Prop 8 Trial Week Three: The Cliffhanger

The fabled trial to overturn Proposition 8 in California is wrapping up after almost three weeks of testimony, and it’s looking good for the plaintiffs who support same-sex marriage. (The defense is backing Prop 8, the initiative that defines marriage as between a man and a woman, denying that same right to gay people.)

The attorneys working to overturn Prop 8 concluded most of their evidence and testimony last week, and this week the supporters of the gay marriage ban presented only two witnesses, pared down from a much larger number.

Monday January 25

Attorneys David Boies and Theodore Olson, who argued on opposite sides of the Bush v. Gore case before the Supreme Court back in December 2000, kicked off the week by showing some videos to give the court an idea of the type of advertising run during the 2008 campaign for Prop 8. The idea was to show that the motivation behind the initiative was not to save marriage, but rather to discriminate against gay people, largely for religious reasons. The videos included Ron Prentice, CEO of the California Family Council and executive director of, saying things like, “what gays and lesbians do in private does not bother me, but I do not want children exposed to it.”

Then the defense introduced their first witness, Claremont McKenna College professor Kenneth Miller. Before he could say a word, however, plaintiff’s attorney Boies objected on the grounds that Miller is not an expert on the subject of gay and lesbian political power, and that he has done no research on the subject. Boies was overruled and Miller took the stand.

Miller pointed out that the opponents of Prop 8 raised $43-million dollar in opposition to the initiative, $3-million more than supporters. (He willfully ignored the fact that this did them no good; the initiative denying marriage rights passed anyway”) Miller’s point is that gays and lesbians are gaining acceptance in society, and that they have amassed political power. He cited the fact that companies like Yahoo, Cisco, and eBay organized to defeat Prop 8 during the 2008 campaign. Miller also claimed that newspapers, the entertainment industry, churches, and labor unions also support gay rights. Miller noted that gays and lesbians have powerful vocal supporters in Congress, including Senators Boxer and Feinstein, as well as President Barack Obama.

Upon cross-examination, Prop 8 plaintiff Boies got Miller to admit that he had not done much reading on the subject of gay and lesbian power; mostly he was quoting from material given to him by the attorneys defending the initiative in court. Boies then tried to get Miller to admit that Prop 8 amounts to discrimination against an entire class of people; reluctantly, Miller did concede that Prop 8 does “create a distinction between the two groups,” that is, hetero- and homosexuals.

Tuesday January 26

Boies continued hammering away at Miller’s testimony on Tuesday morning, producing some of Miller’s own writing in which he opines that “initiatives can be used to circumvent legislatures to get issues before the voters, and that it has been used in various instances to repeal benefits for minority groups.” Whoa!

Boies attacked Miller’s claim that churches support gay rights by citing the involvement of the Catholic and Mormon churches in pushing Prop 8 to ban same-sex marriage. Miller was forced to admit that religion was “a factor” in the resulting vote in 2008, and that religious groups were the primary ones supporting the gay marriage ban. Boies also got Miller to state in court that a religious majority should not be able to use the law to deprive a minority of rights”but he did not mention Proposition 8 in specific.

Federal District Judge Vaughn Walker stepped in at this point, asking Miller if judges have the right to intervene in the initiative process; Miller said judges should intervene only if a constitutional principle is being violated.

Then it was time for the Prop 8 supporters’ second and final witness, David Blankenhorn, founder and president of the Institute for American Values. One of the arguments used for Prop 8 is that same-sex marriage would undermine traditional heterosexual marriage and that one of the primary reason for getting hitched is procreation, in other words, producing children. Prop 8 opponents, of course, argue that lots of folks get married without having kids, necessarily, and that having children is not a requirement of marriage. The defense contends that procreation is one argument that the gay marriage ban has a legitimate purpose and is not discriminatory.

Once again, attorney Boies objected that Blankenhorn has a master’s degree in labor history and has never taught on marriage-related issues, that he is not an expert on the subject (as most of the plaintiff’s witnesses had bona fide degrees and publications). His objection was overruled and Blankenhorn was allowed to speak.

Prop 8 defense attorney Charles Cooper got things rolling by asking Blankenhorn, “What is marriage?” Blankenhorn replied, “A socially approved sexual relationship between a man and a woman.”

“And what does marriage do?” Cooper continued. Blankenhorn: “The most important thing it does is regulate affiliation. It establishes who are the child’s legal and social parents.” He went on to assert that reproduction is a “primary purpose” of marriage. Cooper asked if this belief is the result of “anti-homosexual prejudice.” Blankenhorn was adamant. “No, I have looked for it and I can’t find it.” More than once Blankenhorn made the point that the institution of marriage is already being diluted by heterosexuals with divorce and children being born out of wedlock. He said that he believes that same-sex unions would further weaken marriage and lead to other forms of marriage, including polygamy. “Putting children with their biological parents is marriage’s purpose in society,” he said. He also said that even in polygamous marriages that “each marriage is a separate marriage of one man and one woman.”

But upon cross-examination, Prop 8 opponent Boies brought forth some of Blankenhorn’s own writing in which he stated that “we would be more American on the day we permit same-sex marriage than the day before.” Huh?!?!? The witness just contradicted himself! Boies also got Blankenhorn to state that he knows of no studies that show harm to children raised by homosexual couples.

Wednesday January 27

The last day of testimony in the Prop 8 trial in San Francisco started out with defense witness David Blankenhorn telling the court that “it would be better for gay people to be married because it would lead to stability, commitment, and lessening of promiscuity.”

Once again, the witness seems to be contradicting himself. This is the best that the defense can do? To be fair, they had scheduled several other witnesses, but they failed to show up, fearing opprobrium and reprisal if they testified against gay marriage in public.

Blankenhorn did manage to state his three rules for the structure of marriage, however:

1. It’s between two people.

2. It’s between a man and a woman.

3. It’s a sexual relationship.

Boies had the court laughing when he told Blankenhorn, “I don’t want to fall into the trap of making sex boring!” Blankenhorn shot back, “Maybe together we can do that.” At this point, everyone was cracking up, after two tense days in court.

Then Boies sharpened his knives and went on the attack once more, going after Blankenhorn’s claim that marriage is a “sexual relationship between a man and a woman.” “Are you aware of marriages where the couples do not have sex?” he thundered. “Where sex is not the basis for marriage?”

Blankenhorn said that if such marriages exist, “I would consider it grounds for divorce.” He conceded that it was possible that there might be an example of a husband and wife who “were not interested in sex, but I have never met one.”

With that exchange the evidence portion of the trial came to a close. Judge Walker will now go into chambers to consider all the evidence and testimony he has heard for these past three weeks, and it looks like he will issue his decision sometime in March, probably after a few more questions for both sides. Walker said he would schedule closing arguments after final written submissions from both the plaintiffs and the defense within the next 30 days.

Eric Malone has been writing about politics with a sardonic sense of humor through more than one apocalyptic Administration. He is a subversive dedicated to revolution through thoughtful laughter.