Update (31/10/2009)
The link below to the Lisa Leff article for AP has expired, but Google still appears to have it here.
/Update

Two couples – Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarillo – are taking a case to the federal courts against the state of California. The couples in the case – Perry v. Schwarzenegger – are unmarried couples, and they are suing to challenge Proposition 8 as being in breach of the US Constitution.

As you may be aware, Proposition 8 was run in California at the time of the presidential elections in November 2008, and was passed by just over half of voters. The Proposition bans same-sex marriage in California. (Same-sex marriage was legal for a few months prior to the passing of Prop 8, and those marriages remain legally valid according to the California Supreme Court.)

On Wednesday, during a preliminary hearing in the Perry case, an unusual discussion took place. An excellent report by Lisa Leff for the Associated Press details the exchange between chief judge Vaughan Walker and lawyer for the proponents of Proposition 8, Charles Cooper. Cooper was seeking to have the case either struck out altogether, or to make it more difficult for the plaintiffs in cases such as these.

In refusing the application, the judge – appointed by former president, George W. Bush – informed Cooper that when the case goes to trial in January 2010, he and his legal team must “present evidence showing that male-female marriages would be undermined if same-sex marriages were legal”.

Honestly, read Leff’s report in full which quotes parts of the dialogue in detail. Vaughan pressed Cooper to show what is the harm or adverse effect on opposite-sex marriages and on children. Cooper was unable to answer: in relation to the question concerning the effects on opposite-sex relationship, he eventually responded, “I don’t know”.

When pressed further, using a double-negative he asserted that it is not self-evident that there is no harm, and suggested that the people of California should not “take the risk” but should be allowed to see how the same-sex marriage “experiment” plays out in other U.S. states. Vaughan was having none of it: “Since when do Constitutional rights rest on the proof of no harm?”

Read it! [here]

Read it, especially because some entities in Ireland continue to raise similar issues as those put forward by Cooper and co. We have long heard anti-marriage equality voices in Ireland talk of “allowing certain rights to same-sex couples”, but referring to marriage as “the gold standard” (as persistently parroted by David Quinn) and as being the only place within which to raise children. Marriage is often – explicitly or implicitly – discussed and defined in terms of procreation.

Such arguments were even put forward in the Zappone and Gilligan case, and were referenced by judge Dunne in her judgment against the two women. (This includes relying on evidence by the Irish state’s witness, Prof Patricia Casey, who to my knowledge failed to disclose her position as patron of the Iona Institute, which was launched shortly after the judgement was issued.)

Indeed, as well as the issues mentioned above, judge Vaughan also wants to find out if the proponents in of Prop 8 have or had any anti-gay stance, and has required the disclosure of correspondences of those involved in the campaign.

The Perry case is relevant to Ireland not only because the case deals with the topic of marriage equality. It is relevant because Ireland and the UK (like many former and current Commonwealth members and former British colonies) are ruled by the common law system, as well as by legislation.

Our laws are not the same, certainly, but our legal traditions are; moreover, the courts in Ireland have in the past regarded US and Canadian rulings (among others) as either being of persuasive value or approved them to cite as precendent, thereby incorporating such cases into Irish caselaw. (For example, the infamous Flynn v Power ruling of 1985 relies on a ruling of the Canadian courts; the case has since been overturned in Canada and is now defunct there, but remains good law in Ireland. But that’s a whole other matter!)

The Perry case is due to go to trial in January 2010. As yet, there is no date that I’m aware of for the Zappone and Gilligan case to be heard in the Supreme Court (and that Court has quite a backlog, by all accounts).

I’ll be keeping a trained eye on the news reports – and, if possible, the transcripts – of Perry as it proceeds. I hope that the Zappone and Gilligan legal team will do likewise, as the appeal to the Supreme Court will deal solely with legal argument (the facts as established in the High Court may not be re-visited on appeal). I also hope that activists, Irish lawmakers and members of government are aware of the details of the case.

Whatever the eventual outcome of Perry, how the issues will be discussed – those indicated, at least, by Wednesday’s pre-trial hearing – will be very, very interesting to see.

See also:
MarriagEquality
LGBT Noise