2013: Marriage Equality Part Two

Matt Baume on the excellent Prop 8 Trial Tracker Blog recently looked back at 2012 through the (US) prism of marriage equality and transformative legal change.  As I look to the year ahead, I can't help thinking that we are simply entering the year of the sequel.  Not just for The Hobbit or Star Trek, but also for the question of marriage.

In the US, the Supreme Court will now seek to resolve the two questions of the Defense of Marriage Act (DOMA), and the ongoing Perry/Proposition 8 legal action.  Both will have significant ramifications for marriage equality across the United States, and the outcome of those cases is far from clear.  Expectations and nerves are equally in evidence.

In the UK, the Christmas period saw the question of same-sex marriage continuing to dominate the media.  The Catholic Church (who you might have thought would have had other things on their minds at Christmas) seem to have a pre-occupation with homosexuality which verges on the obsessive.  First, Britain's most senior Catholic, the Archbishop of Westminster, took another brave step into irrelevance, using his Christmas Eve mass to declare the government had no mandate for legal change (likening David Cameron to the Nazis and Communists), described the plans for legal reform as a 'shambles', and also declared that most people were against the reforms.

Now now, I hear you say, you're just singling out one man and he's not representative of the whole Catholic Church (even though he leads it in England).  Well, it seems the Archbishop of Birmingham (for it is he) agrees with you.  Not wanting the Catholic Church to be painted as led by an unrepresentative bigot, he made sure that such bigoted views are representative of the Church as a whole.  He decided to spend Christmas writing a letter to churches and chapels in his diocese (and to be read to worshippers on New Years Eve), telling them:

'Government policy cannot foresee the full consequences, for the children involved or for wider society, of being brought up by two mothers without a father’s influence or by two fathers without a mother’s influence. 'We first learn about diversity and acquire a respect for difference through the complementarity of our parents.' He describes the 'complementary love of father and mother' as a 'precious gift that we should wish for every child'.

So, the Government do look likely to have a bit more of a hoo-ha over their same-sex marriage plans.  Although the Archbishop of Westminster is wrong in describing the plans as 'shambolic', it would be fair to describe them as not yet fully thought through.  The Government do need resolve the issues of consummation and the issue of the status of Civil Partnerships far better than the sticking plasters on offer in their current formal response.

Perhaps feeling left out, High Court Judge Sir Paul Coleridge decided to embroil the judiciary in the mess of same-sex marriage. According to the Telegraph:

Sir Paul Coleridge questioned the decision to concentrate on an issue that affects "0.1%" of the population at a time when break-ups were leaving millions of children caught up in the family justice system. The comments by the judge - who started a charity to try to stem the "destructive scourge" of divorce - come after plans for gay marriage were criticised by the leader of the Catholic church in England and Wales as undemocratic and totalitarian. Sir Paul said that his charity, the Marriage Foundation, did not take a stance on same-sex marriage. But he told a newspaper: "So much energy and time has been put into this debate for 0.1 per cent of the population, when we have a crisis of family breakdown. "It's gratifying that marriage in any context is centre stage... but it [gay marriage] is a minority issue. We need a much more focused position by the Government on the importance of marriage."

Daniel Isenberg noted on the excellent UK Human Rights Blog, that Sir Paul had recently agreed to take a lower profile in his Marriage Foundation.  Indeed, the Office for Judicial Complaints concluded in November of 2012 that:

“The OJC has concluded its investigation into the conduct of the Honourable Mr Justice Coleridge in relation to the judge’s participation in the Marriage Foundation. Having considered all of the facts the Lord Chancellor and the President of the Queen’s Bench Division (on behalf of the Lord Chief Justice) do not consider Mr Justice Coleridge’s involvement with the Marriage Foundation to be incompatible with his judicial responsibilities and therefore does not amount to judicial misconduct. Mr Justice Coleridge has agreed that a lower profile role within the organisation would be more appropriate for a serving judicial office holder.”

I'm not sure that agreement is going entirely to plan.  Where does this leave us?  Well, for those wondering where the radical law and sexuality agenda will lead next, it seems determinedly stuck the conservative groove of marriage for now. 2013, the year of the sequel.

