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As Testimony Ends in Proposition 8 Trial, Both Sides Figure They Won

posted by mconsoli

Jan. 28–SAN FRANCISCO — The Proposition 8 trial ended on Wednesday, having provided an unprecedented glimpse into the social conflict over whether same-sex couples should have the right to marry and serving as the first stage of a prolonged legal battle that all sides insist is destined for the U.S. Supreme Court.
Perhaps not surprisingly, both foes and supporters of California’s ban on same-sex marriage came away convinced of the same thing: that they won the nearly three weeks of skirmishing in the first federal court trial to tackle the same-sex marriage question.
“The American public has gotten a sense of what the facts are,” said David Boies, who, along with former Republican U.S. Solicitor General Theodore Olson, was enlisted to represent same-sex couples in the challenge to Proposition 8. “We’ve exposed to daylight the paucity of arguments on the other side.”
Andrew Pugno, counsel for Proposition 8, said all the plaintiffs did in the trial was “put on a spectacular show” that belongs in a political debate over same-sex marriage but is “irrelevant” to the legal issues.
There are still a few loose ends in the case before Chief U.S. District Judge Vaughn Walker decides the legality of Proposition 8, the 2008 voter-approved law that restored California’s ban on the right of same-sex couples to marry. The two sides have a month to file legal briefs. Walker then plans to hold closing arguments, indicating Wednesday that he would “tee up some questions” for the lawyers by then.
As a result, it is unlikely to be until later this spring before the judge rules on the constitutionality of the state’s same-sex marriage ban.
In the meantime, Wednesday’s final testimony was a reflection of the tension that marked the competing positions in the trial.
David Blankenhorn, the leader of a national family values organization, was one of two Proposition 8 defense witnesses called to testify on the central role of procreation in marriage and his contention that same-sex marriage would lead to the “deinstitutionalization of marriage.”
During hours of cross-examination Tuesday and Wednesday, Blankenhorn and Boies bickered, argued and shouted each other down, underscoring the heated differences that exist over whether procreation should be a reason to deny marriage rights to same-sex couples.
Boies hit Blankenhorn hard on some key points, including revealing that in his own writings, Blankenhorn appeared to support same-sex marriage, saying it would lead to more lasting relationships for gay and lesbian couples, improve the climate for children and reduce promiscuity.
Plaintiffs lawyers argue that procreation is not a prerequisite for heterosexual
marriage, and that a law such as Proposition 8 is fueled by anti-gay bias, not family values. Pugno, Proposition 8’s counsel, maintains that producing children is the best argument for shooting down the legal challenge to the same-sex marriage ban.
“There is no other relationship that serves that distinctive purpose,” he said outside court. “That’s the defense. If we can show that, we prevail.”
The argument against the ban, meanwhile, rested throughout the trial on three central themes: that marriage is a fundamental right under U.S. Supreme Court precedent; that Proposition 8 causes harm to same-sex couples and their children; and that the law, as Boies put it, “serves no societal benefit.”
Through expert witnesses and gays and lesbians who recounted their experiences, the plaintiffs contend they’ve proved that Proposition 8 violates the equal protection provisions of the U.S. Constitution. Whatever Walker decides, the case is likely to head next to the 9th U.S. Circuit Court of Appeals.
To see more of the San Jose Mercury News, or to subscribe to the newspaper, go to
Copyright (c) 2010, San Jose Mercury News, Calif.
Distributed by McClatchy-Tribune Information Services.

  • JohnQ

    David Blankenhorn, the leader of a national family values organization, was one of two Proposition 8 defense witnesses called to testify on the central role of procreation in marriage and his contention that same-sex marriage would lead to the “deinstitutionalization of marriage.”
    Pugno, Proposition 8’s counsel, maintains that producing children is the best argument for shooting down the legal challenge to the same-sex marriage ban.
    “There is no other relationship that serves that distinctive purpose,” he said outside court. “That’s the defense. If we can show that, we prevail.”

