ADF response to Calif. Supreme Court's decision to hear 9th Cir. question in marriage amendment case

U.S. Census: Married households vs. same-sex households

Website: ProtectMarriage.com

Bio: Andrew Pugno, Law Offices of Andrew P. Pugno

Bio: Charles J. Cooper, Cooper & Kirk, PLLC

How does same-sex “marriage” affect you or your marriage?

Quotes from legal experts and analysts who find district court decision in Perry v. Schwarzenegger unpersuasive

ADF Senior Counsel Jordan Lorence:

I was privileged to sit in the San Francisco courtroom of Judge Vaughn Walker on Wednesday, June 16, to hear the final arguments in the California marriage amendment case, Perry v. Schwarzenegger. The arguments lasted about five hours, a long time for any American court. Two top advocates—Ted Olson, representing those who want to redefine marriage, and Chuck Cooper, arguing in favor of the marriage amendment—battled it out before Judge Vaughn Walker, who asked the attorneys many questions. Several other attorneys argued on behalf of various government entities, but the main match was Olson v. Cooper. Here is a summary of where the arguments gravitated:

Is “love” a public purpose for marriage? Cooper pointed out that Olson confused the public purpose of marriage with its private purposes. Olson played video excerpts when the plaintiffs expressed their feelings for their same-sex partner, their desire to live together, their happiness, etc. But all of that is basically irrelevant to whether the government should regulate marriage. For example, friendships are also loving relationships, but the government doesn’t regulate friendships. In fact, the government does not care how many friends any particular person has. So why does the government regulate marriages, but not friendships? Because when societies put men and women together, they inevitably produce children. And societies have found through their collective experience that children are best raised in a stable social environment consisting of the children’s own mother and father. That is the public purpose of marriage—to make sure that children are raised in the best social structure possible: a marriage of their own father and mother.

Judge Walker disputed this point with Cooper, saying that two people get married for personal reasons, like love and affection, not to fulfill some “public purpose.” That may be true, but Judge Walker missed the point. A marriage license is not an official government endorsement that two people really “love” each other. If marriage were only about a man and a woman caring for each other and loving each other, the government would not regulate it, just as it does not regulate friendships. When men and women get together, they inevitably produce children, and society has an interest in encouraging parents to raise those children in the best social environment possible. Just because a husband and wife are oblivious to the public function they further by getting married does not mean that public function isn’t really there.

If 80-year-old men and women can marry, then why can’t same-sex couples? Judge Walker seemed to like the legal argument that marriage laws are unconstitutional because they allow infertile men and women to marry, but not same-sex couples. Cooper pointed out the defects with that logic. First, 100 percent of all children will come from man-woman couples, and zero percent of children will come from same-sex couples. The fact that some opposite-sex couples cannot have children after they marry does not negate that fact. Sometimes a couple’s infertility is a temporary condition, and they later have children. An infertile married couple can adopt children and provide those children with something no same-sex couple can provide: a mother and a father to raise them. Certainly children have been raised successfully in less-than-ideal circumstances (for example, a single-parent home), but acknowledging that does not mean society must ignore that children are best raised by their own father and mother.

Bans on interracial marriage and bans on polygamy. Both Olson and Judge Walker compared the California marriage amendment to the old Virginia law banning interracial marriages, which the U.S. Supreme Court struck down in the 1967 case of Loving v. Virginia. However, that law prohibited only white people from entering into interracial marriages. For example, that law allowed Virginians of Asian and Hispanic descent to marry each other. These obvious racial disparities caused the Supreme Court to strike down the law. Defining marriage as one man and one woman applies to all people and singles no one out for exclusion. The parallel to the constitutional theory for same-sex “marriage” in the Perry v. Schwarzenegger case is not the interracial marriage case of Loving v. Virginia, but the Mormon polygamy cases of the 1870s and 1880s. There, the polygamists argued for a constitutional right to marry the people of their choice.

Bigotry, religion, and that’s it. I was disappointed in the broad, cartoonish stereotypes Olson evoked of Proposition 8 supporters during his oral presentation. He argued that people voted for Proposition 8 because either they hated homosexuals or because their heads were filled with vapid, obsolete religious doctrines. Nevermind that most people voted for Proposition 8 because they think marriage consisting of a child’s mother and father is the best place to raise that child. Ted Olson’s base stereotypes simply aren’t true and are unworthy of such a respected advocate.

What’s next? Judge Walker took the case under advisement. He will issue an opinion in weeks, maybe months. I expect him to give some advanced notice before the decision comes down. Whoever loses will appeal the case to the U.S. Court of Appeals for the 9th Circuit. After that court decides the case, it may go to the U.S. Supreme Court. Updates will continue to be posted on this page, so stay tuned.

Read Closing Arguments Transcript >>
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January 27, 2010
ADF Senior Legal Counsel Austin R. Nimocks:

The final day of trial ended at noon on Wednesday, making the presentation of evidence end precisely at the 2½ week mark. While the ProtectMarriage.com legal team has not yet formally rested its case in defense of the California marriage amendment and the voices of over 7 million Californians, as well as the voices of the tens of millions of Americans who have voted for marriage in their respective states, the presentation of testimonial evidence from witnesses to the district court is now complete.

While the media focus over the last couple of weeks has been largely on “the plaintiffs versus the ProtectMarriage.com legal team,” as well as the pros and cons of the marriage amendment, this case is much larger than just the two sides doing battle in the courtroom. As Judge Walker acknowledged at the end of Wednesday’s proceedings, some outstanding matters remain, including the intervention application of Imperial County, California. Many people may not be aware that Imperial County sought to intervene in the matter and join the defense of the marriage amendment. Moreover, the court has yet to rule on several motions filed by the ProtectMarriage.com legal team asking the court to require the “No on 8” campaigns to produce several documents that we believe that they are required to produce (and have yet to do). Judge Walker promised rulings on these matters in the near future.

As far as Wednesday’s testimony was concerned, the plaintiffs completed the cross-examination of marriage expert David Blankenhorn. Mr. Blankenhorn, a self-described liberal democrat, presents a unique and challenging problem for the plaintiffs since he has historically been an advocate for people who engage in homosexual behavior—and that’s been true even in the courtroom these last couple of weeks. Mr. Blankenhorn takes many positions which we at the Alliance Defense Fund have routinely opposed regarding certain matters, and he even supports so-called “domestic partnerships” for same-sex couples.

Why, then, was Mr. Blankenhorn testifying in support of the marriage amendment? Because notwithstanding all of the issues on which we might disagree with Mr. Blankenhorn, he has remained firm on the question of marriage. To Mr. Blankenhorn, marriage should always remain one man and one woman, and he presents an exceptionally convincing case on why the cons of redefining marriage vastly outweigh any potential pros. Thus, Mr. Blankenhorn throws a huge wrench into the plaintiffs’ case since, as described by some, he’s “one of them” and yet doesn’t believe that same-sex “marriage” is good for society. We agree wholeheartedly.