Activate SCOTUS!

For Brit tweeters, SCOTUS sounds like some other mystery character from the West Wing (POTUS has had a bike accident, SCOTUS was riding on the back).  The explosion of tweets on Friday made clear firstly that it stood for Supreme Court of the Untied States, and secondly that something ground-breaking may be about to happen.

Certainly the political shows over the weekend whipped themselves into a frenzy.  I was struck when Meet the Press discussed this as a potential Roe v Wade watershed (the case which legalised abortion).  Others have made the comparison to Brown v Board of Education (the landmark race case).

The news is (if you've been living on the moon) is that the US Supreme Court has agreed to hear two cases - of critical importance for those interested in law and sexuality.  One addresses the Defense of Marriage Act (DOMA) and other addressing Proposition 8.  Put simply, DOMA is a federal law (originally backed by Obama, now rejected) which means that even if individual States allow same-sex marriage, those marriages are not recognised at a federal level.

Proposition 8 was essentially a referendum back in 2008 (the same year Obama was elected to his first term) in the State of California.  California had same-sex marriage but Prop 8 defined marriage in the constitution as being between a man and woman.  In doing so, it rendered same-sex marriages unconstitutional and thus verboten.  As such, the legal challenge to Prop 8 has taken on the air of the black civil rights cases that have gone before.

I've been lucky in recent years to make it over to the States for the LGBT Bar Association Annual Conference, enabling me to meet with, and hear from, lawyers, judges, jurists and state and federal officials.  Over several intense days, I could get a feel for the currents sweeping through the US legal world, but I wasn't able to get over this year, and it's only now that I realise how out of touch I am as a result.  I'm left with digesting the US media and going with my gut - but it's not the same.

My hunch is that the DOMA case will succeed.  By which I mean, DOMA will be overturned.  Even those who are hardly gay rights activists will - I'm guessing - be swayed by the power of individual States arguments (but it's far from a given).

When it comes to Perry, the proposition 8 case, I confess I have no idea.  I'm less optimistic it will succeed but that could well just be my default pessimism.

Anyway, for following every twist and turn in what will be landmark and gripping legal history, check out the brilliant Prop 8 trial tracker website.  I've recommended it before and it remains a wonderful resource. Check it out here.

Perry Presses on to Supreme Court

The Perry/Proposition 8 same-sex marriage constitutionality case looks on course to finally make it to the US Supreme Court this Autumn with a decision next June.   The LA Times reports that:  'In a brief order Tuesday, the U.S. 9th Circuit Court of Appeals said a majority of the court's active judges voted against reconsidering a three-judge panel's decision to overturn the voter-approved 2008 state constitutional amendment. Three dissenting 9th Circuit judges who favored review called the panel's ruling a "gross misapplication" of the law that "roundly trumped California's democratic process." The two judges who voted to overturn the ban last February reiterated Tuesday that their decision was limited to the situation in California.'

I've long been unconvinced that a decision from the US Supreme Court is necessarily a good outcome for those opposed to Proposition 8 (and in favour of same-sex marriage).   Although the outcome is far from certain, the court remains weighted in favour of a conservative outcome and that would then 'lock-in' a potentially unfortunate outcome.

Read the full LA Times story here.

Prop 8 Trial Videos to Remain Sealed

Very interesting developments (or lack of developments) over in the States in the last few days concerning the Proposition 8 trial (or Perry trial).  The battle over releasing video footage from the trial continued with the 9th US Circuit Court of Appeals ruling ensuring that videos made remain sealed - despite a judge who made the promise not to show the videos showing them as part of speaking engagements.   Read the full story here.

Perry, Prop 8 and "Social Progress"

There's been much written about the Perry case - the California case that was successful in finding that Proposition 8 was unconstitutional. Proposition 8 was passed back in 2008 through a kind of public petition and defined marriage as between a man and woman. This meant that California's marriage laws were suddenly prohibited and marriages came to a stop. The Perry case has been an attempt to rule that such a measure was unconstitutional. If you earch this blog, you'll find various posts about related events, videos of the trial re-constructed and more.