    First, if procreation is the central role of marriage then why do marriage lic applications not ask the couple to guarantee to have children?
    Second, I am shocked at my age to discover that to produce children a male and female must be married. That apparently being the case…then, why have some children been termed to be “out of wedlock”.
    Finally, how can Blankenhorn claim to be with a national family values organization when in fact he is attempting to obstruct gay and lesbian families. He should claim to be with a heterosexual supremacy organization. That would be more factual.

  • cknuck

    JohnQ quote, “Second, I am shocked at my age to discover that to produce children a male and female must be married.”
    JQ I’m shocked as a Christian you would endorse any other way.

  • Gwyddion9

    I am truly happy to see this court case take place. I am equally happy to see the religious reasoning as to why SSM shouldn’t be allowed, shot down too.
    I’m looking forward to actually being able to marry, as a gay man.

  • JohnQ

    Move to New England and you can do it now. We were married in our church by our minister last year here in CT after being together for 14years. I did not think it would be a big deal after being together that long. I was wrong! I do not have words for how I felt (and still feel) after the ceremony. I am so very glad we went ahead and got married.

  • JohnQ

    I did not mean to indicate that I do not think marriage is a good idea. Quite the contrary….I believe strongly in marriage. Further, with or without marriage, I think that people should not enter into parenthood lightly. It is just that Pugno makes it appear as though he is suggesting that there can not be pro-creation without marriage. If only that were true, perhaps there would not be quite so many children awaiting adoption.

  • nnmns

    I’ll give the anti-Gay Marriage folks more credibility when they urge marriages be dissolved when a couple’s children are all over 18 and either of them is sterile, for whatever reason. If marriage is for procreation why on earth allow old non-procreating people be married?
    And when are the old non-procreating prop 8 supporters going to start walking their talk and get divorces?

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  • jestrfyl

    The headline makes this whole exercise seem as meaningful as a T-Ball “game” – everybody wins, everybody gets pizza after the game/hearing.
    As long as this is a win/lose discussion no one will “win”. We need to find more constructive ways to deal with topics that are so intensely divisive.

  • Grumpy Old Person

    “producing children is the best argument for shooting down the legal challenge to the same-sex marriage ban”
    Then what a weak “argument”. “[P]roducing children” isn’t required of any heterosexual marriage; why on earth would it be required of gay couples???
    If that’s the best they can do, then simple logic (and the Constitution) will require that Prop 8 be struck down.

  • Grumpy Old Person

    “”There is no other relationship that serves that distinctive purpose,”
    More blarney. Millions (literally!) of non-married couples can and DO “produce children”.

  • Grumpy Old Man

    “I’m looking forward to actually being able to marry, as a gay man.”
    Gwyddion, you already CAN marry, legally. Take a vacation to Canada. There’s no residency requirment, and you will be LEGALLY married.
    What happens after that is up to you. But as a Canadian equal marriage advocate, I always suggest that you return to your home and pursue justice via legal venues.
    For example, when heterosexuals come back married after vacationing abroad, their LEGAL marriages are automatically recognized by all Federal and State and Municipal governments.
    Under the Equal Protections Clause of the US Constitution, you should get equal treatment before the law. Under the Full Faith & Credit Clause, you should also have a legal marriage that may/should be/is recognized in one State (say you married in Iowa) recognized in ALL other States/jurisdictions.
    Demand it. Even Federally. Ask your lawyer (and your Congresscritter and your Senator and your President and, if necessary, your employer) why should your legal homosexual marriage (from any of the 6 States or a dozen or more countries that perform them) not be recognized (for pension/inheritance/decision making rights, etc.) by YOUR government/s yet heterosexual ones are?
    Take an injustice to court.
    Demand the equality you’re entitled to, Constitutionally.
    That’s how we won equality here.
    Yes, I know there are costs involved, both financial and emotional. I also know that it involves being out of the closet. And I think it is worth all the costs to be able to live open, honest lives, free and EQUAL citizens.

  • cknuck

    even though producing children is not required for marriage it is a distinction that makes marriage what it is in the one man one woman design for marriage, which has been the standard forever, its not because it of any forced law, its because it is right.

  • pagansister

    cknuck, producing children makes heterosexual marriage distintive? Wonder if the m/f can’t produce children…can they adopt and still make marriage what it is designed to be? After all,it is “right” and the “standard forever!? Or is it different if they can’t produce their own kids? Just thought I’d ask.

