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Fourteen Years After Hawaii: New Freedom to Marry Case in California; Same Old, Same Old From Opponents

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The first full trial on gay people's freedom to marry, complete with evidence and cross examination of witnesses, prominent lawyers squaring off over a state's discrimination, experts testifying on the history of marriage and the well-being of children, concerns and debate over timing, and television coverage of the trial spurring national conversations....

Perry v. Schwarzenegger, Ted Olson's current challenge to California's discriminatory Prop 8? No, the first was Hawaii's historic Baehr v. Miike, which launched the ongoing national -- indeed, international -- movement to end exclusion from marriage. The groundbreaking 1996 trial in Honolulu featured weeks of testimony, all covered on Court TV, followed by months of legal argument, briefing, and deliberation, and then the tectonic ruling by the highly respected Judge Kevin Chang, based on the evidence and argument, in favor of the freedom to marry.

What's striking in the California courtroom now is how the anti-gay forces, 14 years and tens of millions of dollars later, have come up with nothing to alter Judge Chang's finding of no "sufficient credible evidence that demonstrates that the public interest in the well-being of children and families, or the optimal development of children would be adversely affected by same-sex marriage. Nor has the opposition demonstrated how same-sex marriage would adversely affect the public fisc, the state interest in assuring recognition of Hawaii marriages in other states, the institution of marriage, or any other important public or governmental interest."

In the first days of the Perry trial before Chief District Judge Vaughn Walker, a Reagan and Bush appointee to the federal bench, America heard compelling testimony from historians George Chauncey and Nancy Cott, relating how the history of gay people's exclusion from marriage parallels other denials and discrimination within marriage that we as a society moved to change. Another expert testified about how same-sex and different sex couples function, while yet another reviewed the clear and unrefuted evidence on the fitness of gay parents and the successful outcomes we see in the children they are raising.

The presentations, cross-examination, and bottom-line conclusions all uncannily echoed what unfolded in the Hawaii courtroom in 1996, when national experts in adoption and child-raising and other authorities testified and submitted briefs to enable the judge to assess the justifications put forward for denying gay people the freedom to marry. As in Judge Walker's courtroom today, the anti-gay side in Baehr tried to suggest that same-sex couples and their families are somehow less qualified, less committed, and less entitled to equality under the law. As in Hawaii, the anti-gay side in Perry is invoking conjecture and diversionary claims, and proposing that the judge uphold marriage discrimination based on speculations and double-standards. In Perry, witnesses for the anti-gay side are reported to be dropping out, or making concessions that support the pro-marriage side; in Hawaii, too, as they learned more about the kind of assertions being made to defend marriage discrimination, some of the opposition experts withdrew or gave testimony that actually supported our case for the freedom to marry.

Some things, of course, did change between the Hawaii case and the trial now underway in California.

When Dan Foley, a non-gay lawyer and fierce champion of equal rights, and I appeared as co-counsel before Judge Chang, same-sex couples could not marry anywhere in the world. Now Judge Walker and the court of public opinion can weigh not just the testimony being put forward by the lawyers, but the evidence and lived experience of gay couples having won the freedom to marry in five U.S. states and the District of Columbia, as well as eight countries and other jurisdictions on four continents, with more to come. Numerous states and nations have renounced past false claims about same-sex couples and created legal mechanisms on the road to marriage such as partnership and civil union. One of those states, California, indeed, acknowledged a constitutional mandate to end marriage discrimination and married over 18,000 couples until the freedom to marry was selectively stripped away from one group of people, the intolerable abridgement of our nation's commitment to equal protection that is at the heart of the Perry case.

Since Hawaii, the solid scholarship cited by Judge Chang on parental fitness and the well-being of children has grown into a mountain of evidence and authority as every leading mainstream child-welfare, public health, and parenting organization -- including the American Medical Association, the American Psychological Association, the National Education Association, the National Association of Social Workers, and our nation's kids' doctors, the American Academy of Pediatrics -- has endorsed the freedom to marry. In 2009, relying on this evidence, the U.S. Department of Justice finally caught up with Judge Chang in repudiating the claim that denying marriage to same-sex couples is somehow in the best interests of children.

