In March, the federal courts updated the names of the Perry defendants to reflect California’s newly-elected political officials, who took office on January 3.  The docket now reflects that, since the Perry case began, Jerry Brown has replaced Arnold Schwarzenegger as California’s governor, and former San Francisco District Attorney Kamala Harris has replaced Brown as the state’s attorney general.

The docket change is an automatic substitution that occurs when a suit is pending against any public official “in his or her official capacity,”  meaning that the defendants are being sued as state figureheads and not as individuals with personal liability.  The case is now formally known as Kristin Perry, et al v. Edmund G. Brown, Jr., et al.  Its Ninth Circuit docket number remains 10-16751.

At the California Supreme Court on Tuesday, attorneys on both sides will argue about whether California law would allow the Proposition 8 defendants to appeal an unfavorable state court decision if the California governor and attorney general refused to do so.  Judges from the Ninth Circuit have asked the California Supreme Court to answer this question.  The federal judges may use California’s approach to guide their own decision about whether the Proposition 8 proponents have the “standing”  – or legal authority – to appeal the unfavorable decision they received last year in federal district court, where former Chief Judge Vaughn Walker ruled that Proposition 8 violated the U.S. Constitution.  For more on the issue, click here.

At bottom, Cott testified that, when a couple exchanges marriage vows, the state takes a simultaneous vow to protect and support that union. “Marriage is both a public and private institution,” Cott said. Most people think principally about the private aspects of the union: Have they found a partner whom they love? Do they want to embark upon a lifelong intimate relationship with this person? However, marriage is also a public institution first authorized and then used by the state as a tool for achieving its own objectives, the most important of which is creating stable households that assist in caring for and governing the populace, Cott said.

Unfortunately, due to the volume of news on the first day of Perry testimony, Prop 8 on Trial was unable to cover Cott’s remarks in detail. However, we have chosen to revisit them now because we believe her perspective is crucial to understanding one of the principal inquiries before the Ninth Circuit: What is the history and importance of civil marriage in the United States? Indeed, the spirit of this question was raised by then-Chief Judge Vaughn Walker himself during the trial’s opening statements, when he provocatively asked, “If California were to get out of the marriage business – and simply classify everyone as registered domestic partners, wouldn’t that solve the problem?”  The “problem” to which Walker referred was the desire of gay and lesbian people to live in a state that allows them to marry another person of the same sex – and the conflicting desire of Proposition 8 supporters to exclude homosexual couples from civil marriage.

Read on to study Cott’s historical perspective on what civil marriage is, why the state remains committed it, and – first – why she thinks allowing same-sex couples to join this institution would comport with 150 years of evolution in marital law.

THE EVOLUTION OF MARITAL LAW

Cott said that, since the 18th century, U.S. law defining civil marriage has evolved in two important ways: First, the country has repealed laws restricting marriage and, thus, moved toward including more couples within the institution. Second, the United States has repealed laws presuming that men and women play separate roles in marriage and, thus, moved toward gender neutrality. On the stand, Cott declared that opening marriage to same-sex couples would comport with both trends.

THE TREND OF INCLUSION

The first legal trend that Cott described was one of marital inclusion: Since the 1920’s, the United States has slowly but steadily abolished laws that restrict a person’s choice in marital partner, she said.

Principal among these laws were racial and ethnic restrictions. For example, as many as 41 states and territories restricted interracial marriage for a significant portion of U.S. history. These laws originated in the 17th century, when colonial governments refused to recognize marriages in which white people pledged themselves to Native Americans or black people. Occasionally, state laws not only nullified these marriages but also made them criminal.

Racial restrictions proliferated after the Civil War, when freed slaves were allowed to marry and flocked to do so. Restrictions also expanded to new ethnic groups. For example, when Chinese and Japanese immigration increased during the late 19th century, California and other western states barred marriages between white people and those of Asian ancestry. Even in states that allowed these marriages, the federal government burdened the unions by stripping a woman of her U.S. citizenship when she married a man who was not an American. It would not matter if the woman “was descended from the Mayflower,” Cott said.

