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Guide: The Federal Prop 8 Trial

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The Day of Decision Protest in Hollywood on May 26, 2009 (more photos here) | Photo by Tom Andrews/LAist

It's January 11th, 8:30 a.m. and the historic case challenging Proposition 8 is just beginning in San Francisco with opening statements followed by testimony from the plaintiffs, who are two couples that were denied marriage licenses because of Proposition 8. A lot has happened since same-sex marriage was legalized in California back on May 15, 2008; so let's recap and dive into the case.

What is Prop 8?
Prop 8 was the California ballot initiative in November of 2008 that banned same-sex marriage, subsequent to a state Supreme Court ruling legalizing the marriages earlier that year on May 15th. One month later on June 16th, the first of 18,000 gay couples were able to tie the knot.

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What happened after Prop 8 became law?
Counties immediately stopped issuing marriage licenses to same-sex couples, but 18,000 couples were already married, leaving them in a murky grey area. Challenged on the validity of Prop 8, the state Supreme Court in May of 2009 (aka the "Day of Decision") ruled that the Prop was legal, based on the state's constitution, and that the already-married couples would remain married (but if they divorced, they could not re-marry).

What is today's case about?
The federal trial is about the unconstitutionality of Proposition 8, which in part takes into account how it violates the Equal Protection Clause of the 14th amendment, which says that "no State shall deprive any person of life, liberty or property, without due process of law; nor deny to any person the equal protection of the laws."

"The defendants have the burden of demonstrating that Prop. 8 is narrowly drawn to serve a compelling government interest," explained a news release from the American Foundation for Equal Rights, which assembled the legal team to fight the Prop.

In addition to violating the 14th Amendment, the suit alleges that Prop 8:

  • Violates the Due Process Clause by impinging on fundamental liberties.
  • Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
  • Discriminates on the basis of gender.
  • Discriminates on the basis of sexual orientation.

Who filed the case?

Plaintiffs and couple Kris Perry & Sandy Stier of Berkeley | Photo by Diana Walker
Two gay couples are named plaintiffs in the case.

Kris Perry and Sandy Stier have been together for nine years and are the parents of four boys. Perry is Executive Director of First 5 California, a state agency that promotes education and health for children under five. Stier is Information Technology Director for the Alameda County Behavioral Health Care Services Agency. Perry and Stier first tried to marry in 2004, after the City of San Francisco began issuing licenses. They live in Berkeley, CA.

Plaintiffs and couple, Paul Katami and Jeff Zarrillo of Burbank | Photo by Diana Walker
Paul Katami and Jeff Zarrillo have been together for eight years. Katami is a fitness expert and business owner who graduated from Santa Clara University before receiving his graduate degree from UCLA. Zarrillo is the General Manager of a theater exhibition company. Having wanted to marry each other for more than two years, they considered options including traveling to other states for a "civil union," but felt any alternative fell short of marriage. They live in Burbank, CA.The City and County of San Francisco, led by City Attorney Dennis Herrera and Chief Deputy City Attorney Therese Stewart, are supporting the plaintiffs’ team as co-counsel, with a specific focus on the negative impact Prop. 8 has on government services and budgets. Herrera and Stewart led the legal battle toward the California Supreme Court decision that struck down California’s previous same-sex marriage ban.

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Who are the defendants?

Governor Arnold Schwarzenegger, Attorney General Jerry Brown, among a handful of other state and county officials were named defendants in their official capacities (that's why this case is called Perry v. Schwarzenegger). However, Schwarzenegger and Brown both filed briefs that did not dispute the unconstitutionality of Prop 8.

With no named defendant parties actually willing to defend Prop 8, the official proponents with the help of the Alliance Defense Fund stepped in, becoming the defendant-interveners. Those officially named are Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson and Hak-Shing William Tam, who requested on Friday to be withdrawn from the case and on 8, A Project of California Renewal.

And the legal players?

Most notably are the lawyers representing the plaintiffs. Well known for facing each other in Bush v. Gore, Theodore Olson and David Boies have joined together and are leading a legal team assembled by the American Foundation for Equal Rights. The ACLU, Lambda Legal, and National Center for Lesbian Rights (NCLR) are participating in the case as amici (friends of the court) in support of the plaintiffs. The latter two were denied by the court to be interveners.

U.S. District Judge Vaughn Walker (AP Photo/San Francisco Daily Journal, S.Todd Rogers)
Andy Pugno, a Folson, CA attorney, is general counsel for with Charles Cooper at the helm as lead counsel. In 2000, Pugno "served as the chief attorney for the committee in favor of Proposition 22, sponsored by Knight, which defined marriage as being only between a man and a woman," according to Total Capitol.Presiding over the case is Chief Judge Vaughn R. Walker of the U.S. District Court, Northern District of California.

How long will the trial last?
It is expected to take two to three weeks.

How can I stay up to date on the trial?
The trial will not be broadcast live over television stations, but there are some options to stay up to date in addition to traditional news media reporting from the trial (You can follow updates for this trial on LAist via the tag Prop8FedTrial1).

On Twitter, follow @AmerEqualRights and @protectmarriage for live tweets from each side of the case. Additionally, the Courage Campaign is live blogging the case at

[UPDATE: Although lower courts ruled in favor of a live video and audio feed to courthouses in addition to a delayed upload to YouTube, the Supreme Court blocked both measures until at least Wednesday, pending a final decision. The below does not hold true at the current moment]

As for watching the trial from afar, a pilot program has enabled the first-time use of a live video and audio feed for viewing in courthouses in California, Oregon, Seattle and New York City (see list here & scroll down). "Because this is an experimental effort, the court cannot guarantee the reliability, accuracy or availability of the audio/video presentation," explained a 9th Circuit Court press release. "Further, Judge Walker has reserved the right to terminate any part of the audio, or video, or both, for any duration, or to terminate the complete experiment at any time." Access to the locations will be on a first-come-first-served basis and no photographs or recordings of the case will be allowed.

A delayed upload of the trial to YouTube is also expected.

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