As the trial was coming to a conclusion, I thought about the important and vital questions the plaintiffs failed to answer in this case. There were quite a few. The plaintiffs never sought to address the real and important issue of creating a public policy that says that fathers and mothers aren’t necessary for childrearing. In my mind, that is an astounding hole in their case. Of course, there is a large difference in looking at, for example, single mothers who are not single by choice and intentionally creating fatherless families. We know that, across this country, there are many single moms who are not single by choice because their husbands paid the ultimate price fighting for us in Iraq, Afghanistan, or elsewhere. Their children will undoubtedly miss forever the love and guidance of their fathers; however, that circumstance is a far cry from intentionally depriving a child of a father, and we know that no amount of love and care can turn a mom into a dad, and vice versa. Therefore, are we really supposed to believe that intentionally eliminating a father or a mother from the lives of many of society’s children won’t have an effect on their well being? Facts are, indeed, stubborn things, and this is one fact that routinely presents a problem for the plaintiffs.

President Obama’s State of Union address Wednesday night demonstrated to me, once again, another weakness for the plaintiffs: their claim that the “GLBT community” lacks political power, both in California and nationally. Demonstrating this point is crucial to the plaintiffs’ claim that the marriage amendment is somehow unconstitutional, but how they can actually make this claim with a straight face is beyond the pale. As many Americans saw, President Obama employed the full might of his bully pulpit to unilaterally advocate for a change in the policy of our armed forces on behalf of the “GLBT community.” Yet, the plaintiffs are attempting to argue that the “GLBT community” says that it has no “reliable political allies” and is “politically powerless” in this country. If it doesn’t have any political power, nobody does. Its political power and the necessity of moms and dads are just two of many questions that the plaintiffs wholly failed to answer in this trial.

While the testimonial phase of the trial is finished, the proceedings in San Francisco are not yet complete. Judge Walker plans to take about a month to review, on his own, the thousands of pages of documents and exhibits that were introduced into evidence during these last two weeks. Then, by Feb. 26, the parties will remit papers which seek to highlight the evidence that they believe support the proposed judgments that they remitted to the court before the trial began. After that, Judge Walker will seek to schedule a time for formal closing arguments.

Therefore, please continue to stay tuned to updates on this page. The clashing of legal swords in San Francisco still has another couple of rounds to go. I anticipate the closing arguments to be scheduled for sometime in March or April, after which time Judge Walker will take time to author and render his decision.

Read Day 12 Trial Transcript >>
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January 26, 2010
ADF Senior Legal Counsel Austin R. Nimocks:

Day 11, Tuesday, can be aptly described as an exercise in the pot calling the kettle black (or what’s good for the goose is somehow not good for the gander). The plaintiffs’ case, in some part, has hinged upon the premise that reasonable people reflect upon their viewpoints and sometimes change their opinions.

This is why San Diego Mayor Jerry Sanders was called to testify. Mayor Sanders used to oppose same-sex “marriage,” but after his daughter elected to enter into a same-sex relationship, he has since transformed his views. The plaintiffs called Mayor Sanders to testify and show how, in their minds, all Californians who oppose same-sex “marriage” should “evolve.” For Mayor Sanders, the plaintiffs are tolerant because, in their minds, he reached the “correct” conclusion. Yet, for those whose conclusions are, in their opinion, “incorrect” the plaintiffs have no tolerance.

We saw this theme today in the cross-examination of Professor Kenneth Miller, a Harvard lawyer and political science professor at Claremont McKenna College. Dr. Miller was called as a witness by the ProtectMarriage.com legal team, which demonstrated, through his testimony, that the “No on 8” campaign and its political allies have much political power, both in California and nationally. Moreover, Dr. Miller testified in favor of the initiative process in California and the ability of the California citizens to enact laws that they choose to enact.

However, Dr. Miller did not always hold the opinions that he currently holds. Early in his career as a political scientist, Dr. Miller wrote articles that critiqued the initiative process and questioned its place in American democracy. However, after years of research studying hundreds of initiatives across the country, Dr. Miller came to realize that the initiative process was an effective and necessary tool in the larger democratic process. His research and the evidence of the initiative process nationwide led him to a different conclusion, and he felt so strongly about that conclusion that he wrote a book about it. Dr. Miller’s book Direct Democracy and the Courts is a known and authoritative source on the initiative and referendum process in America.

Yet, in the minds of the plaintiffs, Dr. Miller’s transformed opinion on initiatives apparently isn’t worthy of respect or their tolerance. In large part, the cross-examination of Dr. Miller amounted to an indictment of his current views on initiatives and an attempt to get him to transform his opinions (on the witness stand) to what he used to believe. Thus, for the plaintiffs, it’s perfectly permissible for Mayor Sanders’ beliefs about same-sex “marriage” to evolve, but when it comes to Dr. Miller’s professional studies and writings about the initiative process, any change that he makes which doesn’t fit the goals of those who want to redefine marriage is somehow improper.

Thus, the plaintiffs showed Tuesday what we already know—that tolerance for them isn’t really a two-way street. Instead, they seemed to be applying their immutability argument to the opinions of the witness just as they have insisted on the “immutability” of sexual attraction. The argument has failed on both fronts. Just as we are supposed to pretend not to notice that one of the plaintiffs was married for 12 years and had children with her husband, the plaintiffs’ attorneys pretended not to notice that Dr. Miller’s “initiative orientation” has changed...and very publicly so.

In the end, Dr. Miller held his own quite well, and the plaintiffs were unable to undercut Dr. Miller’s powerful testimony that the advocates for marriage redefinition in the United States do not lack political power, but rather have many powerful political allies. And because Dr. Miller wouldn’t abandon his current convictions about the initiative process in America, the plaintiffs eventually ended their questioning of him.

The next witness called by the ProtectMarriage.com legal team was David Blankenhorn, a Harvard graduate and nationally renowned author and expert on the question of marriage. Mr. Blankenhorn is regularly invited by leading same-sex “marriage” advocates to attend symposiums and debates on the topic, and Mr. Blankenhorn’s two books,The Future of Marriage and Fatherless America, are well-known and authoritative sources in the marriage arena. In fact, Mr. Blankenhorn was cited by both the California Supreme Court and the Massachusetts Supreme Judicial Court when deciding the questions in their states regarding same-sex “marriage.”