These and other laws forbidding marriage across the color line were typically justified as “only natural” and as “fulfilling God’s plan that the races not mix,” Cott said. She stressed that they did not prevent white people from spending their lives with black and brown people whom they loved. Instead, the laws simply made that choice more costly. “Legislatures knew these relationships were occurring: They simply did not want to give them the imprimatur of valid marriage,” Cott concluded. “They wanted to make these relationships a second-class sort of relationship.”

Over time, these restrictions were removed – a trend most dramatically marked by the 1967 United States Supreme Court ruling in Loving v. Virginia, which declared that marital restrictions based on race  were unconstitutional. But interestingly, as American courts and legislatures dismantled race-based marital prohibitions, they also affirmed one of the principal defining characteristics of U.S. marriage: Consent between marital partners. In contrast to the traditional arranged marriages of Europe or Asia, the United States has always expected marital parties to consent freely to their unions, Cott said. Courts, legislators, and voters have also confirmed that some measure of choice is part of this consent, and the ability to say “I do” to the person of your own selection has even become a marker of citizenship itself. In this way, marriage has become a civil liberty in the U.S., and expanding marital access has become an assurance of a citizen’s most personal fundamental rights.

Cott concluded by saying that allowing same-sex couples to marry could be another step in this direction.

THE TREND TOWARD GENDER-NEUTRALITY

The second trend Cott described was not a change in who can enter marriage but rather a shift in how the government understands that marriage. U.S. law previously treated men as the heads of marital households and women and children as their dependents. However, in the last 140 years, the United States has repealed laws that empowered husbands in this way, and our law now recognizes equal rights and responsibilities for both spouses, regardless of their genders.

Laws regulating roles within marriage were rooted in the common law doctrine of coverture, which provided that a wife’s legal identity merged with her husband’s. Upon marriage, the woman was no longer able to sign contracts, to own property, or even to accuse her husband of a crime. As Cott explained, coverture governed at a time when the sexual division of labor underlay the marital household: Both a man and a woman were considered necessary to marriage because their complementary duties would enable a household to survive. The approach was also justified as a fair, contractual bargain: A woman submitted to a man’s authority and cared for his home and family. In return, he promised to provide material needs for their family for the rest of their lives.

Americans later repealed these features of civil marriage. Reforms started in the 1860’s, when women began to earn property rights. Legal changes accelerated in 1920, when women earned national voting rights. Similarly, moves away from an agrarian society and toward more mechanized and service-oriented workplaces allowed women to enter the workforce more easily. The overall result has been a change in the assumptions about what the two sexes can and should do in the family, Cott said. “The sexual division of labor is no longer necessary for the kinds of work people do,” Cott concluded. Thus, while couples are still free to privately divide their labor as their 19th century counterparts did, state laws no longer presume that they will do so.

In conclusion, Cott testified that the gender neutralization of marriage supports opening the institution to same-sex couples. “The more symmetrical and gender-neutral spousal roles have become … the more that the marriage between couples of the same sex seems perfectly capable of fulfilling the purposes of marriage,” she said.

WHAT CIVIL MARRIAGE IS

Just as important, however, Cott said there is a marital principle that animated coverture and that remains at the core of marriage today: Marriage is the recognition of two adults who make a public commitment to maintain a stable relationship in which they will support one another and their dependents. Cott said we could think of civil marriage as the state’s blessing of this commitment and its simultaneous pledge to support that union.

Cott stressed that this aspect of marriage is as much about serving the state’s interests as it is about serving the couple’s needs:  Assigning care for dependents to the head of the household allows the state to delegate economic responsibilities and to create social order. It is for this reason that the state involves itself in what might otherwise be a private arrangement.

