A little background: In November of 2008 Proposition 8 was passed in California which amended the state's constitution limiting the word "marriage" to the traditional definition of one man and one woman. This came after, and thus overturned, an earlier holding from the California Supreme Court declaring that limiting marriage to one man and one woman was unconstitutional (under CA's constitution).
There were many problems with the proposition 8 campaign. One was described by Dale Carpenter, a Constitutional Law scholar and professor at the University of Minnesota. http://www.indegayforum.org/news/show/31740.html He wrote an article describing the issues of changing California's constitution. California law allows two different ways to change its constitution. One is through an amendment process, which simply requires a majority vote from the people. The other is called a revision, requiring a 2/3 majority from both houses of the state's legislature before introducing it to the public vote. The latter process is more difficult because of the extra legislative hurdle. Thus, it is said that the revisionary process is reserved for issues of great constitutional change (I am not using legal terms or quotes from the court, but rather describing this generally), whereas the amendment process is used for changes of less import.
What followed the passage of Prop 8 was a major legal battle about whether the change to the constitution was proper under California law. As most people already know, the California Supreme Court ultimately ruled that the Constitution's amendment was valid and Prop 8 would stand. Much of the battle was whether Prop 8 should have gone through the amendment process, or the more rigorous revision process. Although I am not sure of the actual holding, I believe the court decided that the marriage change was indeed an amendment.
Then came the unlikely team of Theodore Olson and David Boies to challenge the passage of Prop 8 under the federal Constitution. It is an interesting fact to note that these two lawyers, who are fighting together on the plaintiffs' side, were once adversaries in the famous Bush v. Gore case. Olson was President Bush's lawyer.
The plaintiffs' complaint stated, very simply, that the passage of Prop 8 violated the plaintiffs' (and more broadly, gays and lesbians in general) Equal Protection and Due Process rights guaranteed under the 5th and 14th Amendments of the Federal Constitution. For most people, the previous statement means practically nothing. The words carry some weight and they resonate in one's ears, but their meaning is unknown.
To understand why Due Process and Equal Protection were violated, it would help to have a brief discussion about the passage of Prop 8 and what happened in those months before November 2008.
It is well-known that a large source of opposition to gay marriage comes from religious groups in America. In particular, Christian religions have a poignantly difficult time with the extension of marriage to same-sex couples. It is alleged that Christian religions had a great deal of influence regarding the pro-Prop 8 ads that were shown to voters, although the extent to which they had control is a topic that is often debated. However, much of the pro-Prop 8 literature and media advertising had a religious tone to it. Sometimes those tones were subtle. Often times they were not. Several of the ads painted gay and lesbians as quasi criminals, bad people from whom mothers and fathers should keep their children away. It is this kind of advertising that gave rise to the Perry case.
Basically what Olson and Boies argued was that pro-Prop 8 groups (particularly religions) used outdated, harmful ideas of gays and lesbians in their advertising, generally slandering them, in order to win the Prop 8 vote. They're basically asserting "you fought dirty and that's not fair." They are alleging that the use of these tactics violated the Plaintiffs' Due Process and Equal Protection rights. It is not the fact that Prop 8 simply passed that violated rights (although I think there is an argument for that), it's that the passage of Prop 8 was passed in the way it was. The argument is that a state can pass a constitutional amendment, but it has to be passed by their own rules and not in a way that is repugnant to the system.
The court made a point of looking at evidence regarding the advertisements for Prop 8 and heard testimony from expert witnesses from sociological and psychological fields describing the negative effects gays and lesbians have felt because of such discrimination represented in the ads. The court was determining what was in those ads, and if that content was indeed harmful and incorrect.
On the defendants' side, the argument was that Prop 8 was properly enacted by a majority vote of the relevant public. If it's what the people want, this is what the people should have, even if they might be wrong. Further, they argued that this is not an issue for resolution under Constitutional law. If the court to makes a judgment against Prop 8, it's a substitution of the court's will for the people's, which it is not supposed to do. Lastly, the CA government contends that it is not homophobic. It has one of the most extensive legal regimes of any state for same-sex couples' rights. They are simply asking, "just leave marriage alone."
One should also note that a similar case came before the United States Supreme Court in 1996. Romer v. Evans regarded an amendment to the Colorado constitution that declared gays, lesbians, and bisexuals as non-suspect classes for purposes of rights discrimination. This basically meant that no law could be drafted to afford special protection to gays and lesbians as are enjoyed by cultural minority groups in our country. The Court struck the amendment down, finding no rational basis that connected the law to its stated purpose. This was one of the rare times that the Court held the law in question failed the rational basis test. The reasoning of the Court was simple. You can't gang up on an unpopular group of people and makes laws discriminating against them just because you don't like them.
The decision of the Court mentioned above certainly is not without criticism, which was well-voiced by Justice Scalia's dissenting opinion. In his mind, this was simply a majority vote based on general public morals with which the federal judiciary does not normally involve itself. He further stated that no rights were being taken away from the GLB community, but rather the rights of that group of people needed to go through the legislative process. This is a constant battle between the conservative and liberal sides of the bench.
The difference between the two laws in Perry and Romer is subtle. Romer dealt with a blanket exclusion of gay rights from achieving redress through the courts. Perry dealt with a single right. Further, the right to marry, although fundamental, has always had the man-woman ideal attached to it. Thus, Perry may not turn so much on whether the discrimination of gays is wrong, but, rather, whether the right in question is really something that belongs to the gay and lesbian community.
One final note: I was one of those gay people that was in the dissenting camp. When I heard about Perry, I wasn't exactly thrilled. Although I am gay, I am firm believer in the democratic system and that rights not addressed under the Constitution should not receive Constitutional scrutiny. That's not to say that if Perry had a good outcome I'd be upset. I am a firm supporter of gay marriage, and not solely because I am gay. Actually, my being gay has relatively little to do with my want for gay marriage. Marriage is a good thing, it makes people better, it gives them responsibility, companionship, it's sex with a person that you trust and with whom you feel safe, it's better financially, etc. (marriage can also suck too, of course). Yes, marriage does generally bring about kids, but honestly, who cares. Sometimes it does, sometimes it doesn't. If marriage does good for the gay and lesbian community, even if it slightly damages the institution of marriage for heterosexuals and their kids, I am perfectly fine with that and I think heterosexuals, religious or otherwise could live with that.