Today, the Bay Area Reporter (the San Francisco based gay weekly free newspaper) carries an interview with Kristin Perry and Sandra Stier, the lesbian couple at the centre of the case. It's a really interesting insight into the impact the case has had on their lives. Read it in full here.

The case is currently before a panel of the 9th U.S. Circuit Court of Appeals and is expected to reach the U.S. Supreme Court by late 2012 or early 2013.

Eyes on San Francisco as Prop 8 Goes to Appeal

Legal eyes will once again turn their attention to San Francisco tomorrow. At 10am local time (6pm British time). The US Court of Appeals for the 9th Circuit will consider Proposition 8 (the California ban on gay marriage) via the Perry v. Schwarzenegger case. Unlike Perry, it will be televised which is a major step forward. As the Advocate explains, a three-judge panel will consider two main questions before the court: whether a federal judge erred in ruling the anti-gay marriage initiative unconstitutional, and whether a coalition of Prop. 8 supporters who defended the ballot measure at trial have standing to appeal the case.

The Advocate site will stream the trial but the official channel is the US network C-SPAN (sort of like the BBC Parliament Channel). You can check out their live channel page here.

The trial is also being viewed as an important learning experience for law students. In a Press Release, the Court quotes Joan Hollinger, a faculty member at the University of California, Berkeley, School of Law as saying: "The Ninth Circuit is providing a wonderful opportunity for law students to observe appellate arguments on both sides of this controversial issue".

"It's an invaluable learning experience," said Hollinger, who is mentoring students who are studying and blogging about the Prop. 8 case. The blog, called "Prop 8 on Trial," is available here: http://prop8.berkeleylawblogs.org/.

Other law schools planning to show the proceeding on campus include New York University School of Law; Yale Law School; Harvard Law School; the University of Chicago Law School; the James E. Rogers College of Law at the University of Arizona; Stanford Law School; the University of California Hastings College of the Law; and the University of California, Los Angeles, School of Law.

After Perry: Legal Reflections

Last week I mentioned on Twitter a conference call that the American Bar Association was organising. The call was to discuss the Perry victory, including analysis of the decision and the possible appeal. The call was led by Kate Kendell, the Executive Director of the National Center for Lesbian Rights, and Professor William N. Eskridge, Jr., the John A. Garver Professor of Jurisprudence at Yale Law School.

You can listen to a recording of that conference call here. A wonderful resource for activists and students.

Reflections on Same Sex Marriage

Spiked have published a wonderful piece by Helen Searls on same-sex marriage following the Perry decision. It's a fresh and challenging piece that you can read here. For a more personal but just as worth-while reflection on the same-marriage debate from an international perspective check out this blog. All of this comes as California gears up for the return of same-sex marriages next week.

Victory for Same-Sex Marriage Campaigners

If you're on this blog you probably already know by now that Proposition 8 - the California ban on same-sex marriage - was overturned last night by Justice Vaughn Walker in the case of Perry v. Schwarzenegger. It's all over the press although the various reports can't agree on the length of the judgment - some say 136 pages and others 138. Read the full judgment here and decide for yourself (it goes up to 136 pages but the page numbers don't start on the first page thus it is 138 pages if you can't the actual number of pieces of paper).

You can read the Bay Area Reporter summary here, the New York Times here (and their editorial here), and the San Francisco Chronicle main story here. They have some fantastic coverage. You can get a UK take via the Guardian here (I can't find it on the Daily Mail site for some reason).

This case was concerned with constitutional law but Justice Walker recognised the realpolitik of the situation and undertook a detailed examination of marriage - rendering the case more in line with public expectations and attempting to ensure that all avenues were explored, thus avoiding (or hoping to avoid) recriminations at the time of his judgment. The case goes back to 2008 and the elections of that year (when Obama was elected president). California enables the introduction of 'Propositions' - something alien to UK audiences, but an idea that the current Coalition government is kicking around. This means that citizens can get a proposal on the ballot paper that people can then vote on. This particular proposition - proposition 8 asked 'Shall the California Constitution be changed to eliminate the right of same-sex couples to marry providing that only marriage between a man and a woman is valid or recognized in California?' 52.34% voted in favour and thus the proposition was passed which ultimately led to this legal action. You can read more about the background, the vote and the arguments advanced int he original ballot here.