Indeed, to understand the state’s interest in marriage – and why it has not been inclined to “get out of the marriage business altogether,” as Walker said, it is important to understand the differences between civil marriage and other kinds of marriage. In many ways, this distinction harkens back to Cott’s initial point, that marriage is both a public and a private institution. In plain terms, a civil marriage is one recognized by the state and governed by its laws. It is the kind of marriage conducted in public by a state official, such as a Justice of the Peace, and it is these marriages that the Perry plaintiffs seek to enter.  They are attempting to do so by challenging the constitutionality of the California law now explicitly defining marriage only as an agreement between the members of a heterosexual couple.

However, civil marriage and its public significance stand apart from any private agreement that a couple might make and from any religious marriage in which they might also engage, Cott said. That religious marriage, often conducted in a place of worship or solemnized by a religious official, is something in which the state is not involved. Instead, the religious marriage is governed by the laws of faith.

This matter is often overlooked by Americans perhaps because we often conduct dual ceremonies, in which a couple that meets the legal requirements of both state and church enters their civil and religious marriages simultaneously. In addition, these rites are often officiated by a religious leader. However, that religious leader is able to do so only because the state – for the convenience of its citizens – has vested its power in him for the purpose of formalizing both unions at the same time. Despite this official’s presence at the ceremony, the terms of the couple’s legal, civil marriage begin and end with the provisions of state law, and conversely, no change in state law will affect its religious significance. This is, incidentally, why a couple can also be married at City Hall in a brief administrative ceremony and yet leave that event with a marriage that is, from the state’s perspective, just as valid as one performed in the most elaborate cathedral.

And so we ask again: Why does the state bother to involve itself in marriage – even to create a separate institution like civil marriage – when it seems that marital love could be left as a private matter?  Cott said the state does so because it uses these two-person unions as a vehicle for fulfilling the state’s own needs, the most important of which is creating stable households that assist in caring for and governing the populace.

Cott did say that, over time, the state has used civil marriage to support other state interests – including promoting procreation, channeling sexual activity, and establishing the legitimacy of children, all goals that the Perry defendants have insisted are the most fundamental purposes of civil marriage. In contrast, Cott’s research concludes that supporting and encouraging household units has always been civil marriage’s paramount purpose. In her testimony, Cott emphasized that this objective dates to colonial times: In early America, for example, households were the country’s fundamental economic units, because they organized the production of food, clothing, and shelter. Thus, early state governments authorized marriage because, when governed by responsible male heads, marital households promised the country economic stability.

In conclusion, Cott noted that marriage has also created convenient units through which the state can funnel economic benefits. The U.S. government began doing so with the New Deal and amplified this approach with the Social Security Act, which includes monetary advantages for married couples. With these benefits, the state is encouraging marriage by bundling social benefits with the institution’s legal obligations. “The fact that the state is involved in granting these kinds of benefits and legitimacy to the marital family tends to lend a prestige, a status to that institution that no informal marriage has ever approximated,” Cott said.

She also provided a short rejoinder to Judge Walker’s perhaps tongue-in-cheek solution to the “problem” that Perry presents. Several hours after Walker conjectured the effects of having the “state get out of the marriage business,” Cott reminded the court that marriage has a high cultural value, partly because it has been endorsed by the state, used as its device, and also featured in our novels, folktales, songs, and movies for hundreds of years. Marriage’s cultural polish is further enhanced by centuries of ceremony – the white dress, the throwing of rice, “the happy couple parading down the aisle,” Cott said. Thus, either by design or by default, our culture communicates that this destination, and no other, should be gained by any couple who love one another, and even the extension of identical legal rights to an alternative status would never equalize that status with marriage. “Marriage has been the happy ending to the romance,” Cott said. “There really is no comparison, because there is nothing that is like marriage except marriage.”

At the moment, California’s statutes and court decisions do not adequately address this question, so the federal court has requested additional guidance from the California Supreme Court.  On Wednesday, the California court unanimously announced its intent to  answer.  The court also said that it would expedite the matter and require submission of the parties’ first briefs in March.

