February 5, 2010 at 12:47 pm EST | by Karen Ocamb
Prop 8 trial spotlights clash of cultures

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.”

  • When do we resume our practice of marriage equality?

  • I wouldn’t necessarily compare this to the Scopes trial. That was a spat over educational material and its use. This is a whole different level of applicable law, one that can broadly impede millions in their everyday lives and ongoing relationships.

  • I dont understand why anyone cares if two men or two women get married. I dont care about joe blow down the street getting married to his wife… It just doesnt make sense. Who does it hurt to let them get married? Come on America, join the 21st century.

  • To repeat the words of a wise woman,(Dolly Parton) same sex partners chould have the chance to as miserable as evwryone else who is married. I plan to tie the knot with my partner ASAP

  • Let me try this again.To repeat the words of a wise woman(Dolly Parton) why should’nt same sex couples have the same chance to be as miserable as the stright couples who are married.

  • ok mika my family has the same mind set let them be miserable to. but when you get married and get miserable then it is not a maraige in the eyes of god. and Tizzieit matter because its about relgion thats all and where you go when you die.

  • jimmi street, if it’s about religion and where you go when you die, then it doesn’t have anything to do with you, or any other marriage for that matter, does it?

    To clarify, my relationship, religion, and final destination are all mine. Who I marry, in your faith, may damn me, among other things. But it doesn’t destroy you, correct?

    Under that premise, you, and all the others who argue religious conviction need to keep perspective that, as the others have said, this does NOT affect you. It affects no one else. And you do not have the right to impose your religious views on me, especially when I consider how much more devout I am in my faith than most other Christians I’ve met, particularly bigotted ones. There is no threat and justification.

  • jimmi street: Here in America, we have something called separation of church and state. If something is “about relgion thats all and where you go when you die,” then what business is it of secular government?

  • Hopefully the Judge will make the right decision and overturn Prop 8. The trial did a good job at pointing out the illogical and discriminatory reasons for Prop 8 – it’s based on hate, religion, and homophobia and nothing else..

  • At its very heart this is a Civil Rights issue more than anything. Under the constitution all Americans, regardless of race, religion, gender, and sexual orientation, should have certain rights guaranteed to them. The right to marry who you want to is one of those rights. As a Christian, I can’t help but be in favor of overturning proposition 8 because it violates what I consider to be the greatest commandment that we teach: “Love thy neighbor as thyself.”

  • This article was written in a grossly biased manner.

    And as far as some of the comments on here go…It’s completely false to say that only recognizing Marriage between a man and woman is based on hate, religion, and homophobia and nothing else..

    The More the so called Equality camp tries to sell “gay marriage” as such, the more supporters will slip through their fingers. People are reasonable and you aren’t going to win your way into anyones heart by insulting their intelligence or their beliefs.

    Marriage despite it’s religious ties has it’s roots deep in observable facts. When men and Women come together and bond, their bond, unlike any other in the entire world brings about new life. Their love brings about new life. Hence Marriage came about to strengthen that bond and to protect those children. It’s a celebration of Man and Woman of the possibility of new life. Marriage is an insitution for children. Man and Woman have the right of marriage.

    People who experience attraction to the same sex are no more opressed than me, a single male for not participating in the institution of Marriage. I’m single, i have no marital benefits, i’m not opressed. I understand my place in Society and I like that there exists an institution to encourage the bond of men and women who bring about the next generation and nurture their offspring in that setting.

    To butcher that foundation for the wants of a very small minority is to turn the institution of marriage into a Sham for everyone.

  • Gabriel:

    1. Were you a supporter of the “Stop Sterile Marriage” movement?

    2. Your comparison with single people proves too much, since it could justify any form of discrimination in marital law. It is also a good argument for privatization of marriage, which runs counter to what you’re ostensibly arguing.

  • Doctor Whom

    1. No

    2. My comparison was valid because Marriage is deaf blind and dumb to single people as it is to people who experience same sex attraction and relatives of close blood ties. I’m currently opted out of the Institution because I do not meet the minimum requirement. Neither do people who experience attraction to the same sex.

    My comparison does not leave the door open for any form of Discrimination. If people think it will strengthen/weaken Marriage to make it more exclusive for reasons of fertility then they should vote. The fact of the matter is that the position of gay Marriage proponents does open the flood gates to any type of interpretation turning Marriage into a complete sham. Why 2 consenting adults? Why not 3 or 4? Once you argue that Marriage isn’t about “Men or Women” “Children” “Love” “Exclusivity” “commitment” as has been argued by proponents of Gay marriage then you’ve turned the Institution of Marriage into something else entirely. A sham.

    Marriage wasn’t instituted because the government cares about which consenting adult you give your Valentines day card to. It was created based on a reasonable Societal need. An observable fact. When Men and Women come together, they bring about the next generation. The Love of a Man and woman has the power to bring about new life. Family.

    You have the “Right” to believe in whatever you want no matter how delusional it is and as long as it doesnt harm anyone else. However, It is not a “Right” for you to redefine for everyone and strip away the meaning of our most foundational pro-child, pro-family Public institution based on your delusion.

    You don’t like it? Vote.

  • Gabriel, you’ve amply demonstrated that your position is internally inconsistent.

  • Gabriel–get a clue–YOU do not get to define marriage. In every equal rights movement it has upset those in power that someone else go the same right. Traditionally, women didn’t vote either. You would probably come up with a good argument about why they wouldn’t either. The institution of marriage is strengthened by adding same sex partners. Why have a bunch of people running around and not paring off and settling down into family units. It strengthens family units and reduces STD infection–for gay people, just like it does for straight people.
    Your slippery slope argument about multiple partners has nothing to do with same sex marriage. Straight marriage opens the door to multi-party marriage just as much as a Gay marriage does. As someone that grew up Mormon, and who is straight, and a lawyer…..I’m just glad that history will have me on the right side of this argument.
    OH, and last I checked–Marriage is a fundamental right, one that has been denied to some for too long. in Loving v. Virginia, (which made it legal for black and white persons to marry) the district court gave a long schpeel about how it would be against God for blacks and white to marry, and was against nature…hum…who hasn’t heard that BS right here?

  • [Gabriel]

    “created based on a reasonable Societal need?”
    I’m sorry but when my parents got married, I don’t think they did so cause society was going through a crisis. I think it was because they loved each other.

    And that’s what marriage is about: Joining the hands and of two people who love each heart and soul. Marriage is an instituion for love; yes children are a output in most cases but you know what? I bet you have a single mom living near you who never married but had a kid.

    If marriage is a instituion for children then apparently all the people who had kids due to pre-marital sex are married. Yeah I think I see a ring on every pregnant teen in my school.

    And for your information, same-sex marriage doesn’t eliminate pro-family ideals. Why do you think same-sex couples wish to adopt? To give a child a family. I think that’s pro-family there.

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