Let's not forget that it was originally hoped by the California courts and by Justice Walker that you would be able to see him make the judgment. It was originally planned that the case would take part in a trial of televised cases but those opposing same-sex marriage took their arguments to the US Supreme Court in a bid to stop it. They won as I previously blogged (much to my surprise at the time).

However, this led to a bunch of California based actors taking up the cause and creating video re-creations of the trial. Their site, marriagetrial.com is a fantastic resource. You can watch the full judgment be read out by the Justice Walker actor in their most recent post and you can see the summary of the findings (edited as a separate clip) below:



Given that understanding how many pages the judgment has can be a little confusing, you can imagine how confusing the law might seem to others. However, this is an incredibly well written judgment and you don't have to be a legal expert to understand and read the judgment. The detailed examination of the witness testimony renders this judgment a must read for law students whatever now happens with this judgment. The US academic historian George Chauncey emerges as a really important influence on the final judgment.

A couple of things struck me about the judgment as soon as I read it last night. Firstly, the judgment is an extraordinary passionate defence of marriage - it praises the unique place that marriage has in our society. For those campaigning for marriage equality, you couldn't want more. Sections of the Walker judgment that distinguish civil unions from marriage will be of use for those campaigning for full marriage equality under the law in England and Wales. However, this isn't so helpful for those wanting a greater range of different relationship models and those who want to see marriage stripped of its privileged position. In order to combat the arguments of the right, Justice Walker firmly drives the gay marriage tank onto their lawn in this judgment.

The aspect that I had perhaps not fully appreciated last night, but I sense as I read through the coverage this morning is just how powerful this victory is. Crowds gathered (some say thousands and the separate SF Chronicle images seem to support at least hundreds) to march from the Castro to the Civic Centre. You can see the crowd outside the Civic Center (City Hall) below. You can watch video footage here. Other pictures can be viewed here. It's easy to forget that this is a decision that will affect people's lives in a very deep and profound way.


Chad Griffin, Board President American Foundation for Equal Rights spoke about the decision and you can see his statement via CNN in this clip:



Fox News and right wing homophobes were quick to cast this judgment as the "arrogance of one man". Presumably, a bit of an issue with most of the court process but never mind. For them, this was a court overturning the will of the people. In a sense, they are right. Maggie Gallagher, the chairman of the National Organization for Marriage has written a powerful op-ed piece in the San Francisco Chronicle today outlining these arguments. Read it here.

So where now? For those more familiar with the law in England and Wales, the US system can seem somewhat baffling. You can see the stages for the Perry case below - following a federal track.
So, given both parties indicated before the judgment that whatever the decision, they would appeal we've long known the case was heading for the 9th Circuit Court of Appeal. Commentators expect it will then end up before the US Supreme Court. Pro same-sex campaigners want this in many ways because then there will be a Supreme Court decision on same-sex marriage.

However, this is only a cunning plan if the Supreme Court says they are in favour of same-sex marriage. If they don't, it could be fairly disastrous - potentially sinking the marriage cause in other states rather than aiding it. I'm hoping to get more of a feel for the mood/aims of the LGBT legal community when I'm back in the States later this month, and will blog my impressions then. In the meantime, you can read more about the court structure here.

It's terrific win but there's a long way to go.

Bad News in California Same-Sex Marriage Poll

The San Francisco Chronicle carries a really interesting piece this morning that exposes the lamentable failure of the same-sex marriage campaigns in California in the wake of Proposition 8. perry may yet give cause for brief celebration -although everyone expects the case to be appealed whatever the outcome - but the lack of an effective on the ground campaign is now evidenced by a pathetic 51% support for same-sex marriage. The story notes that: 'as in May 2008, 51 percent of voters say they support same-sex marriage, with 42 percent opposed and 7 percent having no opinion.

Yet when given a third option of allowing same-sex civil unions but not marriage, about one-third of survey participants - 34 percent - said they prefer this alternative, dropping the numbers of those who support same-sex marriage to 44 percent and that favor no legal recognition of same-sex couples to 19 percent. Three percent had no opinion.