The question of who can defend a ballot measure on appeal is important because two California administrations have refused to support Proposition 8.  First, former California Governor Arnold Schwarzenegger and former Attorney General Jerry Brown chose not to defend the ban when gay marriage advocates filed Perry in 2009.  Both officials said they doubted the voter initiative would pass constitutional muster.  Then, in 2010, California voters chose Brown as their new governor and installed Attorney General Kamala Harris.  These officials are continuing the no-defense policy now that the federal case is in appellate court.

In addition, the Ninth Circuit has already ruled that Imperial County, its Board of Supervisors, and a deputy county clerk have no standing to appeal Judge Vaughn Walker’s August decision, which declared Proposition 8 unconstitutional. This means that the only organization left to champion the cause is ProtectMarriage.com and its supporters, who wrote Proposition 8 three years ago and gathered signatures to place it on the 2008 ballot.

If the California Supreme Court says that these people have standing to appeal, then the case will return to the Ninth Circuit, which will address the constitutional dimensions of same-sex marriage in California.  The case will also be back on track for a potential hearing in the United States Supreme Court.

However, if the California Supreme Court says that Proposition 8’s supporters do not have standing, then Judge Vaughn Walker’s ruling might remain in place, and California’s same-sex marriages might begin again.  The case could end there.  Another alternative is that the Ninth Circuit will determine that the proponents still have appellate standing under federal law and that the court will continue to hear the case.

At a minimum, the California Supreme Court’s unanimous decision yesterday gives a timetable for the next chapter in this story.  The court stated that it would like to hold oral argument as early as September 2011.

Click here to read the California Supreme Court order.

The proceedings are expected to last for about two hours. During the first hour, lawyers will argue whether Proposition 8 supporters have standing to appeal U.S. District Judge Vaughn Walker’s August decision, which struck down California’s gay marriage ban.  During the second hour, attorneys will address whether the ban violates the U.S. Constitution.

Both sides expect to weather vigorous questioning from a three-judge panel featuring Ninth Circuit judges Stephen Reinhardt, Michael Hawkins, and N. Randy Smith.

The panel will sit in Courtroom One of the James R. Browning U.S. Courthouse in San Francisco.  Public seating will not be available there.  However, several media outlets, law schools, and courthouses are hosting live broadcasts of the proceedings.  Please click below for details on how to attend or tune in.

TELEVISION: C-SPAN will broadcast the proceedings nationwide.  Bay Area residents can view that feed on Channel 15 or tune in to another broadcast on ABC’s Channel 7.

RADIO: California Public Radio will air the arguments in a special broadcast of The California Report, which can be heard on 35 California stations, including 88.5FM in San Francisco and 89.3FM in Sacramento.  The proceedings will also be available on 810AM, KGO Newstalk.

ONLINE:  The outlets listed above will stream the proceedings on their websites.

LAW SCHOOLS: UC Berkeley School of Law will host a live, closed-circuit feed of the proceedings in Room 115.  Other law schools hosting on-campus viewings include Harvard, NYU, Stanford, University of Arizona, UC Hastings, UCLA, University of Chicago, and Yale.

COURTHOUSES: Federal courthouses in the following cities will host viewings for the public:

Boston, MA:  Courtroom 11, 5th Floor, John Joseph Moakley U.S. Courthouse, 1 Courthouse Way.

Brooklyn, NY:  Courtroom 6A, 6th Floor, Theodore Roosevelt U.S. Courthouse, 225 Cadman Plaza East.

Pasadena, CA:  Mezzanine Conference Room, Richard H. Chambers U.S. Courthouse, 125 South Grand Ave.

Portland, OR:  Pioneer Courtroom, U.S. Pioneer Courthouse, 700 SW Sixth Avenue.

