Everyone packed into U.S. District Court Judge Vaughn Walker’s courtroom in San Francisco on Jan. 11 knew they were watching history.
On one side of the court sat lawyers Ted Olson and David Boies, partisan foes in Bush v. Gore. Now the straight pair pledged to prove that same-sex couples deserved the fundamental right to marry. For them, the meaning of the U.S. Constitution is at stake.
On the other side sat Republican attorney Charles Cooper and a handful of supporting lawyers. It was what some might consider a strange sight. After the passage of Proposition 8 in California, the loss of same-sex marriage in Maine, New York and New Jersey and the gloating by ProtectMarriage affiliates such as the National Organization for Marriage, the anti-gay forces looked weak. In fact, throughout the trial, they portrayed themselves as David fighting Goliath.
Retired philosophy professor Linda Hirshman, reporting for The Daily Beast web site, pronounced the matchup a modern day Scopes trial.
“In the confrontation between an irrefutable religious standard and a worldly empirical survey, the challenge to California’s prohibition on gay marriage reveals a fissure that runs throughout American history: Are we modern or are we medieval?” Hirshman wrote. “Do Americans live together in a social contract for our material well-being, or are we following ancient traditions of how to live, because tradition is a better teacher than reason? This issue does not surface often in the United States, but it did most powerfully almost 90 years ago in Scopes vs. the State of Tennessee, the ‘monkey trial.’ And it did so again this week.”
The Scopes trial pitted the teaching of secular science and intellectual freedom against traditional Bible-based Christian fundamentalism. It’s a clash as old as St. Thomas Aquinas’ “Summa Theologiae” and as fresh as the 2005 debate over whether creationism should be taught alongside the theory of evolution in the Kansas public school system.
For Prop 8 supporters, the trial is now posited as if freedom of religion itself is at stake. In a Jan. 26 column, “Putting Religion on Trial?”, NOM president Maggie Gallagher wrote that Olson and Boies are trying to invalidate the religious beliefs of millions of voters who hold that homosexuality is a sin and marriage is a sacrament between one man and one woman.
“The stakes are high. And the argument they will be asking the Supreme Court to endorse is this: Only bigotry, hatred and unreason explains why anyone cares about the idea that to make a marriage you need a husband and a wife — religious views of marriage are just anti-gay bigotry,” Gallagher wrote.
Anti-bigotry is one of the central elements to proving the case that lesbians and gays have historically been subjected to discrimination and deserve equal protection and due process under the U.S. Constitution. Walker, the Ninth Circuit Court of Appeals and perhaps the U.S. Supreme Court will decide if the plaintiffs proved that gays are a “discrete” minority, possess an “immutable” characteristic and are powerless to protect themselves in the political process.
“We said on the first day of [the] trial we would prove three things,” Boies said at a news conference after the evidentiary trial testimony ended Jan. 26. “Marriage is a fundamental right; that depriving gays and lesbians the right to marry hurts them and hurts their children; and there was no reason, no societal benefit, in not allowing them to get married.”
Evan Wolfson, founder of Freedom to Marry, said the arguments were compelling.
“Our side powerfully showed that California’s selective stripping away of the fundamental freedom to marry from a vulnerable minority lacked any legitimate reason, and harms families while helping no one,” he said. “Fourteen years and tens of millions of dollars after our Hawaii case, the anti-gay opponents had literally nothing new to put forward to defend the discriminatory denial of marriage.”
Olson and Boies entered reams of documents into evidence and put 17 witnesses on the stand. The plaintiffs spoke movingly about their loved ones and a slew of expert witnesses contributed a wealth of knowledge to the evidentiary record.
In some cases, the testimony was almost ironic. For instance, in his opening statement, Cooper said “the purpose of the institution of marriage, the central purpose, is to promote procreation and to channel narrowly procreative sexual activity between men and women into stable enduring unions. … [Marriage] is a pro-child societal institution.”
But Harvard University professor Nancy Cott noted that, “There has never been a requirement that a couple produce children in order to have a valid marriage. … And known sterility or barrenness in a woman has never been a reason not to allow a marriage. In fact, it’s a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile.”
ProtectMarriage only called two of their five witnesses to the stand. So Olson and Boies introduced the depositions of the dropped witnesses into evidence, which appeared to bolster the plaintiffs’ case.
New Yorker contributor Margaret Talbot wrote that Boies’ cross-examination technique “was a little like watching your cat play with his food before he eats it.”
Indeed, Boies seemed to make mincemeat of official Prop 8 proponent Hak-Shing William Tam, who was called as a hostile witness. Tam stood by claims that gays were 12 times more likely to molest children, “based on the different literature that I have read.”
ProtectMarriage called California’s Claremont McKenna College political science professor Kenneth Miller, whose credibility as an expert on gay political power was mightily challenged by Boies on cross examination. Boies also read from a book Miller co-authored that ballot initiatives or “direct democracy can actually be less democratic than representative democracy.”
ProtectMarriage’s second witness, David Blankenhorn, was so combative, the judge reprimanded his demeanor. Boies had Blankenhorn, author of “The Future of Marriage,” go down a list of “possible positive consequences” of same-sex marriage and mark the statements with which he personally agreed.
Among the many positive statement with which Blankenhorn agreed were, “gay marriage would extend a wide range of the natural and practical benefits of marriage to many lesbian and gay couples and their children,” and “same-sex marriage would likely contribute to more stability and to longer-lasting relationships for committed same-sex couples.”
Chad Griffin, chair of the board of the American Foundation for Equal Rights, said he was thrilled that the trial put “those who attempt to provide justification for discrimination” under oath for the first time.
“I think they found in a court of law, it’s quite different from on a political campaign where you can say anything and get away with it,” Griffin said. “In a court of law, you’re under oath and you actually have to tell the truth — and you have to answer to those truths under oath. And I think that proved difficult for the defendant-interveners in this case.”