The poll, conducted June 22 to July 5, was based on a telephone survey of 1,390 registered California voters and has a margin of error of plus or minus 2.8 percentage points.

Read the full story here.

Endings and Beginnings

Well the archive work is going well although it was a little packed with researchers today. I freely confess one researcher distracted me for all the wrong reasons. His tight denim shorts revealed that he wasn't so much in possession of a trouser snake as being engaged in a remake of Anaconda..but anyway...on to more cerebral thoughts.

It' a day of endings and possible beginnings. Here in San Francisco, the California Supreme Court heard the closing arguments in the Perry case. I've seen some of the protests on the news but when I headed over to the Supreme Court this afternoon it was just a scene of satellite trucks. I didn't see a single campaigner - except an ACLU guy down on Market Street near Abercrombie & Fitch. Maybe it was just bad timing but I thought the city would be buzzing with it. It wasn't. Yesterday I was stopped by someone from Equality California - a group that does some great work. I cut him off saying I buy the Prop 8 argument, he doesn't need to explain it, just tell me what he wants, and I'll see if I can help. On he went with his script (which annoyed me greatly) and then he asked me for my credit card to pay $150. They must be mad or am I under-estimating the wealth and generosity of people walking the streets?

Meanwhile, back in the UK, Home Secretary Teresa May (she of star trek suit and extensive shoe collection fame - not to be confused with Imelda Marcos) has made an announcement on the coalition government's LGBT legal agenda. It was in the coalition agreement so I'm a bit puzzled by the re-announcement but let's roll with it. The full story can be viewed on the Pink news site here.

Is There a Place for Gay People in Conservatism and Conservative Politics?

'Is There a Place for Gay People in Conservatism and Conservative Politics?' is the name of an event taking place later today at the CATO Institute in Washington DC. The BBC Today programme picked up on the event and included an interview between Evan Davis (openly gay BBC presenter/journalist), Nick Herbert (openly gay member of the Conservative Shadow Cabinet) and Andrew Sullivan (openly gay leading journalist at centre-right newspaper The Sunday Times - the biggest UK Sunday newspaper). Wind the clock back 15 years and the mere of existence of such an interview would be headline news.

The interview was to discuss the DC event. The CATO Institute describes it's mission in the phrase 'liberty, free markets and peace', although if one applies the Simon Hoggart maxim of 'if the opposite sounds ridiculous you shouldn't say it', I'm not sure the description is as helpful as it might at first seem. The purpose of this event is described on their website and it seems to be from the starting point that David Cameron (Brit leader of the Conservative party for all those US readers who have never heard of 'our Dave') is some sort of political wizard, describing the event as:

'Under the leadership of David Cameron, Britain's Conservative Party has jettisoned much of its former opposition to gay rights. Cameron supported civil unions for gays and appointed a number of openly gay men to his shadow cabinet. Nick Herbert will explain the reasons for those changes and elaborate on the new Conservative social agenda. Will the United States follow the British example? Our distinguished panel will consider the future of gay people's participation in mainstream society and conservative politics on both sides of the Atlantic.'

The panel for the event consists of: Nick Herbert, MP, Shadow Secretary of State for Environment, Food and Rural Affairs, Conservative Party, United Kingdom; Andrew Sullivan, The Daily Dish Blog, The Atlantic; and Maggie Gallagher, President, National Organization for Marriage.

Personally, I really don't think the next election is in the bag for the Conservatives (by any means) so I think in some respects this event may well be premature. It's been repeatedly shown that Tory party after 2010 election (win, lose or draw) is likely to be far more right wing than the one booted out in 1997. Members of LGBTory often comes across as startlingly right wing but they are openly gay, encouraging and supporting gay candidates and to be found playing out in gay bars and clubs up and down the country. Whilst, their earlier incarnation, TORCHE, was knocking about in the 1990s, it seemed to be no more than a fringe group consisting of a small band of activists. Sexuality becomes a minor issue, an issue of gloss rather than something that defines the person and given people have always voted on the basis of a broad range of issues - taxation, public services, transport, immigration etc, it has always surprised me that people have assumed you can't be gay and a Conservative.