Mr. Blankenhorn made some very powerful points during his examination and firmly disavowed the idea that marriage is merely about the private desires of adults. Throughout its history, marriage has been a child-centered institution, focusing on what’s best for children. Mr. Blankenhorn also affirmed the extremely large body of literature which establishes a broad consensus amongst scholars that the optimal environment for children is where they are raised by their natural mother and father. By defining marriage as one man and one woman, we encourage this optimal environment. Same-sex “marriage,” on the other hand, intentionally deprives children of either a mother or a father, thereby denying them the opportunity for that optimal environment.

Mr. Blankenhorn also noted the important and disturbing trend about marriage in our country in the last three to five decades—that we, as a society, have been de-institutionalizing marriage ourselves through no-fault divorce, adultery, and out-of-wedlock childbearing. Ushering in same-sex “marriage,” according to Mr. Blankenhorn, would further de-institutionalize and devalue marriage to an unrecognizable point and can usher in what he called “new family forums” like polygamy, polyandry, and polyamory. Clearly, maintaining marriage as the union of one man and one woman is what is best not only for our children, but for society as a whole.

Mr. Blankenhorn is not yet done with his testimony, so keep reading Wednesday, when it’s expected that the submission of evidence to the court will be complete.

Read Day 11 Trial Transcript >>
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January 25, 2010
ADF Senior Legal Counsel Austin R. Nimocks:

As we moved into the third week of the trial, there was a sense that the winds were about to shift and, shortly before noon on the 10th day, the winds did change. After two weeks of emotional appeals, persecution of religious beliefs, and experts who were unraveled by the cross-examinations of the ProtectMarriage.com legal team, the plaintiffs moved to what I would call a “document dump.”

Without calling a single witness, the plaintiffs sought to move into evidence several documents which they believed helped their case. These included printouts from Web sites that were not run by the ProtectMarriage.com campaign, as well as DVDs that were also not part of the official campaign. The persecution of religious beliefs continued as the plaintiffs and their gallery of supporters laughed and snickered at videos of citizens, pastors, and others who were concerned about the impact of same-sex “marriage” on their community. Clearly, those who are demanding tolerance have no tolerance for the values and beliefs of those across this country who have voted to uphold marriage in 31 of 31 states. Rather, it has become clear that the plaintiffs’ desire is to force all Americans to forfeit the core of their democratic rights by allowing a small group of wealthy activists to impose their will on not only a state, but the entire nation.

Following their “document dump,” the plaintiffs finally rested their case. Legally, this was a significant moment since they were now telling the court that they had submitted all of the evidence that they planned to submit to attempt to order the redefinition of marriage by judicial fiat.

As I reflected on the case that the plaintiffs presented, I wondered about the potential impact of what was occurring. Was it really possible that a couple of weeks of emotionally-based testimony could bring additional years of chaos and confusion in the legal battles to preserve marriage? We know that this case could impact marriage laws in up to 45 other states—including the 30 states where voters overwhelmingly adopted state constitutional amendments—along with eliminating the right of Californians to reaffirm marriage in their state constitution. Could this all really hinge on two weeks of a legal case that was, let’s say, less than impressive?

In defending Proposition 8, the ProtectMarriage.com legal team isn’t charged with the legal duty to prove anything. Rather, the legal burden to prove the need to redefine marriage belongs exclusively to the plaintiffs; however, to this point in the trial, the ProtectMarriage.com legal team has proven much. In the first two weeks of trial, the plaintiffs elicited about 28 hours of legal testimony, while the ProtectMarriage.com legal team solicited about 27 hours of legal testimony, and we hadn’t yet called a single witness.

After the plaintiffs rested their case, the ProtectMarriage.com legal team called its first witness, Professor Kenneth Miller, a Harvard lawyer and political science professor at Claremont McKenna College. Dr. Miller thoroughly debunked the idea that those who seek to redefine marriage in this country possess no political power. From the speeches and policies of President Obama, all the way to the support of the California Legislature and public officials, Dr. Miller demonstrated the excessively thorough amount of political power that the “No on 8” campaign—and their allies across the country—do have regarding their agenda.

At the end of day 10, the cross-examination of Dr. Miller was proceeding, and that examination will continue into day 11, Tuesday. Stay tuned, as Tuesday expects to see another important witness for the ProtectMarriage.com legal team: marriage expert David Blankenhorn.

Read Day 10 Trial Transcript >>
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January 22, 2010
ADF Senior Legal Counsel Austin R. Nimocks:

Friday marked the end of the second week of the latest assault on marriage in our country. With the attorneys for Gov. Schwarzenegger and Attorney General Brown literally sitting on the sidelines, the defense of marriage rests solely with Cooper & Kirk, the Alliance Defense Fund, and the entire ProtectMarriage.com legal team. We willingly embrace this task.

The testimony Friday all came in the form of a single witness: Dr. Gregory M. Herek, an expert in psychology from the University of California at Davis. He was called as the plaintiffs’ final witness in a futile effort to demonstrate that the concept of “sexual orientation” is immutable and no different from race or sex. The plaintiffs made quick work of Dr. Herek, asking him questions for less than two hours, and in no way establishing what they sought to establish. In fact, through Dr. Herek, they established quite the opposite—that the idea of “sexual orientation” has no clear or universal understanding or definition, but rather involves varying and fluid concepts of identity, desire, and behavior. In other words, “sexual orientation” is, in no way, like a person’s race or sex.

For the remainder of the morning, and the entire afternoon, Dr. Herek was pounded by tough and vigorous cross-examination by ProtectMarriage.com attorney Howard Nielsen. Mr. Nielsen took Dr. Herek, who claims to be an expert, through dozens of books, research papers, and studies with which Dr. Herek was not familiar. Many times, Dr. Herek was presented with the statements and findings of certain scientists and then asked whether he agreed with a particular statement or conclusion. And on dozens of occasions, Dr. Herek was unable or unwilling to provide concrete answers to certain questions, even though he presents himself as an expert.

The studies that Dr. Herek was forced to address covered decades of research and studies on the questions of human sexuality. From Freud to Kinsey to modern-day scientists, Mr. Nielsen forced Dr. Herek to face a multitude of scientific evidence that sexuality and “sexual orientation” is largely a component of behavioral preferences and varies across time and place. In other words, the idea that “sexual orientation” is indeed an immutable human trait was thoroughly debunked in court Friday. Dr. Herek even acknowledged that evidence exists that reparative therapy (designed to assist individuals with unwanted same-sex attraction) has been a helpful and productive thing for many people who have sought treatment.

One of the most poignant moments of Dr. Herek’s testimony came late in the day when he was asked whether he was aware of any study that identified a specific biological origin for homosexuality. (Another way of asking may be whether or not homosexual behavior is in our DNA.) Dr. Herek, the expert on “sexual orientation,” didn’t know. He answered, “I have a sense that there might be some. But I – this is not something that I prepared for in terms of coming today. But as I said, I would certainly agree with the statement that we don’t know what the origins are of sexual orientation.” Not the kind of answer one would expect from an expert on this subject.

