Trial Questions: Is Proposition 8 Constitutional?

Posted on 23. Feb, 2010 by Kayla in Featured, [Inter]national

There are a handful of historic court cases with which all American students become familiar – Brown v. Board of Education, Roe v. Wade, Nixon v. The United States. In 2010, another case is about to join these iconic cases in the history books: Perry v. Schwarzenegger, better known as the Proposition 8 case in the US District Court. The case questions the constitutionality of the same-sex marriage ban and is the first same-sex marriage case to reach a federal court.

Proposition 8 (Prop 8), also known as the California Marriage Protection Act, was passed in November 2008 by voters and simply states, “Only marriage between a man and a woman is valid or recognized in California.”

A star roster of lawyers has taken on the case, on both sides. The plaintiffs’ side is co-led by Theodore Olson, a prominent conservative attorney who has argued cases in the Supreme Court (see this 451 article for more on Olson) and David Boies, Olson’s former opponent in Bush v. Gore (2000). The defense’s lead attorney Charles Cooper was Reagan’s Assistant Attorney General, and has since led several prominent cases.

As in any trial, each side must present specific arguments crucial to their case, and back them up with testimony from lay people and expert witnesses.

Plaintiffs’ Case: The plaintiffs argue that Proposition 8 violates the federal constitutional rights of gays and lesbians to equal protection of the law. Since federal law offers people the right to marry, gays and lesbians are guaranteed this equal right by the constitution. Since marriage is of great importance to American society, lack of access to it stigmatizes and harms same-sex couples and their families. The argument continues that Proposition 8’s basis of protecting procreation and parenting is invalid, and that the marriage ban was actually enacted out of prejudice and stereotypes about gays and lesbians.

Defendants’ Case: The defendants argue that Proposition 8 restores a traditional definition of marriage, which is between a man and a woman. Allowing same-sex couples to marry risks harming marriage as a pro-child institution and would lead to other deviant forms of marriage being legalized, such as polygamy. The argument continues that since gays and lesbians have growing political clout, they are no longer an at-risk minority group needing special legal protections. Finally, the Prop 8 defense maintains that the court should respect voters’ decision to enact the gay marriage ban.

The plaintiffs came to trial with twelve witnesses, nine of them intended as expert witnesses. The defendants only came with two witnesses, because many of their intended witnesses changed their mind about testifying due to fear of harassment from anti-Prop 8 activists.

Witnesses:

Plaintiffs’ side:

Paul Katami, plaintiff in the case, wishes to marry male partner.

Plaintiffs’ goal: To show psychological burden on gays denied the right to marry. Katami says he was hurt by the Pro- Prop 8 campaign, especially the implication that gays were a threat to children.

Defendants’ goal: To show parents’ right to teach their children what they believe. Katami admits he believes parents should be left alone to teach their children what to think about homosexuality and same-sex marriage.

Nancy Cott, Harvard historian, expert on history of American marriage.

Plaintiffs’ goal: To deny defendants’ contention that procreation is the central or defining purpose of marriage. She also points out that divorce rates in Massachusetts have stayed stable or declined since same-sex marriage was legalized there.

Defendants’ goal: To establish the historical unanimity of laws against gay marriage. Cott agrees that inter-racial marriages were not as universally forbidden, but disagrees that thinking of humans in binary male/female terms is universal across cultures.

George Chauncey, Yale social historian, expert in 20th century U.S. history with a specialization in gender and sexuality and lesbians and gay men.

Plaintiffs’ goal: To show that Prop 8 is an example of discrimination against gays and that the Yes on 8 campaign furthered harmful gay stereotypes. Chauncey emphasizes the Yes on 8 themes of gays as harmful to children as evidence the campaign was discriminatory.

Defendants’ goal: To show that gays and lesbians no longer encounter as much discrimination as they previously have. Chauncey doesn’t bite: “There has been a shift in public opinion and growing support for gay people, and gay people continue to encounter enormous hostility.”

Letitia Peplau, UCLA professor, expert on same-sex marriage.

Plaintiffs’ goal: To show that gay marriage will have no effect on heterosexual marriage. Peplau estimates that even if gay marriage were fully legalized, less than 2% of marriages would be same-sex.

Defendants’ goal: To question the importance of marriage to gays and lesbians and to question the validity of her data. Cross-examining attorney Nicole Moss asked Peplau whether lesbians can experience accidental pregnancy, Peplau responded “If your question is whether two lesbians can, accidentally, spontaneously, impregnate each other, not to my knowledge. I would agree that same-sex couples do not have accidental pregnancies.”

Edmund Egan, chief economist for the city of San Francisco.

Plaintiffs’ goal: To show same-sex marriage’s positive effect on the San Francisco economy. Egan estimates the city and county could realize more than $35 million per year if same-sex couples could marry.

Defendants’ goal: To show Egan hasn’t considered the economic benefits of civil unions, the alternative to same-sex marriage.

Ilan Meyer, Columbia University professor, expert on mental health of gay couples denied the right to marry.

Plaintiffs’ goal: To show that Proposition 8 unfairly targets gays and lesbians, causing psychological harm and undermining their equal protection rights. Meyer points out that activities as mundane as filling out a marital status box on a form can cause stress, evoking ’social disapproval.’

