Prop 8 Testimony Ends With Only a Brief Defense

SAN FRANCISCO (Jan. 28) – Attorneys for the plaintiffs in the landmark trial challenging California's ban on same-sex marriage put on two weeks of testimony from a slew of experts. The defense took barely two days.

The plaintiffs offered scholars from top universities who testified about the history of marriage, gays' struggle for political power and the psychological harm of discrimination. The defense called two witnesses – both of them experts who struggled during withering cross-examinations and conceded many of the plaintiffs' points.

One of the defense's witnesses even acknowledged that he once wrote allowing same-sex marriage would make us "more American."

Final arguments won't come for at least a month. But when the testimony ended Wednesday after 12 days of trial, attorneys for both sides in the battle over Proposition 8 confidently said they had made their case.

Andrew Pugno, one of the lawyers defending the initiative, said the plaintiffs had the tougher burden of proof and needed to show that voters acted irrationally in approving the measure in 2008. He complimented the plaintiffs' attorneys "for putting on a spectacular show" but said they had not met that test.

"The best thing for a child is to have both a mother and a father," Pugno said. "Same-sex couples can never offer a child both a mother and a father. Believe it or not, that's the defense."

Proposition 8 is being challenged by a gay couple from Burbank and a lesbian couple from Berkeley who say they are being denied their right to marry the person of their choice in violation of the U.S. Constitution.

The case will be decided by Chief U.S. District Judge Vaughn Walker, an appointee of the first President Bush. Walker is hearing the case without a jury. He postponed the attorneys' closing statements while he reviews the evidence. He will set a date for final arguments after he receives written submissions from both sides on Feb. 26.

Whoever wins in district court, the matter is widely expected to end up before the U.S. Supreme Court.

The plaintiffs' legal team carefully constructed a body of evidence to prove that gays and lesbians are a class of people who face discrimination because of their sexual orientation and are being denied their constitutional rights.

"I think we clearly proved historic discrimination not just through our witnesses but through theirs," said David Boies, one of the lead attorneys for the plaintiffs. "There is no basis for prohibiting gays and lesbians from getting married. It doesn't hurt anyone."

The defense began presenting its case late Monday morning with Claremont McKenna College political science professor Kenneth Miller, who testified that gays and lesbians have political influence in California.

But under cross-examination from Boies, Miller acknowledged that gays and lesbians are subject to discrimination. As examples, he cited the military's "Don't Ask, Don't Tell" policy and Proposition 8's ban on same-sex marriage.

"Looking at the institution of marriage, the state does treat heterosexual couples differently than same-sex couples," he conceded.

The final witness for the defense was David Blankenhorn, founder and president of the Institute for American Values, who was offered as an expert on marriage.

He testified that allowing gays and lesbians to marry would weaken the institution of marriage and possibly result in more divorces and fewer heterosexual marriages.

But during Boies' cross-examination, Blankenhorn acknowledged that he wrote in a 2007 book that the United States would be "more American on the day we permit same-sex marriage than we were on the day before."

Later in his testimony he explained that he believed same-sex marriage would benefit gay and lesbian couples and their children but that outlawing their marriages was of greater benefit to society as a whole.

"With some anguish, I would choose children's collective needs over the rights of same-sex couples," he said.

Much of the final morning of testimony was consumed by sparring between Blankenhorn and Boies. The witness, often testy and defensive, resisted answering questions with a "yes" or "no" and treated the session more as a debate than a cross-examination.

At one point, Judge Walker advised him that as an expert witness, his demeanor would be taken into account along with his words.

But the morning was not without humor.

Blankenhorn testified about his belief in the three "rules" of marriage: it involves a man and a woman; it is for two people; and the couple has a sexual relationship.

Boies questioned him about exceptions to the rules, including the widespread practice of polygamy in the past. Blankenhorn countered that a man who had multiple wives was not an exception because he married each wife separately.

Moving on to the third rule, Boies said: "Now let's turn to the question of sex."

Blankenhorn: "That's a good subject."

Boies: "I wouldn't want to fall into the trap of making sex boring."

Blankenhorn: "Maybe together we can do that."

The exchange prompted a prolonged outburst of laughter in the courtroom.