At the end of the day, the plaintiffs rested their case. By resting, they announced that they no longer had any evidence to offer in support of their case to redefine marriage for the entire country. After two weeks, here’s what the plaintiffs established:

(1) That they’re capable of calling witnesses who have absolutely nothing to do with the case.

(2) That the so-called expert on “sexual orientation” is unable to establish that there is a well-understood, universal definition of this concept (unlike race or sex).

(3) That they’re capable of disrespecting religious faiths of all kinds.

(4) That their objective economist would still support the repeal of Proposition 8 even if the evidence proved same-sex “marriage” to be an economic calamity.

(5) That their expert on marriage admitted that a major historic purpose of marriage was to meet the child’s need to be emotionally, morally, practically, and legally affiliated with the woman and the man whose sexual union brought the child into the world.

(6) That their historian admitted that people voted for Proposition 8 for a range of reasons that had nothing to do with an invidious intent to “discriminate.”

(7) That their developmental psychologist admitted that there are differences between men and women that affect child development, that there is evidence that the absence of a father has its greatest and most predictable effect earlier in a child’s life, and that it is important for infants to attach to both their father and mother.

(8) That their expert on political science thinks that the movement to redefine marriage has “no reliable political allies,” even though the California governor and attorney general are refusing to defend this case.

In the end, after two weeks of trial, the plaintiffs have questioned witnesses for about 28 courtroom hours while the ProtectMarriage.com legal team has questioned witnesses for about 27 courtroom hours, and the ProtectMarriage.com legal team has not yet called a single witness.

Stay tuned next week. Experts defending marriage and the California marriage amendment will testify.

Read Day 9 Trial Transcript >>
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January 21, 2010
ADF Senior Legal Counsel Austin R. Nimocks:

Thursday revealed a staggering amount of anti-Christian sentiments put forth in the plaintiffs’ case, in addition to their continued attack against the democratic process. Completing the cross-examination of Dr. Gary M. Segura, the professor of political science from Stanford, was the first order of the day. While Dr. Segura continued his own theme that religion is standing in the way of those who want to redefine marriage from gaining political power, he was also required to make several concessions which were damaging to the plaintiffs’ case.

Among these admissions were several about the reactionary behavior of those who opposed Proposition 8, which resulted in a self-inflicted loss of their own political clout. Though Dr. Segura attempted to diminish the severity of the wound, something already known by those who supported Proposition 8 became abundantly clear for everyone else during the discussion: many who opposed Proposition 8 used threats, harassment, intimidation, violence, and property damage to carry their message, while those who supported Proposition 8 employed lawful means to make their points.

This entire trial has been little more than an attempt by activists advancing their agenda to use emotion and sympathy in order to convince the court that marriage is unconstitutional. But when presented with a real victim, a young girl assaulted by a Castro mob, the mask fell off. The video played, and as the girl described the attack, jeers, scoffs, and giggles filled the courtroom.

Before leaving the witness stand, Dr. Segura made an astounding statement. One of his opinions was that the “gay and lesbian community” possessed no “reliable allies” in the political world. This includes, in his opinion, President Obama, Speaker of the House Nancy Pelosi, Senate Majority Leader Harry Reid, Rep. Barney Frank, and others whom he dismisses as not being true political allies of those who want to redefine marriage. This was quite an interesting statement because, as Dr. Segura was giving that testimony, I could not ignore that I was sitting at the counsel table, occupying chairs that are supposed to be occupied by attorneys for both the governor and attorney general of the State of California. Both Gov. Schwarzenegger and General Brown took solemn oaths to uphold, protect, and defend the constitution and laws of the State of California. Yet, here the plaintiffs are, attacking the constitution of the State of California, and both Gov. Schwarzenegger and General Brown, as we all know, are refusing to defend the case. Other examples could be given as well. Nonetheless, Dr. Segura had the audacity to testify, under oath, that in California, the “gay and lesbian community” has no “reliable allies” in politics.

Following the testimony of Dr. Segura, in a desperate attempt to continue to paint the over 7 million Californians who voted “yes” on Proposition 8 as bigots, the plaintiffs called to the stand Dr. Hak-Shing Tam, one of the official proponents of Proposition 8. In the courtroom, Dr. Tam represented many of us who are concerned about attempts to redefine marriage in our country. Dr. Tam is a chemical engineer who cares about his family, his community, and his state. He decided, like so many others, to get involved and make a difference, so he used his contacts with the Chinese press and Chinese churches to help support Proposition 8.

Like millions of Californians, Dr. Tam shared with the court his belief that the redefinition of of marriage in our society will take a grave toll on our communities and children. There is a lot of evidence to prove this fact. Adultery, no-fault divorce, and fatherlessness are just a few of the large problems associated with the erosion of the marriage culture in our country already. Yet, the plaintiffs today possessed no shame in their efforts to mock Dr. Tam for holding these beliefs. Dr. Tam was questioned about his affiliations, his associations, who he knew (and who the plaintiffs demanded that he knew, even though he didn’t know them), and what he believed. In other words, Dr. Tam had his religious and political views placed under a judicial microscope to determine whether they were “correct” in the eyes of the law. Yes, you heard me right. The plaintiffs are trying hard to cast as legally wrong the political and religious beliefs of those who do not agree with them.

As the day lingered on, and the assault on Dr. Tam continued, I couldn’t help but think of a famous moment from the past involving Sen. Joseph McCarthy during his grilling of several American citizens during committee hearings. At a critical moment, when Sen. McCarthy breached an agreement regarding the hearings, Army attorney Joseph Welch came down on him saying, “Let us not assassinate this lad further, Senator.... You’ve done enough. Have you no sense of decency, sir, at long last? Have you left no sense of decency?” Had someone stood up and said this today during the cross-examination of Dr. Tam, it wouldn’t have come a moment too soon.

Nonetheless, marriage in California remains the law of the land, and for good reason. More court on Friday, and into next week. Stay tuned.

Read Day 8 Trial Transcript >>
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January 20, 2010
ADF Senior Legal Counsel Austin R. Nimocks:

The assault on the people’s voice continued Wednesday. After addressing a couple of procedural matters, the plaintiffs called to the witness stand Mr. Ryan Kendall.

Mr. Kendall is not a California resident, nor was he ever a California resident. Mr. Kendall is not familiar with the Proposition 8 campaign; he has not seen any advertisements from either side regarding the campaign. Mr. Kendall has not sought a marriage license in California and has no plans to try to marry in California. In fact, Mr. Kendall is a resident of Colorado. Why on earth, then, is Mr. Kendall a witness in this case?

