- The Washington Times - Monday, February 8, 2010

The trial on the federal constitutionality of California’s Proposition 8, the same-sex marriage ban, has been in many respects a tale of two trials. The question is, which trial was U.S. District Court Judge Vaughn Walker watching?

To many observers, the anti-Proposition 8 side appears to have scored all the points. Attorneys David Boies and Theodore Olson spent two weeks attempting to discredit the law, calling dozens of witnesses who gave dramatic and emotional testimony that banning same-sex marriage harms gay couples, their children and even society.

But defenders of Proposition 8 say they’re missing the point. California voters made it law by a margin of 52 percent to 48 percent in 2008. At this point, the only question the court needs to address is the legal issue of whether voters acted rationally, not whether same-sex marriage is beneficial or harmful to society.

Judge Walker accepted additional evidence and friend-of-the-court briefs last week in Perry v. Schwarzenegger after wrapping up the testimony phase of the trial Jan. 27. Attorneys are expected to return to federal court in San Francisco in March for closing arguments in the non-jury trial.

Rick Jacobs, president of the Los Angeles-based Courage Campaign, who attended the entire trial and blogged for the pro-gay-marriage group’s Web site, called the proceedings “transformative.”

“Anybody who watched that trial, any federal judge who sat through that trial, would have to rule that Proposition 8 is blatantly discriminatory,” said Mr. Jacobs. “I’m not a judge, but everything was so clear in every possible way that Proposition 8 is the latest extension of decades-long discrimination against gays and lesbians.”

The contrast with the defense was sharp. Attorneys for Protect Marriage, the chief sponsor of Proposition 8, called just two witnesses over the course of 2½ days. One was a professor, the other a sociologist. Their testimony failed to pack anything near the emotional wallop of the plaintiffs’ case.

The second defense witness, David Blankenhorn, president of the Institute for American Values, even acknowledged under cross-examination that homosexuals and their children would benefit if same-sex couples were allowed to marry.

“They might have been better off if they hadn’t even put on a case at all,” Mr. Jacobs said.

Jordan Lorence, senior legal counsel for the Alliance Defense Fund (ADF), which helped defend Proposition 8, said factual testimony about the suffering caused by Proposition 8 may be compelling to a committee of elected legislators, or the voters, but it’s irrelevant in a federal legal proceeding — or at least it should be.

“This trial reminded me more of a legislative hearing than a federal trial,” said Mr. Lorence. “The people of California heard all this in the fall of 2008. They heard testimony directly in lieu of a legislative panel. They heard this, and they made the decision to keep the marriage laws the same as they were before California was a state.”

In an ideal situation, say Proposition 8 supporters, Judge Walker would have taken legal briefing and ruled on the constitutionality of Proposition 8, as a matter of law, without what they described as a “show trial.”

Trials normally are intended help the court weigh facts and judge the credibility of evidence, not address purely legal questions.

At one point, San Diego Mayor Jerry Sanders, a Republican, testified that he changed his mind on the merits of same-sex marriage after his daughter told him she was a lesbian. Another time, the chief economist for San Francisco said that same-sex marriage would reduce health and welfare costs for the city.

Both would be interesting topics for policy debate at the legislative level, say Proposition 8 backers, but shouldn’t be germane in a court of law. Austin Nimocks, who blogged on behalf of the ADF during the trial, asked at one point, “[A]s I’m listening to all of the testimony, I keep asking myself this question: Why are we having this debate here?”

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