Proposition 8 Trial
(scroll down for latest news)
Tearful testimony on discrimination at Prop. 8 trial
The first day of the landmark case includes opening statements on the nature of marriage, a history of the institution and the struggles two same-sex couples have endured because they can't marry.
By Maura Dolan
Los Angeles Times
January 11, 2010
http://www.latimes.com/news/local/la-me-prop8-trial12-2010jan12,0,989948.story
A widely
anticipated federal trial over the constitutionality of California's ban on
same-sex marriage opened Monday, with lawyers and witnesses debating the meaning
of marriage and sexual orientation and gay and lesbian couples testifying about
the humiliation of being denied matrimony.
While supporters of same-sex marriage demonstrated in the fog outside the San
Francisco courthouse and the U.S. Supreme Court wrangled with whether to allow
video coverage of the trial, the case moved along briskly, with sometimes
tearful testimony from the two same-sex couples who brought the lawsuit and an
explanation of the roots of marriage by a Harvard historian.
The lawsuit charges that Proposition 8's reinstatement of a state ban on same
sex-marriage violates the U.S. Constitution's guarantees of equal protection and
due process. The constitutionality of the ban is expected to eventually reach
the U.S. Supreme Court as a landmark case.
Two legal giants -- former Solicitor General Theodore Olson and attorney David
Boies, who were on opposing sides in the high court case that gave George W.
Bush the presidency -- have joined forces in Perry vs. Schwarzenegger seeking to
eventually persuade the Supreme Court to overturn marriage bans.
In his opening argument, Olson called marriage "one of the most vital personal
rights" and a "basic civil right." Withholding it from gays and lesbians
"doesn't make sense," he said.
U.S. District Judge Vaughn R. Walker asked if the state should simply get out of
the business of issuing marriage licenses.
"That may solve the problem," Olson said, but it "would never happen."
Walker also asked Olson if voters are entitled to pass laws stemming from "moral
disapproval," such as prohibitions on alcohol.
Olson replied that U.S. history is filled with moral condemnation of people
based on their race, gender and ethnicity. Proposition 8, passed by 52.3% of
California voters in 2008, perpetuates discrimination "for no good reason,"
Olson said.
Charles J. Cooper, who is representing the Proposition 8 campaign and has argued
many cases before the Supreme Court, told Walker that a limitation of marriage
to opposite-sex couples has "prevailed in virtually every society since early
history."
Walker noted that many states once barred interracial marriage. Cooper replied
that those laws were based on a notion of "white supremacy," and not on a
long-standing tradition.
Cooper said the evidence would show that opposite-sex marriage is good for
children, and that the "procreative purpose of marriage" would be "diluted or
weakened" if same-sex couples were permitted to marry.
Asked what evidence exists to show that same-sex marriage would "radically alter
the institution of marriage," Cooper replied that data from the Netherlands will
show that it leads to a decline in marriage rates. He said it also would lead to
more children being raised outside of marriage and higher divorce rates.
But he added that same-sex marriage is still too rare and novel an "experiment"
to draw conclusions about its long-term impact. Noting that only five states and
seven countries permit gays and lesbians to wed, Cooper said, "The people of
California are entitled to await the results of that experiment."
Jeffrey J. Zarrillo, one of the plaintiffs, was the first to be called to the
stand. Zarrillo, 36, a manager in the entertainment industry, testified
tearfully about being denied the right to marry Paul T. Katami, his partner of
nearly nine years and a co-plaintiff.
"He is the love of my life," Zarrillo said. He testified that marriage "is the
logical next step" for him and Katami. It would send the message that they are
serious and committed to each other, he said. Checking into hotels with Katami
is often "awkward," he said, as clerks sometimes ask if they meant to reserve a
king-size bed.
To eliminate confusion and embarrassment, he said, he would like to say, "My
husband and I are here to check in for our room."
Asked whether he might one day marry a woman, Zarrillo said he felt no
attraction to or desire to be with a member of the opposite sex.
Katami, 37, a group fitness manager, called himself "a natural born gay" and
testified that being denied marriage felt like being "relegated to a corner."
"I don't think of myself as a bad person," Katami said in response to questions
from Boies.
During cross-examination, attorney Brian W. Raum noted that nothing in
Proposition 8 suggested that children needed to be protected because homosexuals
were bad. Katami was the only one of the four plaintiffs to be questioned by the
defense.
Raum, an attorney with the Alliance Defend Fund, a Christian legal advocacy
group, put into evidence a film clip of two parents in Massachusetts complaining
that their son's second-grade teacher read the class a book about two princes
getting married.
Olson questioned lead plaintiffs Kristin M. Perry and Sandra B. Stier, a lesbian
couple from Berkeley with four sons who were denied a marriage license in May.
The couple married in San Francisco in 2004, but their union and others were
later invalidated by the California Supreme Court because the state's marriage
ban was still in place.
When her marriage was invalidated, Perry, 45, who runs a state agency for
children, said she felt that "I am not good enough to be married." She said she
and Stier decided not to marry during the brief time same-sex marriage was legal
in California in 2008 because they feared it would again be struck down.
Advertising for Proposition 8 implied that voters needed to protect children
from people like her, Perry said.
"I felt like I was being used," she testified. "The fact that I am the way I am
and I can't change the way I am was being mocked and disparaged."
