Yesterday, star lawyer team Ted Olson and David Boies made their closing arguments in Perry v. Schwarzenegger, the federal challenge to California’s Proposition 8, the ballot initiative that barred gay people from getting married in the state (you can read the transcript here). Excitement was high: The conservative National Organization for Marriage live-blogged this “civil rights battle … to protect marriage” and courtroom coverage from Firedog Lake called it “the landmark civil rights trial of the century.” After the closing arguments were done, NOM and Queerty both proclaimed "it's over."
But it's not. Eventually the case could answer a slew of thorny legal questions about the fundamental right to marry and equal protection under the Constitution -- it even has the potential to make other forms of anti-gay discrimination in government employment and housing indefensible. But we’re not getting those answers anytime soon. Both sides are ready to appeal if Judge Vaughn Walker rules against them, which would kick the case up to the 9th Circuit, after which there will probably be another appeal to the Supreme Court. As Olson said last week, “We fully expect this case to go to the United States Supreme Court.”
That means that the trial that concluded yesterday and the subsequent decision are primarily important because of the role they will play going forward. Trial and appellate courts have different functions: The trial court applies the law to the “factual record,” or evidence considered in the case; the appellate court reviews how the law was applied. In this instance, no matter what the trial-court judge decides, it’s going to be subject to further review. However, once a case moves on from the trial court, you don’t get to present new evidence or hear testimony. So despite all the fanfare today, the really important stuff took place in January, when both sides were calling up witnesses and submitting documents into evidence. Closing arguments make a good media hook, but the thing about cases such as these is that they go on for some time. Perry isn't expected to reach the Supreme Court for at least another year or two, by which time California voters may have overturned Prop. 8 at the ballot box.
-- Pema Levy