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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 http://www.mercurynews.com.
Copyright (c) 2010, San Jose Mercury News, Calif.
Distributed by McClatchy-Tribune Information Services.

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