If you’re asking that question, don’t worry. We are, too. Mr. Kendall was called to testify exclusively to disparage (a) Christianity, and (b) conversion therapy. In open court, Mr. Kendall boldly proclaimed, “I am a gay man.” He testified that he came to this realization at the age of 13, at which time he said his parents began a systematic effort to “convert” him back into a heterosexual. Mr. Kendall went on for a long time about how awful this experience was and how it has left an emotional scar on his life. What does this have to do with whether the U.S. Constitution contains within it a right to same-sex “marriage?” Nothing. Absolutely nothing. Whether one sympathizes or believes Mr. Kendall—or doesn’t—has no bearing on the legal question at issue.

Notwithstanding the irrelevance of Mr. Kendall’s testimony, he was effectively cross-examined by ProtectMarriage.com attorney Jim Campbell. Mr. Campbell, with the Alliance Defense Fund, clearly demonstrated the irrelevance of Mr. Kendall’s testimony to the case at hand, noting that many individuals who seek out and desire conversion therapy have good results addressing their homosexual behavior and desires in a positive and constructive way. In other words, Mr. Kendall’s single instance of a bad experience does not make the California marriage amendment unconstitutional.

The second witness of the day was Dr. Gary M. Segura, professor of American politics at Stanford. Dr. Segura, during direct examination, spent hours talking about the alleged lack of political power of homosexual activists in America. In short, Dr. Segura’s testimony about the so-called “political powerlessness” was a walk through the looking glass. The agenda of homosexual activists has been advanced by Hollywood, the mainstream media, the public education establishment, the university system, multiple billion-dollar foundations, public and private sector unions, the president of the United States, large majorities in the U.S. House of Representatives and the U.S. Senate, the leadership of most professional organizations, a large number of large corporations, huge law firms, and other clout-brokers. Aside from that, I guess I have to concede that this particular group of activists is fighting “The Man” with scant ammo. But I guess as long as we are talking about redefining the word “marriage,” we might as well redefine the word “powerlessness,” too.

The trial does continue Thursday, so do stay tuned. The cross-examination of Dr. Segura is not yet complete.

Read Day 7 Trial Transcript >>
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January 19, 2010
ADF Senior Legal Counsel Austin R. Nimocks:

And so it goes, another day of anti-democratic efforts to redefine marriage goes into the books. Tuesday’s events saw the testimony of two additional witnesses for the plaintiffs: San Diego Mayor Jerry Sanders and Dr. M.V. Lee Badgett, professor of economics at the University of Massachusetts.

The themes weren’t all that different from those of last week—purely emotional appeals coupled with expert testimony (which was easily dismantled by the lawyers for ProtectMarriage.com). Yet, as I’m listening to all of the testimony, I keep asking myself this question: why are we having this debate here? Moreover, should we even be having this debate at all? After all, California has had this debate twice already, with both instances ending in the voters deciding that marriage shall remain what it always has been: one man and one woman. Thus, one could make a reasonable argument that this debate is old hat and unnecessary. However, even if it is appropriate to again have this debate, why here? Aren’t changes to social policy things that belong to the legislative process (which includes the initiative), or does it really belong to one judge? Clearly, our American system of justice cannot be grounded in the principle that a handful of activists can void a constitutional amendment adopted by more than 7 million Californians.

Mayor Jerry Sanders spent much of his time reviewing his own personal opinion on same-sex “marriage,” much of which stems from his experiences with his daughter, Lisa, who is currently in a same-sex relationship. He recounted how he changed his position on same-sex “marriage” from one who opposed it to one who, during an emotional press conference in 2007, denounced Proposition 8 when faced with the desires of his daughter. Now, nobody doubts the true depth of Mayor Sanders’ emotions, or that he loves his daughter, but why again should the tears, however sincere, of one of hundreds of California mayors decide this question? To what extent is his testimony relevant in a court of law? It isn’t, but his opinion hasn’t been ignored. He was able to express it, just like millions more, at the ballot box in 2008. We shouldn’t be polling the opinions of mayors in court, but if we’re going to, then I have a several California mayors from the 42 California counties that approved Proposition 8 that I’d like to see testify, too.

If you spend any time in trial, as I have done most of my career, you know that jurors are regularly instructed to dismiss and put aside emotional appeals. Cases are decided on the facts and the evidence, not on how someone feels about this or that. Feelings do have a distinct place in both society and our system of justice, but that place isn’t in the courtroom. Of course, Mayor Sanders represents only one side of the spectrum of Californians who changed their mind about same-sex “marriage.” Many Californians who were initially inclined to vote against Proposition 8 also changed their mind into voting “yes,” and for good reason—they ultimately concluded that marriage should remain a unique institution that promotes the important interests of children and society and is about much more than a legal arrangement hinged exclusively upon the desires of adults.

Professor Badgett testified for hours Tuesday, though most of those hours involved her being cross-examined on the many problems and inaccuracies with her testimony, as well as her numbers. The numbers which she put forth can be summed up as supposition upon supposition, guess upon guess. Now, economics in and of itself is usually a speculatory field in many respects, but Dr. Badgett’s testimony took economic speculation to a new level. However, as masterfully demonstrated by Chuck Cooper, the lead lawyer defending Proposition 8, facts are indeed stubborn things and don’t change for the desires of even the most staunch of advocates. Piece by piece, Mr. Cooper dismantled the house of economic cards built by Dr. Badgett and, in the end, Dr. Badgett even acknowledged that if economics demonstrated that same-sex “marriage” was indeed bad for society, she would still support the repeal of Proposition 8 as the staunch advocate of same-sex “marriage” that she is. In other words, where the rubber meets the road, Dr. Badgett believes what she believes, regardless of what the facts (or numbers, in her case) actually show.

Wednesday, we can expect to see more of the same sort of testimony and cross-examination. Stay tuned.

And if you’re concerned about the trial not being televised, don’t worry. This trial is being heavily watched and well documented. The laptop and TV screens present in the courtroom and overflow rooms are more than numerous, and a myriad of high-tech mobile phones and PDAs are in constant use. History won’t miss an ounce.

Read Day 6 Trial Transcript >>
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January 18, 2010
ADF Senior Counsel Jordan Lorence:

There is no hearing today in the Perry case because the federal court is closed for the Martin Luther King, Jr., holiday. This break in the action gives us an opportunity to describe what life is like behind the scenes at the California marriage amendment trial.

