Same-Sex Marriage Trial Making the Case

updated 04/12/2010 AT 01:00 AM EDT

originally published 04/12/2010 AT 01:00 AM EDT

Kris Perry knew just the spot to pop the question: Indian Rock, overlooking San Francisco Bay, not far from the Berkeley, Calif., home she shared with Sandy Stier, her partner of nine years. During a December 2003 hike, Perry pulled a diamond ring from her pocket, held it out to Stier and asked, "Will you marry me?" Stier whispered a delighted "Yes!" But then she paused and asked, "What does that mean?"

It is a question that people across America have asked for some time-and have yet to be given a consistent answer. Five states have made same-sex marriage legal, while 30 others have banned it. But no place has sent a more mixed message than California, where, in the space of just six months in 2008, gay marriage was illegal, then legal, then outlawed again by the passage of the ballot initiative Proposition 8. Now the constitutionality of Prop. 8 is being challenged in federal court-and Perry and Stier are the lead plaintiffs.

Perry v. Schwarzenegger, as it is called on the docket, "is a landmark case that may ultimately decide the issue of same-sex marriage everywhere," says Erwin Chemerinsky, dean of the School of Law at UC Irvine. The case pits attorneys for Perry, Stier and their two male coplaintiffs (see box, page 132) against those for Protect Marriage (a private group formed to promote Prop. 8) and state senator Dennis Hollingsworth, who stepped in when Gov. Arnold Schwarzenegger chose not to fight the case. However the current judge rules in the coming weeks, both sides anticipate the case will eventually reach the U.S. Supreme Court. And if that court sides with the plaintiffs, Chemerinsky says, the impact would rival that of Roe v. Wade-not just on the law of the land, he says, "but in terms of the political controversy that would result."

But for Perry and Stier, the case is more than politics. It's personal. "I would like to get married, and I would like to marry the person that I choose," Stier testified Jan. 11, the first day of the trial, in a U.S. district court in San Francisco. "And that is Kris Perry. She is a woman. And according to California law right now, we can't get married."

Describing themselves more as PTA moms than activists, they were hesitant at first even to get involved. Perry, executive director of a state agency that provides health and education services to children, was first approached by Chad Griffin, a friend and president of the American Foundation for Equal Rights, which brought the suit. "I knew immediately that Kris and Sandy are a family that could resonate with people," he says. "It's very difficult to listen to them and say they shouldn't have the same rights as anyone else."

Knowing that they would become the public faces of a highly contentious issue, Perry and Stier consulted with their four sons, ages 15 to 21 (each had two from prior relationships), before they agreed to help. "It came down to: What if this were a permanent solution?" says Perry. Once they were resolved, they applied for a marriage license in May 2009, knowing they would be turned down and would then sue. When the case began in January, they shared their love story on the stand and recounted telling details of their everyday lives, such as the vexing problem of the "single" and "married" boxes on insurance forms.

Changing the law was far from their minds when the two met in 1995 in a computer class Stier was teaching. Perry, 45, a native of Bakersfield, Calif., who has long been out as a lesbian, was the birth mother of twins with her ex-partner; Stier, 47, born and raised in Iowa, was married to a man. The women became friends, and then, after Stier's marriage ended in divorce, they fell in love. "We have this deep connection," she says. "We both really value home." With two boys on the swim team, another in school government and one who plays saxophone, "we've had the gamut of activities to drive to and cheer for," says Stier. Their oldest two are off at college, but their Craftsman-style home remains filled with lacrosse equipment, skateboards and other boyhood detritus-as well as wedding photos of the 2004 marriage that was recognized for only a few months.

They wed in 2004, four years before the state Supreme Court made gay marriage legal, during the brief period when San Francisco mayor Gavin Newsom performed same-sex ceremonies after hearing President Bush oppose it during his State of the Union address. Stier recalled for the court the toast her older son made at their reception: "He said, 'Kris and Sandy, you are perfect for each other, and this couldn't have turned out any better.'" Right away, life felt different. "The kids started calling each other brothers," she says. "It gave them the common language their friends have."

But when they returned from an Italian honeymoon, they were met with a letter from the city informing them their marriage had been voided. "It was the most public exclusion I have ever experienced," says Perry. Adds Stier: "It said they would be happy to return our license fee or donate it to charity. It was humiliating."

Their opponents in court argue that neither love nor humiliation nor any other emotion is material. "Testimony about witnesses' personal feelings...are simply not legal evidence that the United States Constitution gives gays and lesbians the right to redefine marriage," wrote Hollingsworth's lawyer Andrew Pugno on his blog about the case. "The controlling legal issue is not whether homosexual marriage is good or bad, but rather whether the people have the right to decide what is best," wrote Pugno, who is called the "architect" of Prop. 8.

"It's not like I don't want them to be together," says Michele Sundstrom, a San Jose mom of five who contributed to the Prop. 8 campaign and whose home was picketed by anti-8 protestors as a result. Now she is closely following the trial. "I'm not antigay. But I believe children have a right to a father and mother." Kris' mom, Laura Hubbard, counters that opponents of gay marriage might change their minds if they saw families like her daughter's. "It looks like every other family," she says. "They go to the store, clean the house, do the yard, oversee homework and maybe get to go to a movie."

At least in their hometown, Stier and Perry have enjoyed plenty of support. During the trial they received flowers with a card signed by every teacher in their boys' school district wishing them success with their suit. And if they do succeed? "Oh, you can't even imagine what it will mean," says Stier. "We all want to belong."

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