It strikes me that some of what’s going on in the Prop 8 trial can be hard to follow. So I’m going to put on my constitutional law hat here and give a little primer. We’ll see how well I’ve remembered most of this stuff from law school.

Broadly, the plaintiffs in the Prop 8 case — the lawyers who are trying to get Prop 8 overturned — are trying to prove two things: (1) that marriage is a fundamental right that should be open to gay couples as well as to straight couples, and (2) that gays as a group are deserving of equal protection. Basically, discriminatory laws are subject to a high level of scrutiny if (1) they involve a fundamental right (like marriage) or (2) the discrimination is against certain protected groups (like blacks).

(Very little of this doctrine is actually set forth in the Constitution; it has been enumerated in bits and pieces by the Supreme Court over the decades in various constitutional law cases.)

To use a classic example: a state can allow optometrists to conduct eye exams but prevent opthamologists from doing so, because there is a rational reason for the law (one group has the expertise to conduct eye exams, the other does not). But you can’t pass a law permitting optometrists to get married but prohibiting opthamologists from doing so, because marriage is a fundamental right. And you can’t pass a law preventing black people from conducting eye exams, because they are a protected class with a long history of discrimination against them. You also can’t do either of these things because on a minimal level, there is no rational basis for the discrimination.

So this case is, to put it very simply, about (1) whether treating gays differently from straights in the area of marriage is the same as treating optometrists differently from opthamologists in the area of eye exams (i.e. is there a good reason for letting straights get married but not gays), and/or (2) whether sexual orientation should be a protected class like race is.

So here’s how that all plays out:

One, the lawyers on our side are trying to show that sexual orientation should be a protected class, i.e. a “suspect classification.” In other words, they are trying to prove that laws that discriminate on the basis of sexual orientation should be subject to a higher level of scrutiny just as laws that discriminate on the basis of race are subject to higher scrutiny.

Now, one of the characteristics of a group that is subject to this special protection is that the group lacks the political power to achieve its goals through the democratic system. So our side is trying to show that gays lack political power and therefore deserve protection, whereas the other side is trying to show that gays have adequate political power so what’s the big deal. The theory is that the courts will only look out for groups for whom the political system is rigged against them: i.e. blacks in the mid-20th century (who in many cases were being prevented from voting). Basically, the anti-gay folks are saying, “Look, gays have just as much political power as anyone else — see, people like watching TV shows and movies about gay people and there are lots of politicians who support them! Therefore, if they can’t win ballot measures about same-sex marriage, it’s not because of a fault in the political system, it’s just that they lost in a fair democratic vote!”

The whole thing about lacking political power is silly, because it’s paradoxical. Basically, we have to prove simultaneously that (1) gays are getting screwed by the political system and (2) society has evolved enough so that same-sex marriage isn’t that much of a further step. It’s never made much sense to me.

Another characteristic of a group that gets special protection is that that group has an immutable characteristic. So, some of the testimony has been about what makes people gay, can gay people change, etc.

So that’s the “suspect classification” argument.

But if they fail on that point, there is another tack: they are trying to show that Prop 8 does not even have a rational basis and is therefore unconstitutional.

One way to do this is to show that it was motivated by animus. The Supreme Court said in Romer v. Evans that even if a particular group does not deserve special protection, you can never constitutionally discriminate against a group merely because of animus and nothing else. Romer was the 1996 case in which the Court threw out a Colorado constitutional amendment that banned any laws protecting gay people from discrimination; there, the Court found that the reason the people of Colorado passed that amendment had no basis other than animus. That’s one of the reasons why our guys wanted to put William Tam on the stand — to show that he had a hand in the Prop 8 fight and that his reasoning was based on irrational, animus-driven prejudice (i.e. gays are child molesters, gays want children to be able to get married, etc.), and that his thinking reflects the thinking of most of the Prop 8 forces generally.

Another way to show that it lacks a rational basis is to go into the substantive stuff about why gays should be able to get married, why it does not harm children, etc.

So, all of that is the “equal protection” strand of the argument.

The other strand of the argument is the “fundamental right” strand, which also involves much of the substantive stuff about gays and marriage. But the main thrust on the “fundamental right” issue is that the Supreme Court has already, in the past, declared that marriage is a fundamental right: you can’t deny interracial couples the right to marriage, and you can’t even deny someone in prison the right to get married, even though the prisoner might never be able to have conjugal relations with the spouse. So the lawyers are trying to show that this already-declared fundamental right of marriage should not be denied to same-sex couples.

So this is basically what’s going on in the Prop 8 trial.