Trials, especially those in federal court, demand much preparation. It is probably the most intense work that an attorney can do. Glamorous it is not. The attorneys on both sides and their support staff are working around the clock. They work all day at the actual trial, and then they spend their evenings preparing for the next day, preparing motions and briefs, reviewing documents, developing questions for the direct- or cross-examination of witnesses, etc. One of the biggest chores is putting exhibits and documents in binders filled with exhibits for the witnesses and the lawyers (e.g., “Please turn to tab 5 in your binder for the document previously marked as Plaintiff’s exhibit 314….” It is a challenge to remain focused and to consistently put out good work and to be prepared.

Judge Vaughn Walker usually starts the day’s court session at 8:30 a.m. The attorneys and support staff are usually in the courtroom at least 30 minutes beforehand. Spectators line up for seats in the courtroom. There is an overflow viewing area in the ceremonial courtroom two floors above in the federal courthouse. This is a closed-circuit video feed, so it complies with the U.S. Supreme Court’s order not to broadcast the court hearing to other federal courthouses. The proceedings end anywhere from 4 p.m. to 5:30 p.m. each day, depending on who is testifying, whether his testimony is almost completed or not, etc. After a quick meal, the lawyers plunge back into work on the next day’s witness testimony, exhibits, legal research motions, briefs, etc. It is grueling.

The first week of trial started with opening arguments and testimony by the four plaintiffs. Since Tuesday, and for the next week, a parade of expert witnesses have and will give their testimony. The day can descend into abstract discussions of statistics or social science concepts. The day can also soar with passionate advocacy on constitutional law. Judge Walker occasionally asks a question of the witness or offers a quip to the attorneys about moving the case along at a faster clip. Those who oppose the California marriage amendment (that is, those who want to redefine marriage to include same-sex couples) are presenting their case first. The supporters of the amendment (that is, those who support marriage as the union of one man and one woman) will present their case next, maybe starting late next week. The trial could last around 3-4 weeks, but it is difficult to predict because one cannot be certain how long it will take to hear a certain witness, how many witnesses each side will call, and other such factors.

The overflow room with the video feed is a bit more laid back because the spectators are not in the courtroom where the trial is happening. At times, people in the audience react out loud to what they hear and see in the courtroom. But most of the time, there is little talk or reaction as the people in the overflow room focus on the proceedings and type endlessly away, feeding blogs and Twitter tweets with the latest news from the courtroom. The number of people in the overflow room has dwindled since the beginning of the trial. We have been scouring the courtroom, learning where the electrical sockets are to plug in our computers and phones.

The news reporters also attend and cover the proceedings. Each day at noon and at the end of the day, representatives from the opposing side come before the microphones and cameras to explain their reactions to the day’s events. Also, reporters from out of town frequently call for daily updates on the proceedings. I am frequently doing media interviews from early in the morning (for the East Coast news shows) to early evening (for drive time shows on the West Coast). On the first day, I did interviews with the British Broadcasting Corporation and the parallel news organization in Canada. I briefly saw a news show in Japanese (or maybe Chinese) covering the trial.

During a long trial, a weird but nice sense of community can develop between those participating in the trial. People with opposing views on redefining marriage see each other each day in the courtroom. Many of us have been talking for months as both sides prepare for trial. Paradoxically, we battle in court, but the day-to-day interaction tends to build friendships. Although each side has a mission to accomplish and wants their opponents to lose, we can still be cordial and friendly to each other. When court convenes, the clash of combat resumes.

I think most of us at the trial have a general feeling that we are participating in something historic, but we are mostly focused on the huge amount of work that needs to be completed. A major trial consumes lawyers and legal assistants with its huge workload. I hope somebody will write a book on this case, but right now, most of us are too busy to think about much more than what’s coming up tomorrow or the next day in the trial. Maybe at the end of the trial, we’ll have time to relax and take the cable car over the hills to Fisherman’s Wharf for dinner. But right now, there is a brief to deal with and a phone call to return, and then let’s not forget that document we want to submit as an exhibit, and where is the deposition, and....

The trial will reconvene on Tuesday morning. We’ll be ready.

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January 15, 2010
ADF Senior Counsel Jordan Lorence:

The testimony Friday demonstrated why this case should not be in federal court and should rather be left to debate in the public square. The day was dominated by testimony from Michael Lamb, a professor of developmental psychology from the University of Cambridge in England. He initially asserted that a “substantial body of evidence” shows that children raised by same-sex couples are just as well-adjusted as man-woman couples and that it would help children in households of same-sex adults if marriage were redefined at their demand. His strong confidence and that “substantial body of evidence” looked a lot weaker by the end of his cross-examination.

Dr. Lamb said that he reviewed many studies, concluding that loving involvement in kids’ lives is all it takes to make an effective parent, not whether they are afforded the right to be raised by their own (male and female) parents.

The effective and interesting cross-examination by Cooper and Kirk lawyer David Thompson showed that the issue is a lot more complex than Lamb insisted and that his position is based on studies with significant analytical deficiencies. We also learned that Dr. Lamb is a member of the American Civil Liberties Union and the National Organization for Women, raising questions about how much of his fringe ideology permeates his research. As striking is the fact that Lamb is not a clinical psychologist and that he has not interviewed a child for 20 years.

At times, I felt like I was listening to a different Dr. Lamb testify as Mr. Thompson cross-examined him. A rapid volley of questions yielded inconvenient affirmative responses from Lamb that contradicted his earlier common-sense-defying, “gender doesn’t matter” testimony. Lamb admitted that there are differences between men and women that affect child development. He reluctantly admitted that there is evidence that the absence of a father has its greatest and most predictable effect earlier in a child’s life. He admitted that it is important for infants to attach to both their father and mother. Hmmm…but I thought he said that a parent being male or female had no impact on parenting?

We also learned that Dr. Lamb had written a review of a famous pro-father book, David Blankenhorn’s Fatherless in America. Lamb wrote that it should be widely read and discussed. Wow.

David Thompson’s tour de force was only warming up. He reviewed with Dr. Lamb a wide variety of social science discussing the importance of the interaction of fathers in the lives of their children and the importance of children being raised by their biological parents. He got Lamb to agree that the research is reputable. Then Lamb reluctantly agreed with such points as these:

Children are better raised by their own parents than by divorced or single parents.
Social science shows that children benefit in major ways (school performance, abstaining from early sexual activity, etc.) when they are raised in an intact home with their own biological parents rather than a cohabiting, divorced, or stepparent home.

Then Thompson took Prof. Lamb through the studies he relied upon for his conclusion that children raised by same-sex couples have the same outcomes as those raised by opposite sex couples. He got Lamb to agree that many of these studies had no control groups, used self-selected samples, many of them had samples that were too small (“miniscule samples”) to reach valid conclusions, and that some of them compared the child-raising outcomes of two-woman couples with the outcomes of children raised by single mothers! Similar results between the two groups is a serious blow to the plaintiffs, as children from single-mother homes show significantly worse outcomes than those of intact married homes with a mother and a father. Some of the studies involving children raised by two men were highly skewed to non-representative population samples.

