In S.F., federal court hears arguments for legality of California ban on same-sex marriage

The question of same-sex marriage has entered the federal courtroom, and LGBT activists and marriage protection advocates alike have prepared their factual ammunition for the battle ahead. Caught in the controversy’s whirlwind, political science Prof. Gary Segura testified for a total of nine hours Wednesday and Thursday as an expert witness on political representation.

Both sides of the marriage debate will have the chance to present their evidence in the federal trial Kristin M. Perry v. Arnold Schwarzenegger, which began Jan. 11 and is expected to end this week. Plaintiffs are challenging the constitutional validity of the California ballot measure Proposition 8, which passed by a 52 percent margin in November 2008, banning same-sex marriage in the state.

The trial is the first to bring same-sex marriage to federal courts, and plaintiffs hope to use Segura’s testimony to invoke the federal equal protection clause in favor of marriage equality.

The Rational Basis Test

According to law school Prof. Jane Schacter, this trial is particularly significant because it questions whether the gay and lesbian community is “a suspect class.” If the gay and lesbian community is declared a suspect class, the courts may apply a more stringent test to the validity of the ban.

States are allowed to disadvantage a group as long as there is a “rational basis,” and Prop. 8 was originally justified by this test.

Once a group is declared a suspect class, however, the courts must apply a higher level of scrutiny and prove that states have a right to apply the law due to compelling state interest. Plaintiffs hope to increase the level of scrutiny in order to throw out Prop. 8.

According to Schacter, in order to be declared a suspect class, the gay and lesbian community must prove three conditions: a history of discrimination, a lack of sufficient political power through the normal political process, and a victimization due to irrelevant traits.

“A fourth condition may be applied, too: immutability,” she added. “In colloquial terms, do people have a choice of being gay, or are they born gay?”

Historically, racial discrimination has been a subject of strict scrutiny, while gender has fallen into the category of intermediate scrutiny.

Segura’s evidence is intended to support the second condition, which law emeritus Prof. Michael Wald said had evidence in its favor.

“I do think that gays and lesbians are politically vulnerable,” Wald said. “Just because voters pass something doesn’t mean it’s constitutional.”

Schacter acknowledged that there are compelling arguments on both sides. While California extends domestic partnership rights and has no ban on sodomy, the gay and lesbian community has also been subjected to discriminatory ballot initiatives.

‘Scare Tactics’

In addition to reviewing the concept of scrutiny, the courts are also trying to determine if the marriage protection advocates are driven by animosity.

“The Court wants to say that if the animosity is the only factor backing Prop. 8, then the judge would strike it down,” Schacter said. “[Judge Vaughn Walker] would invalidate it if that’s the only thing backing it.

“Judge Walker is conducting a full-blown trial with lots of witnesses and cross-examinations,” she added. “The trials before were based on dry legal arguments conducted on briefs. [Walker] is really looking at the factual basis behind Prop 8.”

Sarah Masimore ’11 commented that the case will force same-sex marriage opponents to give factual support to their arguments. “I think it’s really great that it’s in the court system right now because [Prop. 8 supporters] can’t use scare tactics anymore,” she said. “They have to give actual evidence of what they said during the campaign.”

Segura on the Stand

Segura said he initially declined to participate because of the time commitment but, after thinking about it further, decided it would be a worthy undertaking.

“It seemed like an important thing to be associated with,” he said. “When they called the second time, I just said, ‘Alright.’”

Segura’s argument for the political vulnerability of the lesbian and gay community rests on his claim of the group’s subjection to widespread public disapproval and condemnation. “Gays and lesbians are more likely than any other American to be targeted with rape and murder and hate crimes.” he said.

Through his research, Segura found that gays and lesbians do not have basic employment discrimination prevention rights in 29 states, are underrepresented in public office and are targeted by more political initiatives than any other group.

According to Segura, the gay and lesbian community has lost 70 percent of the time on issues not concerning marriage, and 100 percent on issues concerning marriage.

“Now, three-fifths of the states have constitutionally established a group of people as not fully equal,” Segura said. “It’s wrong to view all of these things and conclude that a group is still sufficient to protect their basic rights through the normal political process.”

Segura, whose academic background is in minority rights, said his role in the trial was professional. “I was not testifying as an advocate,” he said. “I am a social scientist. My work is a fair assessment of the strategic political circumstances of gays and lesbians.

“I’m part of the trial to provide expertise to the court but there are competing experts,” he added. “My views are not consistent with the person that the defendants are bringing.”

The defendants will bring in Claremont McKenna government Prof. Kenneth Miller to testify more about political power, speaking in opposition to Segura’s arguments.

End of the Road?

Schacter and Segura both agreed that the San Francisco case will not be the end of the road. According to both, whoever loses the decision will probably appeal to the Ninth Circuit. From there, the Supreme Court may decide to hear the case.

“The bringing of this case was so controversial,” Schacter said. “Some gay rights groups didn’t think it was the right time since there may be a five-member majority [of conservative values] in the Supreme Court.”

According to Schacter, Supreme Court Justice Anthony Kennedy ’58 would be the swing vote if the decision made it to his court. Kennedy ruled on behalf of striking down the ban on consensual sodomy in the 2003 case Lawrence v. Texas, but Schacter said it was unclear whether he would go so far as to support same-sex marriage.

“You read between the lines and you can see that he made the distinction clear that he wasn’t deciding anything about the marriage issue,” she said. “At the level of legal argument, you can use the sodomy decision to support marriage equality, but whether [Kennedy’s] willing to do that is a separate question.”

Schacter also said that if Prop. 8 is upheld, the Supreme Court may not review the case – a possibility with complex implications for the political struggle over gay marriage.

“It won’t really change the status quo,” she said. “It will not threaten the many anti-marriage equality measures that are already placed around the country, so the Supreme Court might just wait before reviewing it.”

Schacter made the comparison between the previous ban on interracial marriage and the current ban on gay and lesbian marriages.

“It took almost 20 years before the ban on interracial marriage was struck down,” she said. “The gay rights battle began in 1993, approximately.

“There are astonishing parallels,” she added. “Marriage has been a changing, evolving institution. At the time that there were bans on interracial marriage, there was tremendous public support for banning it since it violated religious barriers.”

According to Schacter, there was probably 90 percent disapproval for interracial marriage around the country before the Supreme Court finally overturned the ban.

“If voters voted that there cannot be interracial couples, then that wouldn’t be constitutional,” Wald added. “It’s a restriction of choice to marry. Whether you restrict a choice on race or gender or other factors, that is generally unconstitutional in terms of policy.”

Schacter added that strict scrutiny was applied to the 1967 case of Loving v. Virginia, which struck down the ban on interracial marriage.

“The heart of this case is whether this issue is comparable to Loving v. Virginia,” she said. “Whether it will carry over to the same-sex controversy is not settled. It may be an uphill battle for gay rights activists.”