Election night 15 years ago– Nov. 4 2008 –LGBTQ+ voters in California experienced a kind of political whiplash – euphoria and despair in one night as the states' voters overwhelmingly chose to elect Barack Obama president, while simultaneously taking away the right of same-sex couples to marry.
Proposition 8 – eliminating a right to marriage that had been granted to gay and lesbian couples by the California Supreme Court less than six months earlier –passed with 52% of the vote.
Two years later, on Jan. 11, 2010, two same-sex couples, Kris Perry and Sandy Stier, and Jeffrey Zarrillo and Paul Katami had their day in federal court when they sued to overturn Prop. 8 after they were denied marriage licenses.
That trial, which included expert witnesses testifying under oath about anti-gay tropes, theories and political arguments, resulted in the measure being struck down. The federal judge presiding over that two-week trial deemed the case for banning same-sex marriage to be unconstitutional, a violation of the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.
The U.S. Supreme Court essentially upheld the lower court ruling in a 5-4 decision, June 26, 2013, by declining to take up the appeal.
For more than a decade after it ended, videotapes of the trial were kept under seal, until KQED successfully fought a long legal battle that resulted in the U.S. Supreme Court allowing them to be unsealed.
After the videotapes were released, KQED invited the four Prop. 8 plaintiffs – Kris Perry and Sandy Stier along with Paul Katami and Jeffrey Zarrillo – to view them for the first time and talk about the trial, its aftermath, and its significance today.
Those videos can be viewed here and here.
Reflecting on the trial, its aftermath, and its significance now
One thing that stood out is that the "Yes on 8" messages such as "Protect the Children," with television commercials saying unless the measure passed children would be encouraged to marry someone of their same gender.
Those messages still echo today in political rhetoric and legislation related to high school sports and the use of bathrooms by transgender youth.
The campaign to ban same sex marriages in California was promoted by leaders in the Catholic and Mormon Churches.
"The sad part of it is, that campaign worked because the convenience of the lie won people over, and the lie was based on fear," recalls Paul Katami. "And that fear included children. So I would never say it was a brilliant tactic, but it was an evil tactic."
That tactic using the guise of protecting children from harm brought by LGBTQ people is still at work today by politicians and ultraconservative groups like Moms for Liberty, who talk about parental rights to push back against policies that support transgender youth and their families.
Attorney Thomas R. Burke led KQED's successful legal battle to unseal the tapes.
He says the trial tested the homophobic, hateful arguments promoted by opponents of LGBTQ+ rights. The witnesses, the withering cross-examinations, and the poignant testimony is all caught on video that is now available to anyone who wants to watch.
"The evidence didn't support you," Burke says, referring to "Yes on 8" defenders. "You had great lawyers arguing your cause and you didn't win. And if people thought you should have won, they can see and judge for themselves. If you didn't have that recorded, that couldn't happen."
The historic trial resulted in a landmark decision on Aug. 2, 2010 when Judge Vaughn R. Walker struck down the ballot measure – but it was hardly a foregone conclusion at the start.
"I remember feeling very anxious and scared, honestly, not knowing how any of it would turn out," lead plaintiff Kris Perry, now 59, says after viewing trial clips at KQED. "People were really, you know, counting on us to deliver. And there was a lot of pressure."
Perry's wife, Sandy Stier, 61, recalls what seemed like days and days of preparation before going on the stand. She remembers worrying about how the trial might affect their lives, "not only for me, what it might be like for my kids, for my parents, my siblings and my community. And so it was very, very anxious going into court that day, not knowing."
Zarrillo and Katami were the first witnesses called to testify.
"I had so many fears going into the trial," Katami says. "I was not confident because this was uncharted territory for both of us as human beings."
"I said to Paul at one point, 'Even if we lose, we can go to our graves knowing that we didn't stand for being treated as second class citizens,' " Zarrillo recalls. "We tried to do something about it."
Until the trial, plaintiff says many heterosexuals didn't know all the rights afforded straight couples denied to LGBTQ
The trial was originally going to be televised on closed circuit TV via YouTube until Prop. 8 attorneys objected and the U.S. Supreme Court intervened to prevent it. But Judge Walker recorded the trial anyway, he said, for his personal use in writing the decision.