In any case, what seems to happened is that the reforms of the last fifteen years have themselves been re-cast as conservative. Marriage is a Conservative/conservative ideal - notions family and stability. On sex issues - sex work/prostitution, 'violent' pornography and BDSM, I don't envisage there being any clear difference between the two main parties in terms of practical outcome. In the US, Perry/Prop 8 lawyer, Ted Olson has made the Conservative argument for gay marriage and so the trick is less about re-positioning the party, as it is re-positioning the issue. What will be interesting to see under a Conservative government (if it happens) will be how our notions of civil partnerships evolves as they become ingrained in our culture and the Tories adopt 'family' policies.

Listen to the BBC interview here.

Perry v Schwarzenegger: Judge Walker Outed

Only in California. Yes, the judge at the heart of the Perry v Schwarzenegger trial has been outed. The San Francisco Chronicle ran a piece yesterday that opened with: 'The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.'

Such a statement invariably avoids any accusation of 'outing' in the way that Matthew Parris famously outed Peter Mandelson on Newsnight by saying 'he most certainly is gay' and later stating that he thought everyone knew (it turned out, we didn't). BTW - if anyone can find a clip of this, I'll add it to the post. So too, were those of us who don't live in SF and listen to the socio-legal gossip grape vine surprised by the news. Personally I was gutted. I thought Judge Walker has been an outstanding judge thus far, fair and asking some excellent questions of both sides. If he now comes to the view that prop 8 should be overturned, it will be inevitably rubbished as a 'gay judge' who was biased all along. If he decides that prop 8 should be upheld, many will accuse him of being a traitor. He is, quite simply, screwed no matter what he does. On the plus side, we now have another (sort of) out judge which I guess must be a good thing.

Blogs outside California will be increasingly picking up on this story and I suspect the European dailies will also start picking up on the story. One other judge, interviewed in the Chronicle piece put it rather well when he repeated the question "Is it newsworthy?" and replied (whilst laughing) , "Yes."

Perry v Schwarzenegger Makes it to YouTube

Discovering this has left me feeling elated. A group of Hollywood based film-makers have drawn upon the transcripts and first-hand account of bloggers and tweeters who have followed the Perry v Schwarzenegger trial and have started to film a series of reconstructions of the trial with actors. They seem to be of a first rate quality and are an amazing resource, ensuring that the Californian justice process is open (despite the best efforts of the US Supreme Court). I've embedded episode one below. Check out the marriagetrial.com website here. Well done guys!!

Prop 8 Update

The prop 8 trial tracker has continued to be amazing in its coverage of the Perry case in California. There now seems to be a break from the giving of evidence, before we move to closing submissions. You can read an excellent summary of the trial's 'greatest hits' thus far here.

Perry v Schwarzenegger Day 5

Sorry for not getting this up sooner. A day 5 summary can, as ever be found on the excellent Trial tracker website. The fifth day focused on that totemic issue of the right, children. Conceptions of the family and at one point explore 'a mathematical formulation on cognitive competence'. Read it all here. There have also been some less than welcome developments in Washington State and Robert Cruikshank explores those developments and possible implications for Perry here.

Perry v Schwarzenegger Day 4

Day four of the Perry v Schwarzenegger case can be viewed in summary on The Advocate site here and the excellent Trial Tracker here. As the Trial Tracker site notes, there wasn't much law on day four prima facie. Yet, there is often the misconception that law is about fixed ideas and rules. In common parlance takes the form of "you must do xyz, it's the law". Yet if we take the adversarial system which is highlighted in the Perry case and is the same system as English courts, we see it's all about two arguments. One side putting forward one argument and the other defending/responding. Law is about the uncertain, not the fixed. Uncertain facts, uncertain interpretations. When you get deeply political cases like Perry, the idea of law as uncertain, fluid and widely open to the interpretation and will of individuals appears unusual. It isn't. Law is not about a dusty set of rules, it's about people, lives, values. Law lives.

