Testimony concludes in historic legal challenge over gay marriage ban


LGBTQ Nation

Testimony concluded Wednesday in the landmark case against California‘s Proposition 8, with attorneys for the two same-sex couples who mounted the challenge confident, and Prop 8 defenders hopeful that the gay marriage ban will prevail.

Legal experts following the trial expect Chief U.S. District Court Judge Vaughn R. Walker to find that Proposition 8 is unconstitutional. Even the “Yes on 8” legal team has intimated in recent days they are bracing for a decision favorable to the plaintiffs.

Whatever Walker decides, the ruling almost certainly will be appealed to the U.S. 9th Circuit Court of Appeals and eventually to the U.S. Supreme Court.

On the witness stand Wednesday morning, David Blankenhorn, Founder of the Institute for American Values, provided his three rules for the structure of marriage: it’s between two people, between a man and a woman, and is a sexual relationship.

Among two days of testimony, Blankenhorn said that reproduction is a “primary purpose” of marriage, and predicted fewer heterosexual marriages and more divorces and one-parent households if marital rights are extended to homosexuals.

During hours of cross-examination that began Tuesday afternoon, plaintiffs’ attorney David Boies on two occasions confronted Blankenhorn with passages from his 2007 book, “The Future of Marriage,” which seemed to contradict his testimony.

In one passage, Blankenhorn wrote: “We would be more American on the day we permitted same-sex marriage than we were on the day before.” In another, he observed that the institution of marriage is constantly evolving and that is “no simple, universal” definition of marriage.

Plaintiff's legal team, Attorneys Theodore J. Boutrous Jr. and David Boies

The “Yes on 8” defense team suffered other, more severe hits from its own witnesses this week.

Not only were their credentials as being experts under intense scrutiny, both witnesses made comments essentially agreeing with the plaintiffs’ contention that same-sex marriages posed no harm to heterosexual marriages.

On Monday, defense witness Kenneth P. Miller, a professor at Claremont McKenna College, testified that gays and lesbians are a politically powerful force, but then conceded that that no high ranking California politicians are openly gay, that gays are expelled from the U.S. military if they reveal their sexuality, and that gay couples in some states cannot adopt children.

When challenged whether Prop. 8 discriminated against same-sex couples, Miller acknowledged that it “treated them differently.”

On Tuesday, Blankenhorn admitted he knew of no study showing that children reared from birth by same-sex couples fared worse than those raised by biological parents, and said that legalizing same-sex matrimony would “improve the well-being of gay and lesbian households and their children.”

Chief U.S. District Court Judge Vaughn R. Walker

Blankenhorn, who holds a master’s degree in history, acknowledged he had neither completed nor taught a college course in family structure, held no degrees in psychology, psychiatry, or sociology, and did not undertake any scientific study of the effects of same-sex marriages on any jurisdiction.

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.”

Walker thanked the lawyers at the close of the session Wednesday, calling it “a fascinating case extremely well presented on both sides,” and stepped down from the bench to shake hands with each of the attorneys before leaving the courtroom.

Walker said he would schedule closing arguments after final written submissions from both sides, due in 30 days.

A ruling is expected in March.

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