Defendants’ goal: To insist Meyer’s research is hopelessly flawed. The cross-examining attorney read excerpts from studies including caveats in findings about causes of stress to minorities.

Michael Lamb, Cambridge professor, expert on gay parenting.

Plaintiffs’ goal: To show children raised by gay parents are just as well-adjusted as those raised by straight parents and to undercut the Prop 8 assertion that procreation is a core function of marriage.

Defendants’ goal: To show flaws in the Lamb’s research to support the claim that same-sex marriage is an assault on traditional notions that children should be raised by both a mother and a father.

Helen Zia, San Francisco writer, lesbian denied right to marry.

Plaintiffs’ goal: To give a human example of a lesbian emotionally and psychologically harmed by Proposition 8. “We feel as human beings that we have been invalidated,” she said on the stand.

Defendants’ goal: To paint Zia as a radical activist. Cites her writings, in which she claimed to have married to defy the “fundamentalist, warmongering regime in Washington.”

Jerry Sanders, San Diego mayor, opposes Prop 8 for lesbian daughter.

Plaintiffs’ goal: To provide a prominent opinion that Proposition 8 is unacceptable discrimination against gays and lesbians.

Defendants’ goal: To use the mayor’s testimony as evidence that gays and lesbians have growing political clout and are no longer in need of special protections by law.

Lee Badgett, a University of Massachusetts professor, expert on private harm to same-sex couples denied the right to marry.

Plaintiffs’ goal: To show that gays and lesbians suffer ’substantial economic harm’ when denied the right to marry, that children of same-sex couples are well-adjusted, and that domestic partnerships are not adequate substitutes for marriage.

Defendants’ goal: To show domestic partnerships as an acceptable alternative to marriage. Badgett maintained that marriage would be good for same-sex couples and would not harm anyone else.

Ryan Kendall, gay man forced to undergo ‘conversion therapy’ as a teenager to turn him from gay to straight.

Plaintiffs’ goal: To identify homosexuality as an ingrained characteristic that cannot be changed. Kendall was so traumatized by the National Association of Research and Therapy of Homosexuality’s sexual re-orientation program that he was nearly driven to suicide as a teenager.

Defendants’ goal: To get Kendall to concede that some people may try to convert from being homosexual voluntarily. Kendall would not concede on this point, saying , “It is my experience that people don’t want to go to programs like NARTH.”

Gary Segura, Stanford University professor of politics, expert on gays and lesbians in the American political process.

Plaintiffs’ goal: to show the vulnerability of gays and lesbians in the political process and to show they warrant extra legal protections by the law. Segura asserted that “Gays and lesbians do not possess a meaningful degree of political power.”

Defendants’ goal: To show that gays and lesbians do in fact enjoy political power. The defense attorney played clips from a speech by President Obama wherein he voiced support for gay causes like ending ‘Don’t Ask, Don’t Tell” in the military. Segura identified Obama as a soft ally, saying he was an ally in rhetoric but not in action.

William Tam, organizer / proponent of Proposition 8.

Plaintiffs’ goal: To show that hostility and animus towards gays and lesbians fueled Proposition 8. Tam has said that same-sex marriage is ‘the work of Satan,’ and that gay marriage would lead to legalizing having sex with children. Tam said he does not, however, consider himself hostile to gays and lesbians.

Defendants’ goal: To distance Tam from the Proposition 8 and ProtectMarriage.com campaigns, getting Tam to admit his messages were not pre-approved by campaign managers. In re-direct, the plaintiffs entered into evidence emails that proved Tam’s close involvement with the two campaigns.

Gregory Herek, University of California – Davis psychology professor, expert in basic elements of homosexuality and effects of marriage ban on gays and lesbians.

Plaintiffs’ goal: To show that gays and lesbians do not choose their sexual identities and that they are subject to social stigma.

Defendants’ goal: To undercut Herek’s assertion that homosexuality is not a choice.

Defendants’ Side:

Kenneth Miller, Claremont McKenna professor of politics, expert on gays and lesbians in the political process.

Defendants’ goal: To show gay and lesbian political clout is on the rise, citing that most of California’s leading politicians support gay and lesbian rights, to some extent.

Plaintiffs’ goal: To undercut Miller’s status as an expert, and subsequently to get him to admit his readings on the ‘upward trajectory’ of gays and lesbians had not been extensive.

David Blankenhorn, founder and president of the Institute for American Values, expert on importance of procreation to institution of marriage.

Defendants’ goal: To set the basis for procreation as the main function of marriage. ”The most important thing [marriage] does is regulate affiliation. It establishes who are the child’s legal and social parents,” Blankenhorn said. He then insisted reproduction is a “primary purpose” of marriage.

Plaintiffs’ goal: Basically, to get Blankenhorn to recant his entire previous testimony. Blankenhorn concedes that gay marriage would lead to more stability and “happiness and well-being” for same-sex couples, as well as more commitment in relationships and a lessening of promiscuity. He also called gay marriage in his writings a potential “victory for the worthy ideas of tolerance and inclusion,” and an “expansion of the American idea.”

Result:

Cheif US District Judge Vaughn Walker has given until February 26th for attorneys to file post-trial documents, and closing arguments may be scheduled as soon as early March.

Trial quotes courtesy of mercurynews.com

Tags: Featured, Gay Marriage, Prop 8, Proposition 8, Same-sex marriage, trial