Kristin Perry was married to her partner Sandra Stier after San Francisco legalized same-sex marriage until a court order ruled their marriage invalid. Jeffrey Zarrillo and Paul Katami had been in a relationship for almost eight years when California voters passed Proposition 8, which banned same-sex marriage.
The two couples are plaintiffs in Perry v. Schwarzenegger, a U.S. District Court trial that began Monday in San Francisco to challenge the constitutionality of the proposition.
Perry’s main argument is that no state can deny people equal protection, said Steven Severance, a second-year political science student and vice president of the Student Coalition for Marriage Equality.
The argument is also based on the 2003 Supreme Court case, Lawrence v. Texas, which overturned sodomy laws and ruled that the government cannot discriminate based on traditional sexual mores or values, he added.
Perry said that the proposition is unconstitutional on the federal level, and since the United States Constitution trumps the California Constitution, the amendment would be voided, said Austin Nimocks, a senior legal counsel with the Alliance Defense Fund, a national Christian legal alliance. Nimocks also serves on the co-counsel with the legal team defending the proposition.
However, he added that the federal constitution does not require states to permit same-sex marriages and that same-sex marriage is not a fundamental right.
He pointed to the 1972 Supreme Court dismissal of the case Baker v. Nelson as precedent, in which the plaintiffs argued that same-sex marriage was a constitutional right.
Nimocks also noted that a majority of California voters had approved Proposition 8. It passed by a 52-48 percent margin in 2008.
“The primary issue involved is whether or not California, as part of a free society, can come together and vote in important issues like marriage,” Nimocks said. “This lawsuit tells Californians that they’re not entitled to vote on this important issue.”
But even if the courts agree with Perry, Severance said there are still other hurdles that same-sex couples will have to overcome.
If Proposition 8 is deemed unconstitutional in the district, same-sex couples will not be able to receive federal recognition, like filing joint tax returns and having a same-sex spouse from another country be granted American citizenship, he said.
The case is also unique because it will be televised. Advocates said the increased visibility will help keep people informed.
“What we really need right now is a step forward, and this definitely could be it for us,” said Jason Bernabe, a second-year nursing student and president of Won Together, a marriage equality and civil rights student group on campus. He believes that the publicity of the case will help Californians become more supportive of same-sex marriage.
Many proponents of Proposition 8 disagree with having the trial televised.
The safety of the people who support the proposition or give testimony in favor of it would be jeopardized, said Derry Connolly, president of John Paul the Great Catholic University. Because the supporters’ faces would be exposed to the public, they would intimidated by same-sex advocates, he added.
Severance said he believes it is still too early to have a court case on the issue that could potentially reach the Supreme Court.
“It would be a good victory legally, but it would not change the social landscape,” Severance said.
Nimocks said that he is sure Chief U.S. District Judge Vaughn Walker, who was assigned to hear the case, will listen to all the arguments and make the decision he believes is correct.
“Regardless of what decision he makes, we know that it will be appealed and may make the U.S. Supreme Court,” he said. “We know that this will not be the end of the case.”