All of the plaintiffs testified that domestic partnership is substantially
different from marriage. They complained that they do not have access to the
word "marriage" to explain their relationships and feel either shunned or
pitied.
The day ended with testimony from Harvard professor Nancy Cott, an expert in the
history of marriage in the United States.
She said Cooper's opening statement that marriage between two members of the
opposite sex was universal was inaccurate. Ancient Jews were polygamous, she
said, and in some countries Muslims can marry several women.
In a 19th century case, she said the U.S. Supreme Court denied Dred Scott, a
black man, citizenship partly on the grounds that he was not permitted to marry
a white woman. The court said that was a "stigma that marked him as less than a
full citizen," she testified. "In marrying, one is exercising a right of
freedom," she said.
At the start of the trial, Walker announced that the Supreme Court had prevented
video coverage of the proceedings pending further review.
The high court's order will remain in effect until Wednesday. Walker called it
"highly unfortunate" that the federal court system has yet to resolve the
"public right to access."
Walker noted that 138,542 people had sent the court messages of support for
public dissemination of the trial and only 32 opposed it.
**********
Gays and Lesbians Have Been a “Despised” Category
Maura Dolan
Los Angeles Times
January 12, 2010
During the second day of a high-profile trial on same-sex marriage, a historian told a federal court that laws and police practices throughout U.S. history show gays and lesbians have been a "despised category," a minority that have been arrested, fired, harassed and censored because of sexual orientation.
"Gay life really was pushed underground," New York University history professor George Chauncey testified this afternoon.
Chauncey was the second expert witness to be called by lawyers for two same-sex couples who are challenging the federal constitutionality of Proposition 8, the 2008 ballot initiative that resurrected a California ban on same-sex marriage.
Because laws and police practices forced gays and lesbians to hide their sexuality and because the entertainment industry until recent years shied away from stories about homosexuality, "many young people growing up had no idea that there [were] other people like themselves," he said.
Similarly, many heterosexuals assumed they knew no gays or lesbians, which fostered dangerous and negative stereotypes, he said.
Chauncey cited early bans in the colonies against "nonprocreative" sex and later laws that banned sodomy. Police in large cities and small towns over the decades used vagrancy laws to arrest gays and lesbians and then informed their employers, landlords and families about the nature of the charges, Chauncey said.
"Gay life was enmeshed in a web of criminality," he said.
He cited a federal government report from the 1950s on homosexuals and "other perverts" and noted that federal law required intelligence agencies to fire suspected homosexuals. That requirement did not end until 1975, and it did not become illegal to discriminate against gays and lesbians in those agencies until 1990, he said.
Systematic discrimination against gays and lesbians "has lessened since the 1950s," Chauncey acknowledged, but he said 20 states still do not bar discrimination on the basis of sexual orientation in government jobs; 28 states do not bar such discrimination by private employers.
"The fear of homosexuals as child molesters or recruiters continues to play a role in debates over gay rights," Chauncey said.
***********
January 13, 2010
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/01/12/MNLL1BHD4R.DTL&tsp=1
Shortly before Christmas 2003, Kristin Perry took her girlfriend Sandy Stier for a walk near their Berkeley home. As they sat on Indian Rock, overlooking San Francisco Bay, Perry pulled a ring out of her pocket and said, "Will you marry me?" Stier, an Iowa farm girl who never met a homosexual until she was a teen, said yes. Then she got a confused look on her face. "What does that mean?" she asked.
Perry, 45, and Stier 47, are co-plaintiffs in the federal lawsuit challenging Proposition 8, California's voter-approved prohibition against same-sex marriage. Advocates say watching them describe their engagement - and the daily pain and awkwardness of not having a word to explain their relationship - would have humanized the issue in a way that realms of legal arguments cannot.
But outside of a few hundred observers in the U.S. District Court in San Francisco, nobody could hear, let alone empathize with them this week.
If the Supreme Court decides as early as today to continue blocking the federal court from broadcasting the trial on YouTube, advocates of same-sex marriage will lose a major part of the public education campaign they hoped to gain from the internationally watched trial.
On Monday, the court issued a temporary ban on video of the proceedings being uploaded on a delayed basis on YouTube. Chief U.S. District Judge Vaughn Walker approved the coverage last week in what would be a first for a federal trial.
Advocates hoped that video clips of the trial would circulate online, reaching new audiences in places like the Iowa town where Stier grew up.
"People need to see and hear these stories," said Rick Jacobs, chair of the Courage Campaign, the liberal online organization whose campaign inspired nearly all of the 138,542 people who urged the federal court to air the trial.
Prop. 8 supporters don't want cameras in court. Andy Pugno, a spokesman for the defendants, said witnesses feared being harassed if their images were televised. He declined to be specific.
While attorneys declined to cross-examine the women Monday, Pugno downplayed their testimony.
"Most of that heartfelt testimony had to do with purely private feelings," Pugno said. What matters more legally, he said, are the 7 million Californians who voted for Prop. 8, which won with 52 percent of the vote.
Jacobs and others began live-blogging the trial Monday as a way to share trial details that mainstream outlets wouldn't. As a gay man raised in Oak Ridge, Tenn., who didn't come out until he was 33, Jacobs knows the power of those details.