Law was certainly living during day four of the Perry trial in which a string of financial figures were exchanged- costs of insurance, costs of schools and so on, then stats on who would and who wouldn't marry, projections and a jumble of numbers. Yet, these numbers are important in the consideration of the practical effects of over-turning proposition 8/. Here's a taster:

'P: Williams Institute says that at 17%, SF County has highest percentage of gays and lesbians in the state.

E: That’s what it says.

P: You assume that the net impact of the spending due to savings on federal income tax if they are married is by spending 100% of those savings in SF on taxable goods.

E: Yes. That’s an upper end estimate.

[We’re back and forth with Prop. 8 trying to undermine every shred of his economic forecast. ]

P: Report on five years of SF Human Rights Commission equal rights ordinance. Admitted as evidence.

P: Look at page 12 for litigation update. [Trying to show that since litigation is settled and behind SF, there’s no more cost to enforce.]

P: Long series of questions saying that legalizing marriage will not automatically convert domestic partnerships to marriage and that therefore there will still be domestic partners and therefore the need for the domestic partner coverage under the current SF laws.'

So suddenly law is not about rules, it's about economics. Then it became about the practical effects of prejudice that the lack of marriage can create. Here's another taster:

'D: Every day hassles?

M: In prejudice literature we call them every day discrimination events. In ways that hate crimes have social meaning so do these. They are not annoyances when they represent social disapproval. They are felt differently.

M: Examples are plentiful. I read the plaintiffs’ testimony. One of things with which I was struck was filling out forms. Gay people do respond to that. The only way I can explain it is that it’s not about the form, the form evokes social disapproval and rejection and memories of events, including large events that have happened in the past. So it’s this minor thing that people may not even remember, but they have enormous significance. Maybe one was treated in an unfriendly way by one’s partner’s parents. It’s not nice for anyone, but it has great social meaning of rejection and disrespect they have felt in the past.

Judge: What kinds of forms?

M: What I mean by forms is any kind of administrative form, particularly where you have to fill out your marital status. There is no place to put anything, so I say single even though I have been in a relationship for 40 years. I don’t want to get into a long discussion with a clerk in a motor vehicle office. It’s not demanding to cross out a form, it’s not memorable. But it’s memorable to gay and lesbian people because it means social rejection.

D: Type of form is that which you might see at a bank?

M: Yes.

D: Travel hassle mentioned by plaintiffs?

M: Yes, very similar. It’s not so much what happened but the meaning of it. A clerk asking about a king size bed is not a big deal, but for a gay person it has huge meaning.

D: Does the fact that that you draw in a box or get the right bed take away the problem?

M: No. It’s not about the result; it’s about “I’m gay and I’m not accepted here.” Someone might not get a job promotion or might not get married not because of prejudice or because they are being blocked, but for example if you are not married, and you are asked constantly if you are getting married it can be prejudice that creates stress. It has double meaning: the action of the non-event (not getting married), but also for the event that results in the continued daily hassles. Not a factor of their lives, but of the negative way in which they are viewed by society.'

As the trial continues, the law will be about emotion, principles, values, ideas and interpretations. Law lives.

Perry v Schwarzenegger Day 3

I'm not going to compete with the vast amount of blog coverage on the ins and outs of the case. Yesterday appeared to be dominated by a more sociological exploration of marriage and how marriage be constructed together with more on notions of identity. Read an excellent summary on the Prop8 Trial tracker blog here. For me, the most significant aspect of this case was the US Supreme Court and their video suggestion. If Perry v Schwarzenegger ever makes it to the US Supreme Court the signs don't look good for those opposed to Proposition 8.

Hollingsworth v Perry: US Supreme Court Rules

It seems odd that so much attention in the Perry case isn't on the subject of marriage (so far) but on the process of the trial. Yet, even on the issue of process over substance, the world seems split between a more liberal attitude and a conservative one. This split has now largely been reflected in the US Supreme Court. They had to decide how to proceed with the televising of the trial to a series of other courtrooms (thus extending the number of people who could watch this internationally important case) and the YouTube issue. The 5-4 ruling by the Supreme Court bans the televising of the case and the idea of clips on YouTube is also dead. It is, to put it mildly, a bonkers decision.