The pinnacle of the cross-examination came when Dr. Lamb admitted that many of the studies do not compare two-woman couples raising children to married biological parents raising children, but mixed together children raised by cohabiting, unmarried men and women, which would clearly water down the results of children raised by opposite-sex couples. Lamb’s attempt to restate the objection by saying that the studies “did not exclude parents who were unmarried,” was an avoidance technique that fell lame.

All of this brings us to the common-sense conclusion that fathers are important in the lives of their children. Children raised by design to be deprived of a father or a mother face serious negative outcomes in their development and well-being. There are tragic circumstances in the lives of children that leave them without the benefit of either a mother or father; however, no one should create a home for a child that deliberately deprives that child the right to both a mom and dad. The state should not be encouraging more arrangements in which children will be without one of their parents, and a court certainly should not impose the same. Every time the state – and in this case the courts – decides to interfere with marriage, children, and the family, the results are devastating to children most of all.

This demonstrates, again, why this trial should not even be happening in federal court. Californians, and the American people as a whole, should not have this dangerous social experiment imposed upon them by a court in San Francisco. This is a public policy issue that the Constitution affirms should be in the hands of the people. The voters of California had this debate in the fall of 2008, and a solid majority, more than 7 million Californians, wisely decided to add a marriage protection amendment to the state constitution. The only constitutionally-correct conclusion is for Judge Walker to uphold the marriage protection amendment and remove the court from a process in which it never belonged in the first place.

Monday the courts will be closed for the federal holiday of Martin Luther King, Jr.’s birthday. The trial will resume on Tuesday.

Read Day 5 Trial Transcript >>
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January 14, 2010
ADF Legal Counsel Dale Schowengerdt:

There’s no shortage of disagreement concerning the California marriage amendment trial. But one point is beyond dispute: it is costing a fortune. While the gallery of observers continues to dwindle (it’s now about half full), the room has remained flush with busy lawyers. On a typical day there are 10-12 on each side, many of whom are senior partners at major law firms. Of course, on our side that counts the state’s official “defenders” of the amendment—lawyers for Gov. Schwarzenegger and the attorney general—who have taken neutral and adverse positions, respectively, and are certainly doing nothing to help defend this portion of their own state constitution. Even considering their non-participation, the legal octane in the room is undeniably high.

That has made for a very thorough examination of the issues thus far. A side issue that has been all-too-thoroughly examined—cameras in the courtroom—was finally laid to rest Thursday after Judge Walker announced that he would not broadcast the proceeding in any form. This came on the heels of Wednesday’s 5-4 decision from the Supreme Court that criticized the process used to change the court’s rules to allow cameras in the first place. The Supreme Court also recognized the special dangers of allowing broadcast in this case because of the voter intimidation surrounding Proposition 8.

After that announcement from the court, the plaintiffs put on their next two experts, who spoke for the rest of the day. The first was an economist who works for the City of San Francisco, Dr. Edmund Egan. He testified about how much money the marriage amendment will cost the City of San Francisco. He said that redefining would increase the number of “married” couples in San Francisco, who would accumulate more wealth and create higher spending on consumer goods (thus generating more sales tax revenue). This would also bid up real estate values, he argued, which would increase property tax receipts for the city.

Dr. Egan spoke for several hours, but the avalanche of words left little substance. I was struck by two thoughts. First, as I looked around the courtroom to see several San Francisco city attorneys, I wondered how much this and all the other marriage cases San Francisco has filed in the last five years were costing the city. Even if we assumed Dr. Egan’s theories were true (a huge assumption), I bet the marginal uptick in same-sex “wedding” revenue would pale compared to the city’s legal bills. Second, Dr. Egan’s theory could be applied to any type of marriage redefinition, like polygamy or polyamory. If the city could only follow the advice of its historian expert, Dr. Nancy Cott, it would allow marriage “in all its forms” and make a mint. But something tells me they won’t be advocating that theory…yet.

Next on the stand was Dr. Meyer, who testified about how the marriage amendment stigmatizes people who engage in homosexual behavior. He spoke at length about how same-sex couples feel when they get funny looks from hotel clerks or passersby on the street, and how the negative attitudes about homosexual behavior impact their well-being. The theory seems to be that if California redefines marriage, society will be more accepting of their relationships, and thus their stress level will decrease. On cross-examination, Dr. Egan admitted that his studies are contrary to other leading studies. It also became evident that his theories, even if true, were not very well connected to the marriage amendment.

Friday we start with yet another expert and then round off the day with a local Asian-American activist. If time permits, the plaintiffs will also question Dr. Bill Tam, who was a supporter of Proposition 8 in the Asian community.

Read Day 4 Trial Transcript >>
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January 13, 2010
ADF Senior Counsel Jordan Lorence:

The U.S. Supreme Court dominated Wednesday’s news with its 5-4 decision to continue the prohibition on the video broadcasting of the California marriage amendment trial in San Francisco. Federal courts have prohibited cameras for decades, and the Supreme Court halted the effort to broadcast the trial because the district court did not follow the procedures needed to change the rules to allow the unprecedented broadcast. The supporters of Proposition 8 praised the Supreme Court’s ruling, stating that “putting Prop 8 supporters on the witness stand and broadcasting their testimony worldwide would virtually guarantee a serious risk of harm threatened by anti-Prop 8 extremists.”

Wednesday began with the cross-examination of Yale history professor George Chauncey. In his direct testimony, he painted a dark history for people engaged in homosexual behavior in America. However, Professor Chauncey reluctantly admitted that he has also written that the environment for this group has improved markedly in America. He also admitted that people voted for Proposition 8 for a range of reasons—and that not all of them had invidious intent to “discriminate.”

Professor Chauncey also had a frustrating habit of falsely linking the motivations of those who supported Proposition 8 to those who supported racial segregation a half century ago. He reluctantly agreed that there is nothing wrong with voters considering their individual moral values to decide how to vote on an issue, but then added that people supported racial segregation because of their moral beliefs. People also use their personal moral values to support environmental legislation or health care legislation. Does that mean those voters are just like those who supported racial segregation? The fact is two-thirds of black Americans, many of whom personally suffered under segregation, affirm the definition of marriage as between one man and one woman. If anyone would notice a civil rights issue when he saw one, it is a black voter. The truth is skin color is not a moral category, but demanding unquestioned public affirmation of certain sexual behaviors on society is an inescapably moral issue. The comparison is apples and sea urchins—a PR ploy—but unfortunately, it has fooled many.