In a different way, so does Theodore Olson, the former solicitor general in George W. Bush's administration and one of the lead plaintiff's attorneys.
Olson writes in the current issue of Newsweek that he's urging fellow conservatives to embrace same-sex marriage instead of "having an almost knee-jerk hostility." YouTube could have helped, he said.
"I hope that someday the American people will get to hear first-hand testimony of what it is like to be a victim of discrimination in this way," Olson said Monday outside court.
Stier grew up in a loving, but culturally "isolated" Iowa family. She moved west to California after college, married a man in 1987 but quickly fell out of love with him. She divorced a dozen years and two kids later.
She didn't realize she was a lesbian until she met Perry, her student in a computer class and co-worker.
Perry called Olson "the sparkliest person I ever met." Perry grew up in Bakersfield, the heart of California's Bible belt. She knew she was different in high school, but she dated boys "to make life easier" and so she could go to parties.
************
Supreme Court cites 'irreparable harm' in blocking Prop. 8
trial footage
The justices, by a slim 5-4 majority, say the lawsuit over
California's ban on same-sex marriage is 'not a good one for a pilot program' to
allow video coverage of federal cases.
By David G. Savage
January 14, 2010
Los Angeles Times
http://www.latimes.com/news/nation-and-world/la-na-court-cameras14-2010jan14,0,5052143.story
By a 5-4 vote, the U.S. Supreme Court kept in place Wednesday its order blocking
video coverage of the trial of California's Proposition 8, with a conservative
majority ruling that defenders of the ban on same-sex marriage would likely face
"irreparable harm" if the proceedings were broadcast to the public.
"It would be difficult -- if not impossible -- to reverse the harm of those
broadcasts," the court wrote in an unsigned opinion. The witnesses, including
paid experts, could suffer "harassment," and they "might be less likely to
cooperate in any future proceedings." The high court also faulted U.S. District
Judge Vaughn Walker for changing the rules "at the eleventh hour" to "allow the
broadcasting of this high-profile trial" that will decide whether gays and
lesbians have a right to marry in California.
Though the opinion is unsigned, it clearly speaks for Chief Justice John G.
Roberts Jr., and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy
and Samuel A. Alito Jr.
The four liberal justices dissented and accused their colleagues of changing the
court's rules so as to "micromanage" a trial judge.
"The Court today issues an order that will prevent the transmission of
proceedings in a nonjury civil case of great public interest to five other
federal courthouses," wrote Justice Stephen G. Breyer. "The majority's action
today is unusual. It grants a stay in order . . . to intervene in a matter of
local court administration that it would not (and should not) consider. It cites
no precedent for doing so. It identifies no real harm, let alone 'irreparable
harm'. . . . And the public interest weighs in favor of providing access to the
courts."
Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor agreed.
The court's order means that the trial can be seen only inside the courthouse in
San Francisco.
Last week, Walker said the trial would be taped each day and posted on YouTube
each evening. On Monday, he revised that plan somewhat and said the video
coverage would appear on the court's website. He also planned to have the
proceedings streamed live to several courthouses around the country.
But the high court issued a temporary order Monday morning to stop the video
coverage. The extent of the split became apparent Wednesday afternoon when the
court issued the 17-page opinion and 10-page dissent.
The majority cited newspaper accounts from the last year to bolster its
contention that opponents of same-sex marriage have been "subject to
harassment," including "confrontational phone calls and e-mail messages" and
even "death threats." Under the court's rules, the justices do not intervene in
pending cases unless they are convinced that the appealing side has a strong
legal claim as well as evidence of "an irreparable harm" if the court fails to
act.
Breyer scoffed at the notion that the witnesses in this case would face harm,
because they have gone on television in the past to advocate their views. "They
are all experts or advocates who have either already appeared on television or
Internet broadcasts, already toured the state advocating a 'yes' vote on
Proposition 8," he said.
Advocates for equal marriage rights lambasted the decision. "The Supreme Court
just struck a huge blow against transparency and accountability," said Rick
Jacobs, chairman of the Courage Campaign in Los Angeles. "The five conservative
justices are enabling Prop. 8 supporters to mask their radical views. This
historic trial will remain largely hidden from public view."
But Edward Whelan, a conservative critic of Walker, praised the majority for
acting to rebuke him. He accused Walker of seeking a "show trial" in San
Francisco to intimidate and embarrass the defenders of California's voter
initiative prohibiting same-sex marriage.
***********
Gays make fine parents, psychologist testifies
Bob Egelko
San Francisco Chronicle
January 16, 2010
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/01/15/MNLG1BJ18V.DTL
A psychologist took aim at one of the central justifications for California's
ban on same-sex marriage in federal court Friday, saying researchers
overwhelmingly agree that gays and lesbians make just as good parents as
heterosexuals.
More than 100 studies have found that "children who are raised by gay and
lesbian parents are just as likely to be well-adjusted," Michael Lamb, chairman
of the department of social and developmental psychology at Cambridge University
in England, testified at the San Francisco trial of a lawsuit seeking to
overturn Proposition 8.
Lamb quoted the American Psychological Association's 2004 policy statement that
gays and lesbians are "as likely as heterosexual parents to provide supportive
and healthy environments for their children." Seven other nationwide
professional organizations have taken similar positions, he said.