  • nnmns

    cknuck, do you have any more children of your own in your future? Are all you already have on their own? If so, then by your words you are demeaning marriage and you should get a divorce. Now.
    And you should tell everyone else you see in that situation to get divorces. Otherwise you are not living up to what you require of others and that’s hypocrisy.

  • jestrfyl

    What about raising children as a function of marriage. I know several homosexual couples (both genders) that are raising well balanced, insightful, intelligent children that are considered assets to their schools, teams, and communities. I think it should be quite legal for homosexual couples to adopt and raise children. Marriage is not all about sex or even sexual reproduction. It is about creating a loving bond in the commitment of marriage and fostering that in the next generation. So can we count on your support?

  • cknuck

    Even if a man and a woman cannot have children they still fall in the model of marriage as God’s design. There is no reference in any ancient literature concerning God, (Bible, Torah, Koran ect) where there is a model of God creating homosexuals or homosexual couples or homosexual couples producing kids to form a family. Homosexuality came from the mind of man as homosexual marriage. Homosexuality turns man away from God as it rejects God’s design for people.

  • nnmns

    I’ll guarantee there’s no mention of computers in any of those old books cknuck. That must mean computers turn man away from “God” too.
    Yet you keep using yours.
    Christians select what they take away from the Bible, cknuck, and too often you select bad parts.

  • jestrfyl

    The Bible also makes no mention of cats, gulls, or sharks (or a huge number of other critters). That does not mean they did not exist. It is just as likely that they were so much a part of things that they simply were accepted and not dealt with separately. The same could well be true of homosexuals.

  • Mordred08

    The Bible may mention same-sex rape at one point (said point could be said to condone men raping women), but other than that, nothing. It seems the people who wrote the Bible had as much of an understanding of homosexuality and homosexual people as the Proposition Straight crowd does now.

  • cknuck

    jest the bible does mention homosexuality in a negative content.

  • pagansister

    Unfortuately the Newsweek I’m getting these quotes from is the January 18, 2010 issue and probably in the trash/recycled by those who take it. I’m behind in reading it because of vacation. Having said that the cover page is: “The Conservative Case for Gay Marriage”. It is the title of the article written by Theodore B. Olsen. (no, I hadn’t heard of him either until I read it). He makes so many good points and I can’t put the whole article here so I will quote the highlights. Subtitle is: “Why same-sex Marriage IS and Amberican Value.” Mr. Olsen was involved with this case to overturn California’s ban on gay marriage. He is a lifelong Republican, and conservative.
    First Quote: “I do not believe that our society can ever live up to the promise of life, liberty, and the pursuit of happiness until we stop this invidious discrimination.”
    2nd Quote: “Simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors’ prisons.”
    3rd Quote: California recognizes marriages involving persons on death row, child abusers and wife beaters. But not loving, stable partners of the same sex.”
    Just thought I’d throw this in for fun. Mr. Olsen is a WISE man!

  • pagansister

    I just reread the article and realized that Mr.Olsen is mentioned in the above article. So much for my “intro” to him involving the Newsweek article. Pardon the typos in copying the article. If any of you are interested, maybe you can find a copy of that Newsweek. The article is well written and the arguments that have been brought up to deny recognition of same gender marriages are shot down by common sense!

  • Your Name

    Yet again the delusional ‘right’ ignores reality:
    “one man one woman design for marriage, which has been the standard forever”
    Forever? BWAHAHHAHAHHAAAAA!!! Even your “bible” sez differently.
    Get a grip – on reality, ck.

  • cknuck

    Is that some sort of demonic laugh

  • david s

    It should go without saying that a person should be allowed to marry whomever they choose. Until the right-wing, religious fanatics in this country stop trying to control everybody else and force their “morals” down the throat of the country, there can be no real freedom in the United States. Civil rights cannot simply be “voted away,” that is the purpose of the Bill of Rights. Religious activists should be left out of these decisions completely. I invite you to my web pages devoted to raising awareness on this puritan attack on our freedom:

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