Another big change in the marriage landscape is the addition of ever-more diverse and even surprising voices for equality speaking out in support of gay people's freedom to marry -- including the lead counsel in Perry, Ted Olson, George W. Bush's former top lawyer. Along with his co-counsel and former Bush v. Gore opponent, David Boies, Olson has emerged as an eloquent freedom to marry advocate making the case to the public, including, one assumes, many who consider themselves, like him, "conservatives," who now will have to, in Lincoln's words, "think anew" the case for ending exclusion from marriage.

While Dan Foley and I were in trial in Hawaii, Congress was passing the federal so-called "Defense of Marriage Act." Today, Ted Olson's support for the freedom to marry puts him alongside other new voices for equality, including the Republican former Congressman who wrote the so-called "DOMA," Bob Barr, and the Democratic former President, Bill Clinton, who signed it into law -- both of whom in 2009 joined in calling on Congress to pass the "Respect for Marriage Act" to end federal discrimination against married same-sex couples.

One difference between Perry and Baehr is that the Hawaii freedom to marry case advanced in state court under the state constitution, while Perry is a challenge to California's Prop 8 under the federal constitution, in federal court. The decision to bring the case raised concerns about timing and risks; I stated my position in a piece in the New York Times.

Disagreements over timing are a familiar feature of social justice movements and are not the main story here. What really matters is all the ways in which denying the freedom to marry to committed, loving couples harms families while helping no one. As described in Why Marriage Matters: America, Equality, and Gay People's Right to Marry, in addition to the stigma of inequality and deprivation of the clarity, security, and shared vocabulary of commitment that marriage brings, "exclusion from the freedom to marry unfairly punishes committed same-sex couples and their families by depriving them of critical assistance, security, and obligations in virtually every area of life, including, yes, even death and taxes."

There are, of course, many twists in the road ahead, and we don't know and can't control, whether or when this case or some other will make it to the Supreme Court, or who the justices will be at the time. What we do know, and what we can control, is our personal and collective determination to use every precious day between now and whenever a case does reach the Court to do the work needed to maximize the chances of victory. After all, one of the lessons from the Hawaii case (and from California) is that just prevailing in court is not enough, and no court case is a substitute for the mix of work and engagement needed.

The path to nationwide victory is continuing to win the freedom to marry in more states, folding in federal gains (which work in the states best fosters), and continue winning over hearts and minds. Freedom to Marry is committed to working with all the people and all the groups -- from litigators to organizers, from prominent voices for equality to each of us in conversation with our friends and loved ones -- tackling state and federal discrimination and building a majority for marriage.

One other thing that hasn't changed since Hawaii is the failure of the anti-gay side to come up with anything better to defend the denial of marriage than they had in 1996. In a way, this is surprising, given that their lead attorney, Charles Cooper, was also the hired-gun brought in by the state of Hawaii to shore up its case in 1990's. It's not as if Cooper hasn't had time to think of an argument -- so an exchange he had with Judge Walker was quite telling: Judge Walker asked, "What would be the harm of permitting gay men and lesbians to marry?" Cooper, replied, "Your Honor, my answer is: I don't know ... I don't know." Fundamentally, of course, their inability to defend the denial of marriage with real evidence and logic is not surprising; the reason smart lawyers like Mr. Cooper don't give a better answer to why marriage discrimination should be allowed to continue is that there isn't one.

Our Hawaii case was shown to the public on Court TV, and produced a sea-change in the public support for freedom to marry, with changes in the law and momentum that continue to this day, advancing the cause of equality and inclusion. No wonder the anti-gay opponents didn't want the Perry trial televised or available on YouTube, and are fighting to prevent the public from hearing the bogus and flimsy fear-mongering that is all they have left to prop up discrimination in marriage. The more those of us committed to equality and fairness work together and talk about why marriage matters, the closer America comes to ending the denial of the freedom to marry.