Prop. 8, a November 2008 initiative, amended the state Constitution to define
marriage as the union of a man and a woman. The measure overturned a May 2008
state Supreme Court ruling that allowed gays and lesbians to marry.
The lawsuit by two same-sex couples and the city of San Francisco contends Prop.
8 discriminated unconstitutionally on the basis of sexual orientation and gender
and had no justification except prejudice. The nonjury trial, the first in any
federal court on same-sex marriage, began Monday before Chief U.S. District
Judge Vaughn Walker.
Protect Marriage, the religious coalition that sponsored Prop. 8, argues that
the measure was intended to promote traditional marriage because children are
better off with their biological parents.
A document on the Protect Marriage Web site, quoted in court, said studies have
found that same-sex parents are prone to "gender confusion" and are more likely
than heterosexual parents to abuse their children and to raise daughters who
become lesbians.
There is no evidence for those assertions, said Lamb, a child development
researcher for almost 40 years and former head of a section of the U.S.
government's National Institutes of Health.
"No research shows that kids need to be protected from gays or lesbians," he
said, and studies also contradict the claim that children are better off with
their genetic parents than with adoptive parents.
The only established differences, Lamb said, are that children of same-sex
parents are more likely to be bullied by their peers and are less likely to have
stereotyped attitudes about gender. For example, he said, they're less prone to
thinking that girls should aspire to become nurses while boys should become
doctors.
In cross-examination, Protect Marriage lawyer David Thompson labeled Lamb a
"committed liberal," citing his membership in such organizations as the American
Civil Liberties Union and the National Organization for Women, and his financial
contributions to the Public Broadcasting System.
Thompson also said scientific research is not immune from political influence
and that "history is littered with scientific theories universally accepted and
proven to be wrong."
He said other studies called Lamb's conclusions into question - for example,
research showing that children do better with biological parents than with
stepparents.
Lamb said such findings wouldn't shake his view that sexual orientation makes no
difference in parenting.
**********
January 22, 2010
http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2010/01/19/national/a093752S58.DTL
Lawyers for two same-sex couples challenging California's ban on same-sex marriage plan to wrap up their case Friday following the incendiary testimony of a proponent who said he thinks gays are more likely to be pedophiles and that allowing them to wed would lead to the legalization of polygamy and incest.
Hak-Shing William Tam of San Francisco spent five hours testifying Thursday as a hostile plaintiffs' witness to prove that bias toward gays fueled the 2008 campaign to pass the voter-approved measure, known as Proposition 8.
Tam, who was one of five individuals who signed on as official proponents of the ban and whose names appeared alongside ballot arguments for Proposition 8, acknowledged that he subscribes to beliefs about an alleged link between homosexuality and pedophilia posted on the Internet by a Chinese-American Christian group for which he serves as secretary.
"Do you believe that homosexuals are 12 times more likely to molest children?" attorney David Boies asked.
"Yeah, based on the different literature that I have read," Tam replied.
Earlier in the trial, a Cambridge University professor testified that there is no evidence to suggest that gays are more likely to molest children than heterosexuals. Boies pressed Tam to cite books, articles or authors he had read to substantiate the views, but Tam said he could not remember specifics.
Others involved in promoting Proposition 8 have tried to distance themselves from Tam. During a news conference outside court, lawyer Andy Pugno, a lawyer for the coalition of religious and conservative groups that backed the measure, said Tam had "next to nothing" to do with the campaign.
Tam testified that he spent a lot of time working on the campaign and communicated with its leaders but modestly added he did not consider himself a major player. He said became an official proponent because of his concern that legalizing same-sex marriage would encourage young people to pursue gay partners.
"I think it is very important that children won't grow up to fantasize or think about should I marry Jane or John when I grow up, because this is very important for Asian families."
Under questioning by Boies, Tam also said he agreed with a statement on the Web site for the Chinese-American Christian group that said if same-sex marriage was treated as a civil right, "so would pedophilia, polygamy and incest."
"And that is what you were telling people in encouraging them to vote for Proposition 8?" Boies asked.
"Yes," Tam answered.
Tam said he drew that conclusion after reading an Internet article that claimed incest and polygamy were legal in the Netherlands, a country where same-same marriages became legal in 2001.
Boies: You are saying here that after same-sex marriage was legalized, the Netherlands legalized incest and polygamy?"
Tam: "yeah, look at the date, Polygamy happened afterward.
"Who told you that? Where did you get that idea," Boies asked incredulously.
"It's the Internet," he said. "Another person in the organization found it and he showed me it...I looked at the document and I thought it was true."
Polygamy is not legal in the Netherlands, but the idea that it is became an urban myth of sorts in 2005 after a man and two women signed a private "cohabitation contract" while wearing wedding garb. Consensual incest between adults is no longer prosecuted in the Netherlands, but close relatives are not allowed to wed.
Under cross-examination from Nicole Moss, a lawyer for Proposition 8's sponsors, Tam said the opinions expressed on the Web site were his own and had not been approved by ProtectMarriage.com, the organization that ran the campaign, or submitted to its strategists for review.
"At any time during the campaign phrase or any phase for Proposition 8 did you have a role in drafting the official message for ProtectMarriasge.com?" Moss asked.
"No," Tam answered, adding that his contact with the campaign's staff was minimal. "I was acting independently."