San Francisco, CA:  Overflow areas of the James R. Browning U.S. Courthouse, 95 7th St.  Another viewing will be hosted in the Ceremonial Courtroom located on the 19th Floor of the Philip Burton Federal Building & U.S. Courthouse, 450 Golden Gate Ave.

Seattle, WA:  Courtroom 1, 8th Floor, William K. Nakamura U.S. Courthouse, 1010 Fifth Ave.

Please click below to access these multi-media elements.

Proposition 8 Supporters’ Opening Brief, Filed 09/17/10

Proposition 8 Opposition’s Answering Brief, Filed 10/18/10

Proposition 8 Supporters’ Reply Brief, Filed 11/01/10

Proposition 8 Supporters’ Reply Brief – Exhibit A, Filed 11/01/10

Proposition 8 Supporters’ Reply Brief – Exhibit B, Filed 11/01/10

Much of Perry v. Schwarzenegger is about these words and who has the right to use them.  The parties agree that these are universal terms – understood in every language and culture, but they disagree about whether participants in a gay relationship should use the terms in describing each other.

Interestingly, these terms – husband, wife, marriage – were not the only important words in Perry, which often demonstrated the power of language itself.  Witnesses spoke of the insulting ambiguity in the word “partner.”  Their fear in hearing the word “abomination.”  The moment one of them decided to search his dictionary for the word “homosexual.”  Indeed, to a great extent, Perry is not just about men, women, and marriage but about the effects that all words have on the people who use and hear them.

Some of the most poignant testimony of this kind came from plaintiff witness Helen Zia, an author and former magazine editor.  Zia, 57, pictured above, described the changes that occurred when, one day, she was able to call her love of 17 years her “wife.”

“It was as though we had been … told to sit in the back of the bus and accept this kind of lesser status of domestic partners,” Zia said in January.  But after Zia married, “We experienced a feeling of what equality is. Instead of having to go to the fountain that is just for gay and lesbian people, we could go to the fountain that formerly said, ‘Heterosexuals Only,’ and we tasted the water that was sweeter there.”

Zia recalled previous difficulties using the word “partner” to describe Lia Shigemura, the woman she first married in 2004.  At work engagements, new acquaintances would inevitably ask, “Oh, partner in what business?”  They did not always understand Zia’s stock answer – that she and Shigemura were “partners in life.”  “Life insurance?” came the reply.

Zia praised the simplicity that the words “wife” and “daughter-in-law” later brought to her family.  Her marriage to Shigemura gave everyone access to a timeless vocabulary that allowed her to describe their familial relationships easily and accurately.  This was particularly important to Zia’s family of Chinese immigrants: Many Asian languages do not have a word for “gay,” said Belinda Dronkers-Laureta, director of Asian & Pacific Islander Family Pride.  “There is a word that they use, but it’s a derogatory word and a metaphor: It means a man acting as a woman.”

Thus, Zia’s mother, who prefers to speak in Chinese, had to tread carefully when she spoke with family friends about the woman Zia brought to family gatherings.  “My mother, before we would marry, would struggle and just say, ‘She’s Helen’s friend,’” Zia said, though the word was clearly inadequate.  “She must be a really good friend, because she’s been coming to these events for the last 17 years,” Zia quipped.  After their wedding, things changed.  “My mother would say, ‘This is my daughter-in-law,’ and they would get it,” Zia said.  “Whether they approved or disapproved, it didn’t matter.  They got it.”

Simple access to this language and its cultural significance also changed interactions between members of the two families.  Even though the women have been a couple for 17 years, it was only after they wed that Zia’s brother started to visit Shigemura’s father, who lived a five-minute drive from him in Hawaii.  It is only now that Zia’s brother and Shigemura’s sister, who run in the same Hawaiian social circles, publicly acknowledge that they are “in-laws.”  And it is only because the couple is now married that, when Shigemura’s father died last year, Zia knew that the obituary would include her and that she would bear not only familial responsibilities but also the honor of sitting in the funeral’s front row.  “I wasn’t some partner in business or partner in life,” Zia recalled. “I was her spouse … and there was no ambiguity about it.”

