Elected officials bail on U.S. marriage law

California Attorney General Jerry Brown

In a case with implications for the entire country, California's Proposition 8 defining marriage as between one man and one woman goes on trial Monday with only private citizens speaking up for the voter-passed constitutional amendment – because state officials have refused to defend it.

Much is riding on the case of Perry vs. Schwarzenegger, for the lawsuit is petitioning a federal court to overturn not just a law, but a constitutional amendment passed by the people and affirmed by the state's Supreme Court. A victory for same-sex marriage advocates in the case could set a precedent for federal courts to overturn every law and amendment in the country currently protecting the traditional definition of marriage.

And yet, though Gov. Arnold Schwarzenegger and California Attorney General Jerry Brown are named as defendants in the suit, both have refused to act in defense of the amendment, leaving it up to the people of California to take a stand for their constitution on their own.

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In June, the U.S. District Court for the Northern District of California verified Brown's abandonment of the case and therefore permitted quick-acting attorneys from the Alliance Defense Fund on behalf of ProtectMarriage.com, the group that sponsored the amendment campaign, to intervene in the case and take up defense where Brown refused.

At the time, ADF-allied attorney Andrew Pugno stated, "This ruling designating us to defend Proposition 8 reflects the unfortunate fact that, if left up to state officials, the will of the people would not be defended at all."

"This case is as much about whether our government is of, by, and for the people as it is about marriage," ADF Senior Counsel Brian Raum said in a statement released this week. "Just imagine how it would change our democracy if every state constitutional amendment could be eliminated by small groups of wealthy activists. It would no longer be America, but a tyranny of elitists."

ADF points out that the lawsuit, originally brought by two men and two women in same-sex relationships, has been backed by Hollywood-area public relations firm that frequently represents celebrities and their causes.

"In America, we should respect and uphold the right of a free people to make social policy choices through the democratic process," added Raum. "If a handful of activists can void a constitutional amendment adopted by 7 million Californians, we have forfeited the very core of the American democratic system – especially in this case, where the people of California affirmed something that predates America itself."

The case has now reached its trial date and will be heard beginning Monday, Jan. 11, at the U.S. District Court for the Northern District of California in San Francisco. The trial is reportedly expected to last two to three weeks.

"Monday, the people of California go on trial," Pugno added. "Our legal team is working as hard as possible to win this trial, but we are prepared to fight with every ounce of energy all the way to the U.S. Supreme Court if necessary."

YouTube coverage – openness or intimidation?

Complicating the case is a decision by Chief U.S. District Judge Vaughn Walker approving the trial to be videotaped and broadcast over the Internet on the popular YouTube site.

Though many state courts allow trials to be taped with a judge's consent, the cameras have been historically prohibited during federal trials. But on Dec. 17, the Judicial Council of the Ninth U.S. Circuit Court of Appeals approved the nation's first pilot program for broadcasting nonjury civil trials, paving the way for Walker's decision.

"This certainly is a case that has sparked widespread interest," Walker reasoned. "I think it's worth attempting in a case of this nature and of this public interest."

The judge added, "I've always thought that if the public could see how the judicial process works, they would take a somewhat different view of it."

Defenders of Proposition 8, however, have blasted the decision, concerned that witnesses may be intimidated from honest testimony if they know their faces and words will be distributed widely to the public, where some homosexual activists have already engaged in public harassment, vandalism and even violence toward Proposition 8 proponents.

"The knowledge that you're testifying to untold thousands or millions ... can cause some witnesses to become more timid," said Michael Kirk, attorney for the sponsors of Proposition 8. "The risk is just unacceptable."

The Bay City News Service reports Judge Walker did, however, turn down requests to televise the proceedings live, preferring instead to broadcast over the Internet after a delay, in order for "the process to be completely under the court's control."

Buz Rico, the court's technical advisor, told the San Francisco Chronicle the videotape will be posted on a special YouTube channel set up for the court as soon as possible, which might be later the same day or the next morning.