Shortly before Tam left the witness stand, Boies asked him if he had spoken to his lawyer during a 5-minute break in his testimony. Tam said he had.
"I said I felt like naughty boy being put in front of a classroom and being mocked at," he said.
Plaintiffs lawyers expect to rest their case on Friday with testimony from a University of California, Davis psychologist who is scheduled to testify about prejudice against lesbians and gay men.
********
Bob Egelko
San Francisco Chronicle
January 26, 2010
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/01/26/BATI1BNRT6.DTL&type=printable
A political scientist testifying in support of California's ban on same-sex marriage acknowledged today that he has frequently criticized ballot measures that take rights away from vulnerable minorities, including a forerunner of Proposition 8.
In a lengthy cross-examination in San Francisco federal court, a lawyer for gay and lesbian couples who have sued to overturn Prop. 8 confronted Kenneth Miller with his own studies of the initiative process and what he concluded were its abuses.
In a 1999 article, for example, examining 40 years of initiatives in California, Oregon and Colorado, Miller and a co-author wrote that ballot measures affecting racial minorities or gays "can easily tap into a strain of anti-minority sentiment." He later wrote that courts need to be especially vigilant in reviewing initiatives.
And in a 2001 law review article, Miller said initiatives can impose "majority rule at the expense of certain minorities." He cited Proposition 22, a 2000 initiative that reaffirmed California's prohibition on same-sex marriages.
The state Supreme Court overturned the ban in May 2008, but the voters restored it by passing Prop. 8, a state constitutional amendment, less than six months later.
Miller, a political science professor at Claremont McKenna College in Southern California, testified that he has since changed his views after further research, and now thinks initiatives express "popular sovereignty" and serve as a counterweight to judicial excesses.
Massachusetts' high court went too far in 2003 by legalizing same-sex marriage, "taking that decision out of the hands of the people," he said.
In analyzing Prop. 22, "I was still thinking of majorities and minorities," Miller said. But he said he now believes "the people should have input on the definition of marriage" rather than "having it imposed by the court."
Miller, the first witness called by Prop. 8's sponsors in defense of the ballot measure, testified Monday that gays and lesbians have substantial political power, with strong allies among elected officials, corporations, unions, churches and the media.
Another political science professor, Gary Segura of Stanford University, testified for the plaintiffs last week that gays and lesbians have little real power and few reliable allies and are frequently the targets of ballot initiatives, as well as hate crimes and discriminatory laws.
One of the issues before Chief U.S. District Judge Vaughn Walker, who is hearing the case without a jury, is whether gays and lesbians are a persecuted minority who lack the power to protect themselves in the political system and require judicial protection to the same degree as racial or religious minorities.
Miller's testimony that churches were reliable allies of gays and lesbians drew a sharp rejoinder today from plaintiffs' lawyer David Boies.
Although the California Council of Churches, whose affiliates have 1.5 million members, opposed Prop. 8, Boies pointed out that the measure was backed by Catholics, evangelicals and Mormons.
Boies also cited an article last year in which Miller wrote that Prop. 8 passed because "California's Democratic coalition divided along religious lines," particularly in the African American and Latino communities.
*************
Bob Egelko
San Francisco Chronicle
Thursday, January 28, 2010
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/01/28/BAL51BOH1D.DTL
Testimony in the federal court trial over California's Proposition 8 ended Wednesday in San Francisco with an advocate of male-female marriage maintaining that the rights of gays and lesbians must give way to society's interest in promoting traditional families.
Sponsors of the 2008 constitutional amendment called David Blankenhorn, founder of the Institute for American Values, to make the case that allowing gay and lesbian weddings would weaken marriage - a potentially decisive issue in the clash over the ballot measure's constitutionality.
In two days of testimony, Blankenhorn predicted fewer heterosexual marriages and more divorces and one-parent households if marital rights are extended to homosexuals.
But a lawyer for gay and lesbian couples challenging Prop. 8 confronted Blankenhorn with his declaration in a 2007 book, "The Future of Marriage," that "we would be more American" if same-sex marriage were legalized. Blankenhorn sought to reconcile his statements Wednesday, saying gay and lesbian couples and their children would benefit but marriage as a whole would suffer.
Although same-sex partners deserve "equal dignity," Blankenhorn said, their interests conflict with every child's right to have a mother and father.
As he wrote in his book, he said, "the rights of gays and lesbians should take second place to the needs of an existing social institution," traditional marriage.
Prop. 8 amended the California Constitution to define marriage as the union of a man and a woman, overturning a May 2008 state Supreme Court ruling that allowed same-sex couples to wed. A lawsuit by two couples, joined by the city of San Francisco, claims the measure discriminates unconstitutionally on the basis of sexual orientation and gender.
Chief U.S. District Judge Vaughn Walker of San Francisco heard 12 days of testimony in the nation's first federal trial of a ban on same-sex marriage. He said he would schedule closing arguments after final written submissions from both sides, due in 30 days.
Prop. 8's defenders have argued that the constitutionality of traditional marriage is well-established and that they had no need to show the societal benefits of excluding gays and lesbians. But Walker invited such evidence in pretrial orders, indicating it might be needed to justify the ban, and Blankenhorn was the only defense witness to provide it.