PUTTING A NAME TO IT

Clarity does not only come from words we have always known and are finally able to use.  Perry also reminds us of the power in harnessing a new vocabulary to articulate amorphous intuitions.  For example, Ryan Kendall, a gay man from Colorado Springs, testified that his parents told him when he was a child that homosexuals threatened their family, but Kendall didn’t know what the word “homosexual” meant.  He only knew that it “was a big, long, scary word,” and even though he was aware of his same-sex attractions, he didn’t realize the word described him.  Kendall realized he was “homosexual” when he was 11 or 12 years old and decided to scan the word’s dictionary entry.  “I remember reading the definition – something along the lines of a romantic attraction between members of the same sex, and it slowly dawned on me that that’s what I was,” Kendall said.

Zia’s identification with the word “lesbian” was more delayed.  She was in college before she heard the word and realized it might describe her.  She waited more than 10 years to act on her attractions, though, partly because she was scarred in her mid-20’s by “a lesbian trial.”  For this event, Zia was unsuspectingly called to a meeting of Asian and African-American community organizers, with whom she had been working to end federal discrimination against women and minorities.  The organizers told Zia that they had noticed her working alongside several lesbians and then stressed that they “did not have” homosexuals in their communities.  Finally, the organizers came to the point: “So, Helen. Tell us: Are you a lesbian?”

At first, Zia didn’t know how to answer the question.  She knew the dictionary definition of lesbianism and that she felt sexual attractions to women.  But was that enough?  Zia ticked through other possible requirements: She didn’t have a girlfriend.  “I didn’t have a membership card that said I was a lesbian,” she recalled.  “I didn’t get a toaster oven or a congratulatory message saying, ‘Welcome to lesbian-hood.’” And so, at this meeting, Zia denied her sexuality.  She declared that she was not a lesbian and, shortly thereafter, burned more than a decade’s worth of diaries that she feared might someday out her.

Recently, the meanings of words have been more obvious to Zia.  Dozens of people approached her two years ago, when she was distributing “No on 8” fliers.  With looks of derision, they called her a “dike” and “You f—ing dike.”  Others told her she would “burn in hell.”  And that she was “an abomination.”  And that, “With this, no more people.  No more human race.”  Zia said that she felt these comments “endangered” her.

Another hurtful label arrived not too long ago: “Invalid.”  That’s how the City and County of San Francisco described her 2004 marriage to Shigemura.  The letter containing this news arrived after the California Supreme Court ruled that Mayor Gavin Newsom had overstepped his bounds in allowing same-sex couples to wed in the first place.  “We felt pretty horrible,” Zia said in January.  “We felt that it wasn’t just a statement that our marriages were invalidated: We felt that … we, as human beings, had suddenly become invalidated.”

Several years later, Zia and Shigemura returned to the language of marriage: With the blessings of Newsom and the California Supreme Court, they wed again in 2008.  Afterward, Zia’s niece greeted Shigemura with a hug and demonstrated the power of another word. “Auntie Lia!” she exclaimed.  “Now you’re really my auntie.”

In January, Sanders took the stand to confess his own anti-gay beliefs, to recount his change of heart, and to say why it is important for government to disown prejudice of all kinds.  He was a unique Perry witness for two reasons: First, he had the courage to admit his own prejudice.  Second, although he now supports gay marriage, Sanders represents a demographic that is not particularly likely to do so.

But while Sanders’ story was unique at trial, it is not unique in American society.  If we believe public opinion polls showing that gay marriage is moving toward moderate acceptance, then his story of conversion can be told by millions of Americans.  As such, it is emblematic of a great social change and deserving of special attention.