A chilling moment came when San Francisco city attorney Therese Stewart had Professor Chauncey read official doctrinal statements from the Southern Baptist Convention and the Roman Catholic Church that both generally restated what the Bible says about the definition of marriage as one man and one woman. Professor Chauncey said those doctrinal statements reflect historic bias against those who engage in homosexual behavior. It’s not hard to figure out what is so frightening about an attempt in federal court to attack and delegitimize the views of the two largest Christian denominations in America. This is further proof that this case, and the very definition of marriage, is about much more than the personal relationships and the inner feelings of people who choose same-sex relationships. It is about imposing a different and intolerant “morality” on America and eradicating opposing ideas.

The opponents of the marriage amendment will continue to call witnesses Thursday and for the next few days. The attorneys in favor of the amendment—Charles Cooper and others from his firm together with attorneys from the Alliance Defense Fund—will continue to cross-examine those witnesses and prepare to present the case in favor of marriage and the marriage amendment sometime next week.

Read Day 3 Trial Transcript >>
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January 12, 2010
ADF Legal Counsel Dale Schowengerdt:

Tuesday the plaintiffs put two professors on the stand. Attendance in the courtroom thinned considerably. Although testimony may have been a bit dry at times, both of these experts discussed what will be major themes in the trial.

The first was Harvard professor Nancy Cott, an expert on the history of marriage in the United States. Gibson Dunn attorney Ted Boutrous conducted her direct examination on a range of issues, most involving whether marriage is an elastic, evolving institution. Professor Cott testified that some of the changes that have happened to marriage include removing race restrictions that some states had imposed for a time, lessening of sex-specific gender roles in marriage, and allowing no-fault divorce. But perhaps the most striking change that Professor Cott noted is that marriage has evolved from a child-focused institution to an adult-focused institution. This is in direct response to Chuck Cooper’s opening argument that “marriage is historically a pro-child relationship. Marriage aims to meet the child’s need to be emotionally, morally, practically, and legally affiliated with the woman and the man whose sexual union brought the child into the world.” Professor Cott couldn’t deny that this has historically been a major purpose of marriage. But she says that marriage has evolved such that it is now more about making adults stable in their own relationships with each other. A major difference indeed—and one that will prove to be one of the defining themes of the trial.

David Thompson of Cooper and Kirk conducted what was a masterful and very entertaining cross-examination of Professor Cott. If we put the opposing counsel on truth serum, they’d no doubt admit that the David’s cross-examination was very damaging to them. First, he showed that Professor Cott is essentially an advocate for same-sex “marriage” (rather than a neutral academic). He also showed that she has radical views on marriage. She has stated that couples should be skeptical of marriage, that it’s not important for children to be raised in households of married spouses, that marriage should be supported “in all its forms” (presumably including polygamy), and even that “alternatives to marriage” should be supported. David used an anthology of Professor Cott’s statements from her books, past articles and interviews, and deposition testimony in other cases to show that 1) changes in marriage can have a host of negative and unforeseen consequences; and 2) historically a major public purpose of marriage is to ensure children are raised by the parents that brought them into the world.

David hit other themes including the Christian roots of marriage in the U.S. and the world. He also showed that making major changes in marriage could have profound and negative effects on society—that marriage is not infinitely malleable and that changes to it change the family, which changes our culture. In short, being innovative with marriage has a great negative impact on our culture.

Next on the stand was Yale Professor George Chauncey, who is also a historian. He argued that same-sex couples have been subject to a history of discrimination and recounted a campaign against same-sex adoption in Florida in the 1970’s. The plaintiffs appear to be attempting to draw a comparison between that campaign and Proposition 8. However, on deck Wednesday is David Thompson, who will conduct his second cross examination, this time on Professor Chauncey. After that, the plaintiffs will put on their next expert.

Read Day 2 Trial Transcript >>
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January 11, 2010
ADF Legal Counsel Dale Schowengerdt:

Many believe that the marriage case in San Francisco will eventually end with a decision from the United States Supreme Court. Few would have guessed that it would also begin with one. But shortly before the trial began Monday, the Alliance Defense Fund received word that the Supreme Court had issued an 8-1 decision staying the trial court’s decision to broadcast the proceedings over the Internet.

Everyone remembers the outrageous acts of voter intimidation, violence, and property destruction against Proposition 8 supporters, before and after the successful campaign. So, to protect our witnesses, ensure the integrity of the process, and prevent this trial from becoming a circus, we asked the Supreme Court to review the trial court’s unprecedented decision to broadcast. The court agreed (albeit at the 11th hour), and we’re hopeful the court will issue a permanent stay. We will know more by Wednesday.

It’s clear from the opening-day proceedings that marriage—and its historic purpose—is literally on trial in San Francisco. The beliefs of more than seven million Californians who voted for the marriage amendment are also on trial. Both of these points came into sharp focus as Chuck Cooper and Ted Olson made their opening statements this morning (which were accompanied by a steady pepper of questions from the judge—quite unusual during opening statements). Chuck Cooper noted that marriage has been defined as a union between a man and a woman across cultures, religions, and countries throughout history. Every state in our country that has put this issue to the voters has, overwhelmingly in most cases, affirmed that marriage is a union between a man and a woman—30 by constitutional amendment. Even Maine rejected its legislature’s proposal to redefine marriage. And as Chuck pointed out, even President Obama believes marriage should not be redefined to include same-sex couples. Nonetheless, and against this backdrop, Ted Olson argued that California has “no good reason” to reject the radical social experiment that is same-sex “marriage.” And that to do so—presumably whether from the blue states of California and Maine, or the mouth of President Obama—is an act of bigotry.

The four plaintiffs also got on the stand and gave testimony. We decided to cross examine only one of those witnesses, which ADF Senior Counsel Brian Raum conducted very effectively. Brian focused on the fact that what the campaign argued when it said Proposition 8 would protect children was that it would help preserve the right of parents to decide what their kids are exposed to and when. He also played an ad describing an outrageous incident in which first graders were taken on a “field trip” to a same-sex wedding in San Francisco, presided over by Mayor Gavin Newsom, culminating in the infamous comment from a charter school administrator that it was a “teachable moment.”

Bottom line: if the plaintiffs’ claims are successful, we will end up with a court-imposed redefinition of marriage on California and every other state. They argued—with vigor—that states are constitutionally prohibited from preserving the age-old definition of marriage. Sounds a lot like a “living, breathing” constitution to me. Thankfully, Chuck Cooper made the constitutionally-correct point very effectively by reminding the Court that it has no role in deciding this question. Neither does the Ninth Circuit. Or even the Supreme Court. Under our system of government, it’s Californians that have that right. And seven million of them spoke loud and clear through Prop 8. Let’s hope they don’t have that right ripped away, or we’re all in trouble.

Read Day 1 Trial Transcript >>