Marriage, he said, has been universally defined as a socially approved sexual relationship between a man and a woman for the purpose of nurturing children.
He endorsed California's domestic partner law, which provides spousal benefits to same-sex couples. But he said allowing gays and lesbians to wed would hasten the "deinstitutionalization" of marriage that began a half-century ago with liberalized divorce laws and increasing adultery and cohabitation.
Most of the plaintiffs' 16 witnesses were academics who said modern research on marriage and children's well-being has debunked assertions like Blankenhorn's.
In cross-examination by plaintiffs' lawyer David Boies, Blankenhorn said leading scholars supported his conclusions, but gave few examples. He also defended his assertion that marriage is universally defined as being between one man and one woman, despite acknowledging that some cultures allow polygamy.
Even in polygamous marriages, Blankenhorn said, "each marriage is a separate marriage of one man and one woman."
*********
Jesse McKinley
New York Times
January 28, 2010
http://www.nytimes.com/2010/01/28/us/28prop.html
SAN FRANCISCO — Testimony concluded Wednesday in the first stage of the federal trial over the fate of Proposition 8, California’s voter-approved ban on same-sex marriage, as lawyers on both sides continued to argue their case to the news media.
A quick decision is not expected in the case, the first of its kind to reach federal court. Chief Judge Vaughn R. Walker, who heard the case without a jury, said he would study the evidence and other briefs offered to the court before hearing final arguments, possibly in March. And even after his decision, both sides expect the case to be appealed, most likely until it reaches the United States Supreme Court.
The plaintiffs filed their lawsuit last spring after the California Supreme Court upheld Proposition 8, which was passed in 2008 with 52 percent of the vote after a bruising and costly campaign. David Boies, one of the lead lawyers for the plaintiffs seeking to overturn the ban, said testimony during the trial’s two-and-a-half weeks had established three major points: that marriage is a fundamental right, that depriving gay people of that right caused harm, and that “there was no societal benefit to denying gays and lesbians the right to marry.”
“You heard it from not only our witnesses but from their witnesses,” Mr. Boies said. “They admitted what was at work here was a religious divide based on prejudice and stereotypes.”
But Andrew P. Pugno, general counsel for Protectmarriage .com, the leading sponsor of Proposition 8, said that while the plaintiffs had put on “a spectacular show,” they had nevertheless not addressed what he sees as the central issue of the case: whether California voters were within their rights to establish marriage as between a man and a woman.
“To invalidate the people’s vote, the plaintiffs have a really tough burden: they have to prove the people acted irrationally,” Mr. Pugno said. “That does not mean that there has to be choice between whether gay marriage is good or gay marriage is bad, but do the people have a right to decide?”
At least part of the strategy for both sides during the trial seemed to be geared toward getting evidence on the record, something Chief Judge Walker addressed in brief remarks from the bench, calling the testimony offered “abundant.”
Much of that was evidence offered by the plaintiffs, who spent two weeks addressing a wide range of issues, including the historical discrimination against homosexuals, the potential benefits of allowing same-sex marriage, and the emotionally charged accounts of two gay couples who brought the case and contend that Proposition 8 violates their constitutional right to due process and equal protection.
The defense was much more sparing in its case, presenting two witnesses over two and a half days. Mr. Pugno framed that decision as a sign of confidence, saying his side “could have turned this from a two-and-a-half-week trial to a five-week trial.” But he said he felt no need to address the “irrelevant issues the plaintiffs were raising.”
***********
Trial shows best interests of kids lies with marriage equality
Dana Rudolph
Feb 9, 2010
http://www.baywindows.com/index.php?ch=news&sc=glbt&sc2=news&sc3=&id=102133
Star witnesses for both sides in the recent Proposition 8 trial agreed on one thing: Children of same-sex parents benefit from having two parents who are happily married to each other. On Feb. 3, their testimony was cited in two friend-of-the-court briefs submitted by 17 organizations dedicated to the advancement of the social sciences and the promotion of mental health.
The testimony at trial was most stunning from David
Blankenhorn, an expert witness for the defenders of Proposition 8.
"I believe that adopting same-sex marriage would be likely
to improve the well-being of gay and lesbian households and their children," he
said, during his testimony as the last person to take the stand.
Dr. Michael Lamb, head of the Department of Social and
Developmental Psychology at the University of Cambridge and an expert for the
legal team challenging the California same-sex marriage ban, said that, "for a
significant number" of children being raised by same-sex parents, "their
adjustment would be promoted were their parents able to get married."
Both men’s testimony was later cited in an amicus brief
submitted by the California Division of the American Association for Marriage &
Family Therapy and 11 other mental-health professional organizations,
representing tens of thousands of therapists. It was also cited in a separate
brief from the American Anthropological Association, the American Psychoanalytic
Association, the National Association of Social Workers (and its California
chapter), and the American Academy of Pediatrics, California. The organizations
concur with the witnesses that the stigma of marriage inequality has negative
effects on the children of same-sex couples.
The positions of the two men were far from similar in other
respects, however.
Drawing on his more than 40 years of experience in
developmental psychology, Lamb explained the professional consensus on what key
factors affect the quality of a child’s development: the quality of the child’s
relationship with his or her parents or the adults raising them, the
relationship between those adults, and the circumstances in which the child is
being raised. The last consists of economic, social, and emotional supports.