In an editorial today, the New York Times describes the decision as 'a sad example of the quashing of public discourse'. Absolutely. Eden James, Director of the Courage Campaign added 'who else besides the five justices holding on to their conservative majority for dear life would bar recordings of a trial that will shape this country for generations to come?' The full decision can be viewed here. Those conservative judges to seem to be eagerly flexing their muscles as if the twenty first century was just some crazy idea in a dystopian novel. For us Brits, the case is a reminder of the pitfalls of having a heavily politicised Supreme Court and we should remember this when we talk about making are own new Supreme Court more like the US model with confirmation hearings and so on.

Justice Breyer once again stepped up to the plate as the voice of reason in his dissenting judgment (joined by Justice Stevens (appointed by Ford, Rep), Justice Ginsburg (appointed by Clinton, Democ) and Obama appointee Justice Sotomayor). For someone more at home with English judgements, the strong and clear language of Breyer is particularly striking. He concludes: 'I believe this Court should adhere to its institutional competence, its historical practice, and its governing precedent—all of which counsel strongly against the issu-ance of this stay. I respectfully dissent.'

So say us all.

Perry v. Schwarzenegger Day Two

Sorry for not getting this up sooner. I'm finding it a bit of a nightmare to try and follow the trial on Twitter through the evening, but there seems to be an emerging consensus in the blogosphere that the best source for trial info is a blog run by the Courage Campaign. Courage Campaign describes it's aims as: 'The Courage Campaign is an online organizing network that empowers more than 700,000 grassroots and netroots activists to push for progressive change and equality in California and across the country. As a leading multi-issue advocacy organization in the progressive movement, the Courage Campaign's work is made possible by thousands of small-dollar donations from community members.

Whether it's helping kill the GOP's electoral college initiative "dirty trick," count the infamous "double bubble" votes in Los Angeles after Super Tuesday, or push for the ultimate closure of the "yacht tax loophole," the Courage Campaign has waged many successful campaigns.
Our partners include MoveOn.org, CREDO Mobile, Democracy for America, PowerPAC.org, California Nurses Association, National Union of Healthcare Workers and the Southern Christian Leadership Conference of Greater Los Angeles.

The Courage Campaign is also an affiliate member of the Progress Now national network of statewide advocacy organizations. Our online organizing tools are powered by Blue State Digital, a leader in online fundraising, social networking, and constituency development programs for clients including Obama for America, the Democratic National Committee, and the Alliance for Climate Protection.'

So now you know. The Prop 8 Trial tracker website is designed, in the words of Courage Campaign 'to get the truth out'. They add that 'as the trial Prop 8 unfolds, we can expect right-wing organizations like the National Organization for Marriage and their allies to continue their misinformation campaign to undermine the proceedings and reframe the debate about marriage equality.'

The trial tracker site can be accessed here and I think it's the best source for info on the trial. The Advocate has posted another summary too and that can be viewed here.

For me, the highlight of day two was the evidence of George Chauncey which also dominated the trial. Those students that I teach should be familiar with his work (if not LAW326 students, you might want to be before you hand your assignment in - hint hint!) along with many others. His Book, Gay New York is an excellent text that offers an historical overview of gay life. Chauncey was asked a series of questions that go beyond the narrow question of law and are worth reading in full here. One aspect that leapt out is the examination of the relationship between the Police and gay groups specifically in relation to the offence of solicitation for sex by one man to another:

'There were approximately 50,000 arrests under this charge from 1924 to the 1960s when then-Mayor Lindsay disallowed the police from using entrapment to arrest homosexuals. Similar laws were in place in other states, such as California.

TS: What effect did these laws have on gay people?

C: One effect was to register society’s disapproval of homosexuals. Sodomy laws were used to keep gay soldiers out of the army. It stood as a sign disapproval of homosexuals. A phenomenal number of people ran a foul of the law.

TS: Did it affect people who wanted to go out in public?

C: It did for some. At times when there were police crackdowns, people were very careful about going out in public. Disorderly conduct charges were not that serious in and of themselves, but it opened people up to more problems. Police would call their parents, landlords and work place to confirm data. So that would lead to them being known homosexuals which could lead to loss of jobs and homes, which sometimes it did lead to.