Posted by: Jeff | January 13, 2010

The Game Is Afoot

Perry v. Schwarzenegger is now on its third day in U.S. District Court. For anyone in need of a refresher, Perry is a challenge to the constitutionality of California’s Proposition 8. That the case will eventually reach the Supreme Court, possibly within the next two years, seems to be a forgone conclusion at this point. (Here’s a website tracking the trial.)

The two lawyers heading up the challenge are Ted Olson, a former U.S. Solicitor General, and David Boies, and the story of these two guys is literally the kind of thing you would expect to get cooked up in a Hollywood pitch session. Olson is a pillar of the conservative political establishment, and needless to say he’s raised eyebrows by taking on the case. (He just wrote an eloquent defense of this challenge to Prop. 8 in Newsweek.) On top of this, Olson and Boies are old rivals, as both men previously found themselves on opposing legal teams in another landmark court case, nothing less than 2000’s Bush v. Gore.

Most dramatically, unlike last year’s Strauss v. Horton, which sought to overturn the law on a technicality, Perry goes after Prop. 8 on first principles, arguing that outlawing same-sex marriage violates the 14th Amendment. So for all intents and purposes, this case is the big tamale. It’s gay marriage’s equivalent of Brown v. Board of Education, and will effectively decide whether banning homosexuals from participating in marriage is permissible under the American Constitution. As such, it’s a profoundly risky gambit, and more than a few critics have claimed it pushes too hard too soon. I don’t think that’s a crazy position. But I’m sympathetic to the theory (I think it originated with Andrew Sullivan) that Perry could do for gay marriage what Kitzmiller v. Dover Area School District did for teaching evolution in schools.

In Kitzmiller, by forcing proponents of intelligent design to make their arguments in the structured environment of a courtroom – rather than the nebulous arena of public opinion – intelligent design’s opponents were able to reveal those arguments as empty and without substance. As a result, the court ruled in Kitzmiller that intelligent design is indeed a form of religious teaching and thus a violation of the Establishment Clause. The theory is that when gay marriage opponents are forced to argue their case under the same rules of logic and debate, they’ll suffer the same fate. I think this makes sense, as the arguments against gay marriage actually are without substance and internally contradictory.

Obviously, it might not work. But if it does, this is a case we’ll be telling our grandkids about.

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