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Can a Berkeley Lesbian Couple Make History?

With the help of a legal dream team, Kris Perry and Sandy Stier hope the Supreme Court will invalidate all anti-gay-marriage laws.

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When Kris Perry and Sandy Stier decided to challenge Proposition 8, it was clear that the lesbian couple from Berkeley was seeking much more than the right to get married in California. Perry and Stier, after all, had joined a team headed by powerhouse attorneys Ted Olson and David Boies, two of the most respected litigators in the nation. As such, it was immediately clear that the case would end up in the US Supreme Court and perhaps in the history books.

The legal brief that Olson and Boies filed on behalf of Perry and Stier in the Supreme Court last week proved definitively that making history is exactly what they have in mind. In it, the legal dream team doesn't just ask the high court to overturn Prop 8, they passionately urge the justices to invalidate all anti-gay-marriage laws in the United States. And if they're victorious, and same-sex couples finally win the right to wed in every state, their legal brief could go down as one of the most important ever written.

"This case is about marriage, 'the most important relation in life," Olson and Boies declared in the opening sentence of their 54-page brief, quoting from an earlier ruling by the high court, "a relationship and intimate decision ... that is central for all individuals' liberty, privacy, spirituality, personal autonomy, sexuality, and dignity; a matter fundamental to one's place in society; and an expression of love, emotional support, public commitment, and social status."

Olson and Boies then go on to eviscerate the claims made by the anti-gay marriage groups that are asking the Supreme Court to overturn a lower court's ruling that invalidated Prop 8. Olson and Boies note that the basic argument proffered by the Prop 8 proponents is that states have the right to keep gay marriage illegal in order to promote heterosexual procreation, and point out the numerous contradictions readily apparent in that argument. "Indeed, proponents' state-centric construct of marriage means that the State could constitutionally deny any infertile couple the right to marry."

Olson and Boies then further explore the absurdity and cruelty of the pro-Prop 8 argument, noting that denying gays and lesbians the right to marry stigmatizes them and their families and "generates a feeling of inferiority ... that may affect their hearts and minds in a way unlikely ever to be undone." The proponents "have never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry," the brief continues. "Indeed, the only harms demonstrated ... are the debilitating consequences Prop 8 inflicts upon tens of thousands of California families, and the pain and indignity that discriminatory law causes nearly 40,000 California children currently begin raised by same-sex couples."

Olson and Boies then take their legal argument to its next logical step, comparing Prop 8 and other anti-gay-marriage laws with discriminatory statutes previously struck down by the court for violating the Due Process and Equal Protection clauses of the Constitution — from segregation laws to ones that banned interracial marriage. "[T]he Fourteenth Amendment could not tolerate those discriminatory practices, and it similarly does not tolerate the permanent exclusion of gay men and lesbians from the most important relationship in life."

But despite the absurdity of the pro-Prop 8 argument and the bigotry inherent in anti-gay marriage laws, there's no guarantee that the rightward-leaning court will choose to issue a sweeping decision later this year. And so Olson and Boies have also asked the court that, at minimum, it uphold the Ninth Circuit Court of Appeals' decision overturning Prop 8. That way, gay marriage will at least be lawful in California.

Of course, there's no way to know at this point if the high court will even do that. If it does, it will be a victory in the fight against anti-gay bigotry, but by no means a complete one — not even for California same-sex couples, unless the high court also sides with the Obama Justice Department.

As of Monday, the DOJ had not yet decided whether to intervene on behalf of Perry and Stier and the other couple involved in the case, but late last week, it urged the Supreme Court to also throw out the federal anti-gay-marriage law. Although not as powerfully written as the Olson and Boies brief, the DOJ's writ employs many of the same arguments in its critique of the so-called Defense of Marriage Act, or DOMA. The DOJ notes, for example, that it's the consensus of experts "that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents" and that DOMA "does nothing to promote responsible opposite-sex parenting."

The Obama brief also notes the ugly ironies in denying same-sex couples basic legal rights — even in states that have legalized gay marriage. DOMA, for example, not only forces gays and lesbians to pay higher taxes because they can't file with the IRS as married couples, but it also denies a wide range of benefits to the same-sex spouses of federal employees and military service members. A soldier, in short, can give up her life for her country, but her wife is barred from receiving her survivor benefits and from being buried next to her at a national cemetery.

In essence, the Obama administration is asking the high court to leave the question of gay marriage up to the states, arguing that if a state legalizes same-sex nuptials, then the federal government has no authority to deny rights to couples in those states. If the Supreme Court agrees with this reasoning and invalidates Prop 8 at the same time, then same-sex couples really will have equal rights in California. And that will be a significant victory — although not the sweeping decision that Olson and Boies want and what gays and lesbians nationwide truly deserve.

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