On the stand, Katami was asked by one of the attorneys who represented the plaintiffs, David Boies, what the big deal was about not being able to marry when they had the option of domestic partnership.
"The big deal is it's creating a separate category for us. And that's a major deal because it makes you into a second, third ... and fourth class citizen," Katami said that day in January 2010.
Reflecting on his testimony Katami, says until the Prop. 8 trial, many heterosexuals didn't know the hundreds of rights automatically afforded straight couples – but denied to LGBTQ people. For example, some rights are not automatically afforded same sex couples, like social security benefits of a partner who dies.
"And if you don't have that protection because marriage allows that protection, there's a bright spotlight that shines down on those rights when you don't have them," Katami says.
Viewing the trial tapes, Zarrillo notes that, "When you're on the stand like that, you have to really figure out, 'how do I answer this question [in a way] that is not going to hurt our cause?' " he says.
When Perry was asked in court to describe her relationship with Stier, whom she met while both were students at U.C. Santa Cruz, Perry testified that, "I met Sandy thinking she was maybe the sparkliest person I ever met. And I wanted to be her friend."
On the stand, Stier testified that after meeting Perry she "really felt like the thunderbolt of change for me." Unlike Perry, Stier wasn't an out lesbian at the time.
"I had moved to California, got married to a man, had two kids, and knew that something wasn't working for me," Stier tells KQED.
The trial tapes reveal the humanity of the issue, ably presented by the four plaintiffs, said Judge Walker recently.
"Both of the couples were very able witnesses – very attractive witnesses. ... So we're talking about matters that are intensely personal and important to them. That's pretty compelling testimony under any circumstances," Walker told KQED.
But the audible and visible emotion of their testimony was out of view, until the trial tapes were unsealed.
Of course, unlike TV shows, where every courtroom scene is riveting and entertaining, real-life trials are mostly "hours and hours of tedium broken episodically by sometimes emotions (or) events of great interest. But they are few and far between," Walker said.
The tapes can show how courts deal with a social issue of widespread importance and help to humanize the plaintiffs
Still the retired judge said the tapes will be useful in law schools to show students how courts deal with" a social issue or a constitutional issue of widespread importance."
After Prop. 8 was struck down in 2010 both couples soon married and remain so today. But LGBTQ people are still under attack by people hoping to use them as political fodder on behalf of conservative causes.
"I think that is incredibly dangerous," says transgender activist Honey Mahogany. "These are tropes that have always been a part of emotionally manipulating people to advantage a certain political group or cause, right? They're not based in fact."
Mahogany, who also chairs the San Francisco Democratic Central Committee, says release of the trial tapes helps to humanize issues and the plaintiffs.
"Seeing what happened during the trial behind the scenes is really important because it helps expose the truth," Mahogany says. "It helps expose the fact that this is just about two people loving each other, wanting to cement their relationship, wanting to protect each other ... and their children."
Mahogany says given the risks of failure, what the Prop. 8 plaintiffs did was "incredibly important and brave."
She hopes their example will embolden others to come forward today to humanize LGBTQ issues. "We can learn from history. We can, you know, find our champions and also our storytellers to help us tell our stories," Mahogany says.
With the videotapes now accessible online, the couples' stories told under oath can be seen by anyone who wishes to watch.
"They fought for a decade that this would not be seen," says attorney Burke. "And I think there's a reason for that," Burke adds, implying their arguments simply didn't hold up under legal scrutiny.
Although Walker's ruling striking down Proposition 8 was upheld by the U.S. Supreme Court, the wording of the Prop. 8 constitutional amendment remains in the California Constitution. But voters will have the chance to change that next November.
The State Legislature placed a measure on the fall 2024 ballot that removes that now-unenforceable language of Prop. 8 and replaces it with the statement that "marriage is a fundamental right" for all couples and is among " the inalienable rights to enjoy life and liberty and to pursue and obtain safety, happiness, and privacy."
It's an affirmation of the right of all couples to marry in California.
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