The factors that make a good parent, he said, are the same
regardless of the parent’s gender. The important thing, he said, is that that
person is committed to the child, loves and focuses on the child, understands
the child’s signals and needs, and provides appropriate stimulation and guidance
as well as limits.
Lamb contradicted an assertion made by the defense -- that
children who grow up without a father are more likely to leave school, live in
poverty, and commit crimes. Lamb said that the research compared children who
grow up with a single heterosexual mother to those who grow up with two
heterosexual parents. He said one cannot conclude from such studies anything
about a child who grows up with lesbian and gay parents.
When Blankenhorn took the stand on Jan. 26, defense attorney
Charles Cooper brought up many of the same studies Lamb had dismissed as
irrelevant to lesbian and gay families. Blankenhorn endorsed their statements
about children faring better when brought up by both biological parents instead
of just one. Cooper did not have Blankenhorn attempt to counter Lamb’s criticism
of trying to apply those research findings to same-sex couples.
Blankenhorn said marriage was important in enabling children
to grow up knowing both their biological parents. He and Cooper spent little
time, however, trying to disprove the various studies Lamb had mentioned that
showed children of same-sex parents do just as well on various measures of
well-being.
However, another ’Yes on 8’ attorney David Thompson tried to
cast doubt on those studies during his cross-examination of Lamb. Thompson
repeatedly asked Lamb whether any of the studies showing positive outcomes for
children of lesbian and gay parents had compared the children of gay parents
with control groups of children of married, biological parents. Most did not.
The plaintiffs’ attorney Matthew McGill addressed this
during his redirect and had Lamb make an important point: that when comparing
same-sex parents to straight parents, researchers must be careful to compare
married same-sex parents to married straight parents or unmarried
same-sex parents to unmarried straight parents.
The point of Thompson’s initial question -- and Lamb’s
eventual response under redirect -- are worth examining more closely.
Dr. Abbie Goldberg, Assistant Professor of Sociology at
Clark University, recently published a book that compiles decades of research on
the subject. ("Lesbian and Gay Parents and Their Children," published by the
American Psychological Association: 2009) Goldberg thinks comparing lesbian- and
gay-parent families to heterosexual married biological parents "would conflate
sexual orientation with a number of other key variables that may have
implications for family and child outcomes." Those variables include the
possibility that the children were the product of a previous, heterosexual
union, that they were adopted, and that they were biologically related to only
one parent. Any of those factors, she wrote in a recent email, might lead to
differences with heterosexual, married, biological parents -- but the
differences might not be attributable to sexual orientation.
"We can always argue that we need the ’perfect study,’" says
Goldberg, "and yet we should be compelled by the consistency of the many studies
that have been conducted which -- again -- consistently show that children who
are raised by lesbian and gay parents do not show negative effects to their
psychological adjustment."
Goldberg is not alone in her thinking. The lead article in
the February 2010 Journal of Marriage and Family is "How Does the Gender
of Parents Matter?" by sociologists Timothy J. Biblarz of University of Southern
California and Judith Stacey of New York University. They discuss the difficulty
of separating out the parental factors that could contribute to children’s well
being, including gender, sexual identity, marital status, biogenetic
relationship to children and the number of siblings.
Based on their best efforts to look at previous research on
the subject and compare apples to apples, they conclude, "At this point no
research supports the widely held conviction that the gender of parents matters
for child well-being. To ascertain whether any particular form of family is
ideal would demand sorting a formidable array of often inextricable family and
social variables. We predict that even ’ideal’ research designs will find
instead that ideal parenting comes in many different genres and genders."
Instead of going up against that argument, most of
Blankenhorn’s testimony revolved around the historical definition of marriage as
an institution, and not on the question of whether children in fact fare better
with one parent of each gender.
Blankenhorn spoke at length about his reliance on a variety
of anthropological studies, particularly those of Claude Levi-Strauss and
Bronislaw Malinowski.
Dr. Ellen Lewin, a professor of Anthropology and Women’s
Studies at the University of Iowa, who has written many peer-reviewed
publications about lesbian and gay families, said Blankenhorn’s sources, "are so
old they have long beards, but the main thing about them is that I don’t think
they actually show what they purport to show...
"The basic story," said Lewin, "is that the most common
marriage form among humans is polygyny [having more than one wife], and if the
folks who claim 5,000 or however many years of human history as a justification
want to use that, we’d have to endorse polygyny. Historically, marriage is not
about love, or fidelity, or any of that stuff -- it’s about devising the most
efficient way of hanging onto, or acquiring new property and resources, children
among them. The notion that marriage has to do with personal commitments is a
very newfangled idea, that works in our culture and other advanced industrial
societies. And once you say that’s what marriage is about, there’s no way to
keep out same-sex marriage."
Lewin noted that the American Anthropological Association
(AAA) submitted friend-of-the-court briefs to both the California and Iowa
Supreme Courts in support of marriage equality. In the California brief, the AAA
stated, "Anthropological research on households, kinship relationships and
families -- across cultures and through time -- provide no support whatsoever
for the view that either civilization or viable social order depend upon
marriage as an exclusively heterosexual institution."
The brief from the AAA and its amici for the more recent
Proposition 8 trial asserts, "The positive benefits children accrue from being
raised by civilly married parents are independent of those parents’ sexual
orientation."
