As the Perry v. Schwarzenegger gay-marriage trial continues, gay-marriage opponents say they are overmatched and out-financed by the legal team of Ted Olson and David Boies. The gay-rights movement has traditionally been viewed as the underdog in most legal battles, but here it is their opponents who say they are over-matched. Opponents of gay marriage say they are struggling to fight the power and clout of gay-marriage supporters. "It's like David and Goliath," says Carla Hass, a spokeswoman for Protectmarriage.com who sits behind the defense table each day. "The other side has well-heeled gay-activist groups, the entertainment industry, and a lot of money behind their case. We are running mostly on volunteerism."
Andy Pugno, general counsel for Protectmarriage.com, the sponsor of Proposition 8—the state ballot proposition and constitutional amendement defining marriage as strictly between a man and a woman—says the defense is facing numerous handicaps, not just financial. "We are truly fending off a tsunami of lawyers" for the plaintiffs, he says. He charges that the state itself has turned its back: "The attorney general has completely abdicated his responsibility to defend the law for our voters; the entire burden falls on our shoulders."
In the past, says Jennifer Pizer, senior counsel for Lambda Legal, a gay legal-advocacy organization, many community advocates argued cases along with private lawyers working pro bono (Pizer was one of many gay lawyers who wanted gay legal groups to join Perry v. Schwarzenegger; though not directly involved, these groups have provided support). "But here we are seeing civil-rights litigation for pay," she says. (Olson's team is being paid for the work, but he says they are contributing a "substantial" portion of the services.) Since neither side has disclosed its budget, it's hard to say for certain who has the deeper pockets. The defense says it takes just one look inside the courtroom to feel the difference. "From all appearances, I'd say they probably have access to unlimited resources," says Pugno. "Any time a tiny issue pops up, they have the capacity to put an entire platoon of lawyers on it. We are very much outgunned; there is no question about it."
The plaintiffs question claims that Prop 8 supporters are struggling financially. "The people who are claiming a disadvantage in resources are the same people who raised and spent $40 million to pass Prop 8," says Chad Griffin, a political strategist and board member of the American Foundation for Equal Rights, which is financially backing the plaintiffs. "They have been unwilling to disclose the amount of money raised [for this trial] and the identity of their donors. I believe transparency is in the public interest, and we are willing to release our donors as long as they will agree to do the same."
The defense says its disadvantages don't stop at finances. It may have lost a key litigant, and supporters say the team is facing an uphill battle simply given where the trial is being held. Prop 8 supporter William Tam, who was serving as an official litigant, filed a motion to out of the case just before the opening day of the trial, saying he feared the publicity would endanger him and his family. In a court filing he noted that during the Prop 8 campaign last year he had received threats on his life and had his Bay Area property vandalized and feared the trial would result in more of the same.
The defense won a victory in its efforts to block television coverage of the trial, which it said would further hinder opponents of gay marriage from feeling safe to argue their case in court. The U.S. Supreme Court indefinitely blocked cameras from the courtroom in a Wednesday opinion. Pugno says, "We feel badly for [Tam] that this case has brought so much persecution into his life that he would decide to withdraw." Boies says the threats were not related to the trial, and that Tam had clearly "self-identified" to the public already by leading rallies and writing articles: "He wasn't exactly a confidential source." Boies dismisses claims that Tam or other Prop 8 supporters are seriously threatened. "It's a little bit like whites in the South in the '60s claiming they were afraid blacks would harass or attack them," says Boies, a veteran of the civil-rights movement. "Attacks on African-Americans tended to go one way, and attacks on gays and lesbians basically go one way too."
Conservatives like Ed Meese have also argued that having the case in San Francisco is "disquieting" and that many of Judge Vaughn Walker's pretrial decisions have been favorable to the plaintiffs.
To add to their frustrations, a lawyer for the defense says the team doesn't dispute many things the plaintiffs, in particular the four gay couples, are saying about discrimination and the history of discrimination, including harassment or legal limitations, such as hospital visitations of partners. "We at our table agree with what the witnesses are saying. We'd represent them. But that's not what this trial is about," says Vincent McCarthy, who will be representing two witnesses subpoenaed by the plaintiffs. "This trial is about what the complaint says it's about, which is that Prop 8 constitutes a violation of the equal-protection and due-process clauses of the First Amendment of the federal Constitution. I have seen little evidence presented so far of this."
The defense says plaintiffs will discuss the political powerlessness of gays, something Pugno says this trial itself calls into question.