Live-Blogging the Federal Prop 8 Trial

by Paul Hogarth on January 14, 2010

Yesterday, I spent the whole day at the Federal Courthouse – live-blogging the Proposition 8 trial for the Courage Campaign. With the U.S. Supreme Court’s 5-4 ruling yesterday against video broadcasting of the trial, the Courage Campaign’s live-blog is one of the only ways to follow the court proceedings. And I can now understand why Prop 8 supporters fought so hard to keep out cameras: through witnesses, the plaintiffs are putting on a devastating case that animus of gays motivated this measure – and there’s plenty of fodder. But since the federal courts have yet to recognize sexual orientation as a “suspect class,” merely proving that bigots pushed Prop 8 won’t be enough. Based on Romer v. Evans, plaintiffs must prove that any other reasons for passing Prop 8 are mere subterfuges for a hatred of homosexuals. And it was fascinating seeing how they all are …

Before I go into detail on yesterday’s trial, a brief word on the defense’s case for blocking cameras from the trial. Prop 8 supporters argued it was necessary in order to minimize exposure – for fear of being intimidated. They said there have been boycotts of their businesses, threats of vandalism – and fear that a public trial will make it worse.

I won’t go into detail about how gay people have suffered centuries of hate crimes, and likewise feared retribution for speaking their minds. What’s ironic about their argument is that Prop 8 supporters engaged in such tactics during the campaign. In October 2008, their campaign sent a letter to various businesses who donated to “No on 8.” The letter threatened to expose their names and boycott their businesses unless they gave money to them.

Yesterday was Day 3 of the Perry vs. Schwarzenegger trial, and the court heard two witnesses from the plaintiff’s side. Yale History Professor George Chauncey was there to testify about the history of discrimination against gays and lesbians, and UCLA Psychology Professor Letitia Peplau spoke about her research on studying relationships (both gay and straight) and the salutary effects of marriage. Both were there to explain how hatred of gays had motivated the passage of Prop 8, and there is no basis related to any legitimate government end to justify taking away same-sex marriage rights.

And there was plenty of evidence put forth by the plaintiffs about animus from Prop 8 supporters. Hak-Shing William Tam, who runs the Traditional Families Coalition, was one of five official proponents of Prop 8 – and Chauncey was asked to comment on his deposition statements. During the campaign, Dr. Tam wrote articles in the Chinese press that gay marriage would lead to prostitution and sex with children, and that “if gay marriage is legalized, every child would grow up thinking they can marry John or Jane.” And he made plenty of statements on how the gay lifestyle “carries all sorts of diseases.”

But that alone won’t be enough to overrule Prop 8. The U.S. Supreme Court hasn’t yet found homosexuals to be a “suspect class” – so the burden is on the plaintiffs to prove there was no possible rational basis for Prop 8. Beyond just proving that animus was a factor, Romer v. Evans says it must be “inexplicable by anything but animus.” A separate reason for passing Prop 8 that the Court finds “rational” could be enough to find it constitutional.

Which is clearly where the defense side was going. During their cross-examination of Professor Chauncey, they argued that (a) people could be against gay marriage out of a sincere belief that it’s against their moral values and that (b) parents could support Prop 8 based on the right to raise their children, and object to it being taught in public schools.

But the plaintiffs were ready to rebut both points. “Many people opposed desegregation and interracial marriage based upon their sincere moral religious values,” said Chauncey. As for the right of parents not to teach their kids about gay marriage, he replied “the issue here is not just marriage itself – but overall acceptance of homosexuality. They’re not afraid of just gay marriage. They’re afraid of their kids learning about gay people.”

In other words, the plaintiffs linked two stated reasons for passing Prop 8 – moral beliefs and a desire to protect children – directly to an animus toward homosexuals. Those who supported Prop 8 may have genuinely felt they were acting with rational purposes – but the genesis of these rationales are rooted in an irrational fear and bigotry towards gays.

When Professor Peplau testified about marital relationships and same-sex couples, the defense again tried to probe her on “rational” reasons for passing Prop 8. At one point in the cross examination, attorney Nicole Moss brought up statistics that gay men are less likely to say they are in monogamous relationships than straight men (data for lesbians, on the other hand, show them to be in similar numbers as other women.) The implied suggestion was that gay men are promiscuous, so there’s reason not to let them marry.

As a gay man, I found the logic behind that “rational” basis to be highly offensive – and would argue that the defense proved their own animus towards gay men by making it.

Defense attorney Nicole Moss also asked Professor Peplau a question that elicited a few chuckles: “Do you agree that one purpose of marriage is that fewer children will be born out of wedlock? Do you agree that gay couples don’t accidentally have children?”

But there are good reasons why the defense asked that. The New York Court, in Hernandez vs. Robles (2006), ruled against same-sex marriage because of a “rational basis” for not granting that right. Straight couples might accidentally have kids, they said, so it was “more important” for the state to extend them marriage rights than gay couples. The New York Court said this was rational; plaintiffs will have to explain how it’s irrational.

Oliver Wendell Holmes famously said, “this is a court of law – not a court of justice.” Challenging Prop 8 on federal grounds – despite strong legal arguments – was a risky endeavor, because federal courts have yet to recognize gays as a “suspect class.” Barring such a breakthrough, the challenge is for plaintiffs to debunk any rationale for not letting gays get married as simply irrational. So far, they’ve done a good job handling that burden.

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