The brief from the therapy organizations agrees that
Proposition 8 "is based on nothing more than an unexamined and erroneous
assumption that same-sex couples are not as capable of being effective parents
as heterosexual couples," a claim that is "contrary to both logic and empirical
scientific record."
It may seem odd that Blankenhorn, a supposed expert on
fatherhood, spent so much time on the cultural understanding of marriage and so
little time discussing the impact of parents’ gender on children. The defense
might have decided that Thompson had already been over that territory with Lamb
and that Cooper’s brief reprise of the research with Blankenhorn was enough.
Still, after plaintiff’s attorney David Boies elicited
Blankenhorn’s testimony, on cross-examination, that allowing same-sex couples to
marry would likely improve the well-being of their children, it would
have been difficult for Blankenhorn to assert that such marriages were in some
way detrimental to the children.
Instead, he was forced into an argument about the need to
choose between two conflicting "goods" -- what is good for lesbian and gay
couples and their children, and what is good for "[renewing] our wider marriage
culture." This left the door wide open for Boies to pin him down on exactly how
allowing same-sex couples to marry would weaken heterosexual marriage as a
social institution. Instead of answering any of Boies’ questions directly,
Blankenhorn seemed to fall back on nitpicking about how the questions were
worded-to such a degree that the judge felt the need to warn Blankenhorn that he
might be undermining his own testimony.
During redirect, Cooper managed to get Blankenhorn to say
that domestic partnerships would be an acceptable solution to help same-sex
families but yet not weaken the traditional understanding of marriage. Earlier,
however, under cross-examination, Blankenhorn confirmed that he had written
essays saying that domestic partnerships and civil unions might endanger the
institution of marriage by blurring the lines between marriage and nonmarriage
relationships.
The amicus briefs filed on behalf of the plaintiffs after
Blankenhorn’s testimony clearly maintain that the stigma of being denied
marriage harms both same-sex couples and their children.
© 2010 Keen News Service.
Dana Rudolph is the founder and publisher of
Mombian, a blog and resource directory for LGBT parents. She can be reached
at
drudolph@mombian.com.
************
Tuesday, March 16, 2010
http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2010/03/16/national/a154422D70.DTL
An attempt by civil rights groups to keep sponsors of California's same-sex marriage ban from obtaining internal campaign documents could delay a verdict in the federal trial on the constitutionality of Proposition 8, lawyers on both sides said Tuesday.
Attorneys warned of the possible bottleneck during a hearing where a federal judge was asked to overrule a magistrate who ordered organizations that fought the 2008 ban to turn over memos and e-mails to lawyers defending the voter-approved measure.
"The real burden that is going to be imposed here if your honor affirms the magistrate's ruling is the resolution of these incredibly important issues is going to be delayed, whether you like it or not," ACLU lawyer Stephen Bomse told Chief U.S. District Judge Vaughn Walker.
The trial — the first in federal court to examine if the U.S. Constitution prevents states from outlawing same-sex marriage — has been on hiatus since late January, when Walker said he wanted to review the evidence before scheduling closing arguments.
At that time, the defense reserved the right to present more evidence before resting its case because its skirmish with the civil rights groups over the campaign documents was unresolved.
Walker heard more than 90 minutes of arguments Tuesday and said he would issue a written ruling later.
Three groups that opposed Proposition 8 are challenging U.S. Magistrate Joseph Spero's order earlier this month requiring them to hand over all documents "that contain, refer or relate to arguments for or against Proposition 8," with the exception of private communications between their core leaders.
At Tuesday's hearing, lawyers for those groups contended the disputed e-mails and memos were irrelevant to the case, and it was unfair to make the groups sift through tens of thousands of documents because they were not officially part of the litigation.
"We are not the people who sought passage of this initiative," Bomse said.
The wrangling mirrors pretrial disagreements between lawyers.
A federal appeals court eventually ruled that exchanges among top campaign officials about strategy and messaging could be withheld, but information disseminated more broadly was fair game in the trial.
Jesse Panuccio, a lawyer for Proposition 8 supporters, told Walker that it was only reasonable to require opponents of the ban to abide by the same disclosure requirements as supporters.
Plaintiffs have tried to prove that outlawing same-sex marriage serves no legitimate purpose, and the defense wants to see if their private conversations showed they thought otherwise during the campaign, Panuccio said.
If the judge forces the civil rights groups to turn over the documents by the end of March, a possible appeal could further push back the closing arguments, ACLU staff attorney Elizabeth Gill said.
***************
Tuesday, May 25, 2010
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2010/05/25/national/a132449D12.DTL
A federal judge overseeing a lawsuit challenging California's same-sex marriage ban is considering whether to allow closing arguments to be broadcast on television or the Internet.
Chief U.S. District Judge Vaughn Walker issued a notice Tuesday stating he would hear final arguments on June 16.
Walker heard more than two weeks of testimony in January but delayed closing arguments to allow lawyers to submit more evidence.
The Associated Press and other media organizations have requested that cameras be permitted in court for closing arguments.
Walker in January authorized real-time streaming of the proceedings for viewing in other federal courthouses and a delayed transmission on YouTube. But the U.S. Supreme Court blocked the broadcasts at the request of Proposition 8 sponsors.