SEEING PREJUDICE

Sanders’ testimony was unique first because, in a parade of nearly 20 Perry witnesses, he was the only one to confess an anti-gay prejudice.  This is somewhat surprising considering the plaintiffs spent nearly two weeks claiming that widespread discrimination entitles gays and lesbians to special legal protections.  Their expert witnesses did describe how gay people had once been outlawed from working with children, banned from holding government jobs, and censored from television scripts.  Today, gay soldiers still risk losing their commissions when their sexual orientation is made public, and witness Ryan Kendall told us how he and other gay children are sent to conversion therapy, intended to convert gay people into heterosexuals.  Yet despite voluminous testimony about the prevalence of anti-gay prejudice, Sanders was the only witness to admit having furthered it himself.  Thus, his testimony took on a surprising significance: To have concluded without it might have been akin to have closed a criminal trial without giving the jury a chance to inspect the murder weapon.  And indeed, Sanders might have surprised the gallery with what he said about anti-gay prejudice: He said his had been unconscious.

For years, Sanders had considered himself sympathetic to gay rights.  As a police officer and mayor, he had investigated hate crimes and run high school diversity workshops.  He chaired the National Conference for Christians and Jews, a group devoted to fighting bigotry and racism.  However, it was only a meeting with gay friends and neighbors that showed Sanders what he described as his own hypocrisy regarding the issue of gay marriage.

Sanders laid the groundwork for this meeting in 2005, when he won the San Diego mayoral race on a platform that favored civil unions.  Two years later, he was caught in the headlights of the gay marriage issue when the San Diego City Council directed their city attorney to file a legal brief in support of same-sex marriage.  Sanders had to decide whether he would veto the resolution.  He initially decided he would and, as a courtesy, called gay organizers and friends to inform them of his decision.

“What I expected was that they’d say civil unions are fine,” Sanders said about the meeting.  But instead, his friends and neighbors were outraged.  One of Sanders’ neighbors reminded him that they often exchanged pleasantries when she walked by with her partner and children.  Didn’t he realize they were a family just like his?  Another friend simply declared that she loved her children as much as Sanders loved his and that her children deserved to have married parents, just as Sanders’ children had.  “I was absolutely shocked at the depth of the hurt, the depth of the feeling,” Sanders said.  “I realized how close I had come to really closing the door on things that were unbelievably important to them as a group of people.”

That night was a turning point for Sanders.  In reflection, he was unnerved to conclude that his choice to exclude same-sex couples from marriage could only be explained by an unconscious prejudice.  “It didn’t mean I hated gay people – didn’t mean I didn’t think the community was equal in every way,” Sanders said.   “It simply meant that I hadn’t understood the issue clearly enough.”

At a press conference the next day, Sanders cried as he announced that, despite his campaign pledge, he now favored marriage for same-sex couples.   He said vetoing the City Council’s resolution would be inconsistent with values he had pursued for 30 years and that, instead, he had decided “to do what I think is right and to take a stand on behalf of equality and social justice.”

CLOSE TO HOME

Sanders told the court in January that his press conference wasn’t emotional only because he had nearly forsaken his neighbors and fellow community leaders: He was also devastated to discover he had nearly forsaken his own daughter, Lisa, who is gay.

On the stand, Sanders recounted how Lisa had told him during her sophomore year of college that she was a lesbian and in a lesbian relationship.  Sanders said his reaction was one of “overwhelming love” and that he had been proud of Lisa for approaching him.  “I realized how difficult it was to tell your parents that you were a lesbian,” Sanders reflected.  Lisa subsequently supported Sanders’ choice to endorse civil unions instead of marriage for gay couples: Considering her father’s conservative base, she believed this was politically palatable and that he should not jeopardize his re-election.

But at the press conference, Sanders cleared his throat and cried hardest when he declared that close family members and friends, including Lisa and members of his personal staff, were gay.  Later, he said he cried because he realized that he had come “very close to showing the prejudice that I obviously had.”  “In the end, I couldn’t look any of them in the face and tell them that their relationships … were any less meaningful than the marriage I share with my wife,” Sanders concluded.

