William Quill

This is not 2004. In that year, the Massachusetts Supreme Court ruled in favour of allowing gay and lesbian couples to marry, the first US state to allow this. It was only a year after Lawrence v. Texas, in which the US Supreme Court overturned sodomy laws in 14 states. In that year’s presidential election, the Republican incumbent George W. Bush proposed a Federal Marriage Amendment to amend the US Constitution to define marriage as between a man and and a woman, prohibiting states from enacting laws to contrary effect. It would have been the second Amendment to restrict the freedoms of US citizens, the first being the 18th Amendment in 1919, introducing prohibition (repealed in 1933). President Bush’s Democratic opponent, John Kerry, a Senator from Massachusetts, supported civil unions, while opposing both equal marriage and any proposal to define marriage at a federal level. Referendums to amend state constitutions to define marriage as only between a man and a woman appeared on the ballot in a number of states in November 2004, driving up conservative turnout, and contributing to the vote of Bush against Kerry, in what was a close election.

But a lot has changed in those eight years on the issue of gay marriage. Then it seemed destined to be a nice feature of certain liberal enclaves, whether in the US or in Europe. Now it seems an inevitability, only a matter of time across most of the developed world. Last year, public tracking polling by Gallup showed for the first time that a majority of Americans supported legal gay marriage, with 53% in favour and 45% against. The figures in 2004 were 55% in favour, and 42% against. The figures in 2004 were 42% in favour and 55% against, and they remained steady till last year. An annual tracking poll should be reliable, but in case it looks too sudden to be credible, it was corroborated by similar figures from the Washington Post (53%) and CNN (51%).

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Today in California, one of the most significant debate on whether gay and lesbian couples should have equal rights to marriage is coming to a conclusion. This is the federal case of Perry v. Schwarzenegger, which is at the stage of closing statements from both teams, which is hoping to overturn Proposition 8, which passed an amendment to the Californian constitution banning gays and lesbians from marrying under the Californian Constitution. This was passed on 4 November 2008, the same date Barack Obama was elected president.

When I first heard of the case last summer was being taken at a federal level, I was a little wary. I felt that given this would eventually be appealed to the Supreme Court, and that given the delicate balance of the Supreme Court, it was likely that Anthony Kennedy, considered the swing voter, would ensure at least 5-4 against the plaintiffs, and set back the case of marriage equality for a decade or so. Many of the groups who had campaigned against Prop 8 felt similarly.

Now, after the close of hearings,  I’m more optimistic about the benefits of the case. It made news because it brought to together the conservative Ted Olson and the liberal David Boies, who had been on opposing sides in Bush v. Gore in 2000, jointly representing the plaintiffs, two couples who had failed to get married during the period where it was possible for them in 2008. They were backed by the newly formed American Foundation for Equal Rights, which had on its board John Podesta, former Clinton White Chief of Staff and President of the Center for American Progress, and Robert Levy, President of the Cato Institute, one of the leading libertarian think-tanks.

Considering the proceedings of the court to date, I would not be surprised if the case was ruled in the plaintiffs’ favour, given the weak evidence and reliance on research from anti-gay activists like George Rekers who were over-compensating for their own repressed homosexuality. But even if it were to fail, and to fail again on appeal to the Ninth Circuit, good will come from the nature of the evidence presented.

If it does fail, it will probably not be opposition’s case that allowing any couple to marry would undermine the state’s interest in encouraging marriage for the benefit of children, or that the institution of marriage in society would in some way be weakened. If it fails, it will most likely be because of a judgement that as the people believed there was a rational basis for denying marriage rights, the court is not in a position to overrule them.

The benefits of the case, whatever the outcome, is threefold. On the one hand, it has provided the most thorough setting in which the arguments of both sides have been scrutinized, and the fault lines and weaknesses highlighted. Whatever the next forum for this debate, it now must take place at a more informed level. Secondly, the symbolic effect of the legal team and its backers matters. The right of gay couples to marry is being seen less and less as a matter of left against right, of liberals against conservatives. For Levy and Podesta to co-author an op-ed in the “Marriage equality for all couples”, will make more American start to question their preconceptions on the issue. As would Ted Olson article in Newsweek earlier this years, “The conservative case for gay marriage”. Finally, the lives of the four plaintiffs will seem familiar in their ordinariness to many: Kris Perry and Sandy Stier together ten years and raising four boys, Paul Katami and Jeff Zarrillo nine years, all in very conventional careers.

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