial after Boies and Olson requested she speak on her recently published works. Her book documents the economic benefits of same-sex marriage, noting that “if you don’t let gay couples get married, they don’t spend money on weddings and other expenses. It is a loss to the state.”

Badgett long ago became involved in the initiative for equal marriage rights, and the issue has deep roots in her own life.

“I was always someone interested in the civil rights movements,” she said. “I thought that the issue of the general principle of equality is one that our country is built on.”

As a lesbian herself, the issue of equal marriage rights is personal to Badgett.

“Being a lesbian made me closer to the issue, but even if I hadn’t been, I still believe that I’d be involved anyways,” she said.

Other activists for LGBT rights believe that the issue of gay marriage affects everyone, regardless of which coast one lives on.

Gary Lapon, the leader of the Western Massachusetts Equality Across America group, feels the results of this case could easily affect other states.

“If Proposition 8 is overturned in the courts, it would set an important precedent,” said Lapon. “It would be a big step forward, possibly something approaching a Brown v. Board of Education decision depending on the wording of the decision.”

Lapon also fears the inverse decision and its potential national implications.

“If Proprosition 8 stands, we could lose marriage equality here,” he said. “And as long as the Defense of Marriage Act stands, same sex couples are denied over 1000 federal benefits that are granted to married heterosexual couples, so marriage here is still separate and unequal.”

One option states have considered and sometimes trended towards is civil unions. These allow for same-sex couples to have the legal benefits of marriage, but aim to gain more support by not using the word “marriage.” Yet for many, to be allowed anything less than the rights of a heterosexual married couple is not true equality.


“A civil union for gay couples, while heterosexual couples can marry, is still enshrining inequality into the law,” said Lapon.

Such opinions have been documented in Badgett’s data. Citing Massachusetts statistics from 2004, Badgett said, “37 percent of gay and lesbian couples got married in the first year. In states that only allow civil unions, the numbers are between 10 and 12 percent.”

Testimony in the trial concluded Jan. 27, although the battle between the two sides is far from over. Both continue to present their points through the media as they await the decision of Chief Judge Vaughn R. Walker. A decision is expected to come at its earliest in March, though no definite date has been set. Walker, who tried the case without a jury, stated in a press conference that he would study the evidence and other briefs presented by both sides before hearing final arguments.

Even after Walker reads his decision, it is expected the case will continue until it reaches the United States Supreme Court.

Michelle Williams can be reached at [email protected]