SANDERS AS EVERYMAN

Sanders’ story is instructive because, while his account is particularly dramatic, his change of heart is not unique.  Instead, he and millions of others may represent the fulcrum of public opinion on which gay marriage is turning.  For example, just two months ago, a CNN poll became the first to report that a narrow American majority now supports same-sex marriage.  In contrast, only about 25 percent of those polled in 1996 believed that gay and lesbian couples should have the right to marry.  Similarly, polls show that more than half of all Californians now support the rights of same-sex couples to marry, while slightly less than half did so when they approved Proposition 8 in 2008.  Given this shift in public sentiment, it is not an exaggeration to think that Sanders might personify the crest of a sea-change: He did what people all over this country have been doing – change his position to support marriage for same-sex couples.

If Sanders does personify the crest of an American social change, he does so also because of who he is.  The second way in which Sanders was a unique Perry witness is that, of all witnesses, he represented a demographic that is perhaps most reflective of the United States as a whole.  Of nearly 20 people called to the stand, Sanders was the only one who is neither gay nor an academic expert.  Instead, Sanders is a Republican.  A former police officer.  A broad-shouldered man who is married to a woman and who heads a family with two, grown children.  And perhaps with the exception of his previous divorce, his family life epitomizes what the Perry defendants say they are trying to protect.  Of all trial witnesses, then, Sanders may uniquely represent the kind of person who gay rights advocates must reach and convert if they are to change the culture — and not just the law — of the United States.

GOVERNMENT’S ROLE

Interestingly, Sanders himself made a compelling case for why United States courts should help this process along.  On the stand, he described his 26 years as a San Diego police officer and said this work had exposed him to severe anti-gay beatings, slurs, and robberies.  Indeed, as recently as 2006, a gay San Diego man was killed because of his sexual orientation.  Over time, Sanders concluded that a long line of city leadership was partly to blame for these crimes.  “If government tolerates discrimination against anyone for any reason, it becomes an excuse for the public to do exactly the same thing,” Sanders said, mentioning city leaders who had disparaged and denied basic rights to the gay and lesbian community.   This is why Sanders ultimately supported the City Council resolution in favor of California’s In re Marriage cases.  “It’s in the interests of government” to eliminate this kind of crime he said at his press conference, and when it comes to gay people, “I want their relationships protected under the law.”

Later, Sanders’ stand became national news.  Video of his press conference went viral, and he received letters and emails from all over the world.  As Sanders put it, these notes not only comment upon the choice he made — and that others are now making.  They also seem to be forever reminding this burly, former police officer “that I cry in public.”

Legal analysts have questioned whether backers of Proposition 8 have legal standing to appeal the Aug. 4 ruling because they are “intervenors,” not defendants, in the case (the state refused to defend Prop. 8). Judge Vaughn Walker said they do not have standing, in his view. The appeals court acknowledged that issue today, telling both sides to include in their opening briefs “a discussion of why this appeal should not be dismissed for lack of Article III standing.”

To get legal standing under Article III of the U.S. Constitution, Prop 8 backers would conceivably need to show that Judge Walker’s ruling allowing same-sex marriages directly harms them.  But Prop. 8 backers said in a recent court filing that California law “allows proponents to defend initiatives they have sponsored when government officials ‘might not do so with vigor’ in order ‘to guard the people’s right to exercise initiative power.’ ”

“Proponents also have standing to appeal because of their own particularized interest in defending an initiative they have successfully sponsored, an interest that is created and secured by California law,” the filing said.

But opponents of Prop. 8 disputed that view. “The Supreme Court has never ‘identified initiative proponents as Article-III-qualified defenders of the measures they advocated,’ ” they wrote in their brief.

The opening brief is due Sept. 17th.

Related:
Court Prop 8 website

PDF of today’s order

Intervenors reply in support of stay (pdf)

Text of the order:

Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)