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.

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.”

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.

Opponents of same-sex marriage in California rolled out their star witness Tuesday, an author and advocate who, at first, predicted that allowing gays and lesbians to wed would discourage heterosexual marriage and might lead to legalized polygamy, but then seemed to contradict his entire position.

The final defense witness in the legal challenge of California’s Proposition 8, David Blankenhorn of the conservative think tank Institute for American Values, began his testimony asserting that the best environment for children is a marriage between a man and a woman.

Blankenhorn said he believes “leading scholars” share his view that same-sex marriage would erode traditional marriage, causing heterosexual couples to abandon marriage, to divorce, have children out of wedlock and lead to calls for other forms of marriage, such as polygamy.

The bottom line for Blankenhorn: reproduction is a “primary purpose” of marriage, he insisted.

David Boies, the attorney for gay couples challenging the voter-approved ban on gay marriage, argued that Blankenhorn was not qualified as an expert in the meaning of marriage and parenthood.

Boies established under questioning that Blankenhorn had a master’s degree in history and had never taken a university class in family structure or taught a college course in the subject.

Asked Boies, “And you have no degree in psychology, psychiatry, sociology, anthropology.…”

“No,” interrupted Blankenhorn.

“And in preparation for this testimony, did you undertake any scientific study of what effects permitting same-sex marriages have been in any jurisdiction where same-sex marriages have been permitted?” continued Boies.

Again, Blankenhorn responded, “No.”

Judge Vaughn Walker allowed the testimony, saying that it would be a “close” call if this were a jury trial rather than a trial by judge given judicial guidelines for expert witnesses.

As cross-examination by Boies got underway, Blankenhorn was unable to cite any supporting statements or evidence for that conclusion from the scholars he relied on for his earlier testimony, though he said he was sure some of them would agree with him.

In fact, Boies pointed to a passage in Blankenhorn’s 2007 book, “The Future of Marriage,” that appeared to contradict his previous two hours of testimony of the threat to traditional marriage posed by gay marriage.

“We would be more American on the day we permitted same-sex marriage than we were on the day before,” Blankenhorn wrote.

Not only did Blankenhorn concede that he still believes those words, he 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 in more surprise testimony from the defense witness, Blankenhorn said that legalizing same-sex matrimony would “improve the well-being of gay and lesbian households and their children.”

Blankenhorn offered no explanation for his seemingly divergent views.

The trial wrapped up for the day — Blankenhorn will be back on the stand tomorrow, still under cross-examination, followed by redirect from the defense, who will be looking to salvage the seemingly damaging testimony of their second, and final witness.

Earlier in the day, before Blankenhorn took the stand, Boise concluded his cross-examination of Monday’s defense witness, Claremont McKenna College professor Kenneth P. Miller.

Boies put Miller on the spot, citing the fact that the two largest churches in the state, by far (Roman Catholic and evangelical Christians), not only supported a ban on same-sex marriage, but were leading movers in the Proposition 8 campaign. Boies also noted the crucial role of the Mormon church.

Overall, Boies asked Miller, didn’t religious organizations support Proposition 8 in a way that dwarfed the role of churches that sided with the No on Proposition 8 campaign? Weren’t religious attitudes “critical” in the push to pass Proposition 8?

Miller tepidly conceded each point, calling religious attitudes a “factor” in the vote.

The defense team opened their case in federal court Monday in the challenge against Proposition 8, arguing that gays and lesbians are a politically powerful force, with strong allies in high office, unions, corporations and the media.

The testimony was intended to counter arguments by plaintiffs seeking to overturn California’s ban on gay marriage, that the measure discriminated against a persecuted, powerless group and thus was unconstitutional.

Claremont McKenna College professor Kenneth P. Miller, the first witness for defense, was called to the stand to rebut a plaintiff’s expert who testified that gays were politically powerless.

The question of power is part of the legal analysis over whether gays need stronger constitutional protection.

Judge Vaughn R. Walker said he would admit Miller’s testimony after the defense sought to undermine his expert status, noting that in Miller’s earlier deposition he did not recognize the names of individuals and organizations who pioneered the gay rights movement in the mid-19th century.

Miller detailed a list of key politicians in the state who support gay rights, including Governor Arnold Schwarzenegger — who opposed Proposition 8 and, while named as a defendant in the case, declined to defend it — and San Francisco Mayor Gavin Newsom, referring to him a “nationally recognized” gay marriage supporter.

Miller also said newspapers, the entertainment industry and labor unions support gay rights in the state, and cited the $43 million raised to fight Prop 8, and that 21 of 23 major California newspapers opposed its passage.

But under cross examination, plaintiff’s attorney David Boies sought to undermine Miller’s contention that gays and lesbians wield power, getting him to acknowledge 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.

Miller sparred with Boies over whether Prop. 8 discriminated against same-sex couples — Miller acknowledged that it “treated them differently,” but said he wasn’t sure whether it was legally discriminatory.

Earlier in the day, the plaintiffs wrapped up their case, introducing into evidence various campaign documents and videos of pro-Prop. 8 campaign rallies to bolster their argument that the initiative, promoted as a reaffirmation of traditional marriage, was actually an appeal to anti-gay bias.

In one video from a Prop 8 rally, an unidentified speaker warned that if same-sex marriage remained legal, pedophiles would be allowed to marry children, and so would a “man from Massachusetts who petitioned to be allowed to marry his horse.”

In another video clip, Ron Prentice, a leading figure in the campaign, warned that “schoolchildren will be indoctrinated” with lessons on same-sex marriage if gays and lesbians are allowed to wed.