Issue:  Vol. 44 / No. 43 / 23 October 2014
 
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Children key in Prop 8 trial

NEWS


m.bajko@ebar.com

Marriage equality activists use their signs to block the banner of a pro-Proposition 8 group during an early morning rally and vigil on the opening day of the federal suit against Proposition 8. Photo: Rick Gerharter
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The strategic use of children and fears about them being indoctrinated into homosexuality during the 2008 campaign to pass a ban in California against same-sex marriage took center stage during the first two days of a federal lawsuit questioning the constitutionality of the measure known as Proposition 8.

While on the witness stand, several of the four plaintiffs in the case discussed the psychological impacts from hearing the anti-gay messaging regarding kids. The gay male couple in the case, Paul Katami, 37, and his partner, Jeffrey Zarrillo, 36, plan to have children some day and already are uncles.

Katami said the claims that Prop 8 needed to be passed in order to protect children frustrated and angered him. He said there is no reason for his brother to protect his kids from the couple.

"Protect the children was a big part of the campaign. You protect them from people who perpetuate crime against them, get them hooked on drugs. You don't protect them from an amicable person," said Katami. "It was so insulting even by the insinuation I should be put into that category. It invokes to me that we are some perpetrator and the idea that my marrying Jeff hurts some child somewhere is so damning."

The female plaintiff couple, Kristin Perry, 45, and Sandra Stier, 47, are raising four boys – two in high school and two in college – that they each had given birth to prior to meeting. Perry, a former child abuse investigator who is executive director of First 5 California, a state agency focused on child services, said she has spent her entire career protecting children and was incensed to see ads questioning her ability to be a role model for youth.

"As a parent I felt it didn't respect how I feel about my children and their friends. I am protective of them all the time," said Perry, who lives in Berkeley with her family. "The ad said I could not be protective of them."

Stier testified that the Yes on 8 advertisements playing up the "protect children" message harmed her sons.

"I felt like the constant reference to children felt manipulative and harmful to our family and our children. We were some great evil to be feared and that evil must be stopped," said Stier, the information technology director for the Alameda County Behavioral Health Care Services Agency. "The very thought I would be something to protect your children from I felt sickened by it. I think with all children the best thing for them is parents that love them.

"I love my children with all my heart and I know Kris loves them with all her heart," added Stier.

The issue of children also came up during opening statements from the lawyers in the case. Charles Cooper, a lawyer for Prop 8's backers, told the court that a "central purpose" of marriage is procreation, and therefore, needs to be limited to only a man and woman.

"It is a pro-child institution," he said. "Marriage is and always has been designed to channel men and women into relationships for the creation of children."

Theodore Olson, one of the plaintiff's attorneys, countered that having children should have no basis on whether a couple is allowed to marry. He noted that many same-sex couples are raising children that are their own biological offspring or have been adopted.

"Same-sex couples and opposite-sex couples in this state are equally allowed to have children," said Olson. "The quality of a parent is not measured by gender but the content of the heart."

The first expert witness to testify on behalf of the plaintiffs, Nancy F. Cott, Ph.D., a Harvard history professor who has studied the changing laws governing marriage in America, refuted Cooper's stance that procreation has been an essential element in marriage.

"There has never been a requirement that a couple produce children. Sterility in men and women has never been a reason to exclude someone from marrying," said Cott.

Cott also said that children, as well as society, would benefit from same-sex couples being allowed to marry.

"If couples of the same-sex are going to form intimate relationships and rear children, it seems to be in the public's interest for them to do that in marital units," she said.

The focus on children during the first two days of the trial was striking since the campaign attempting to block passage of Prop 8 largely avoided the issue. Following the No on 8 campaign's defeat, the LGBT community lambasted the leaders of the failed effort for not confronting the topic more forcefully in their ads or showcasing gay and lesbian parents and their children in the campaign.

The same reluctance to counter anti-gay group's child-focused messaging came up during the failed effort to block last year's ban against same-sex marriage in Maine. And whether or not to tackle the subject has continued to be hotly debated in California as activists attempt to repeal Prop 8 at the ballot box either later this year or in 2012.

Yet legal experts and historical scholars are not surprised to see the issue of children dominate the court proceedings taking place in the federal courthouse in San Francisco's Civic Center. It is another confirmation that, unlike in decades past, talking about just gay sex no longer commands the same contempt and loathing it once did among the public. What hasn't dissipated since LGBT people began coming out in droves over the last four decades, according to the experts, is heterosexuals' irrational fear that gay people are somehow after their children.

"Gay sex doesn't bother people anymore. It doesn't inspire the fear it once did," said Mar

Attorney Charles Cooper is defending Prop 8. Photo: Bill Wilson
c Spindelman, an Ohio State University law professor and expert in family law and lesbian and gay rights. "To generate that kind of heat and anxiety, you have to talk about kids."

By zeroing in on the anti-gay group's claims that children need to be protected from hearing about same-sex marriage, the lawyers seeking to strike down Prop 8 are trying to demonstrate the animus behind the measure, said Spindelman. It also helps to counter the Yes on 8 side's procreation argument, he said.

"If you know there is an argument about children that is central to the case against you, as a strategic matter it is smart to try to make sure an argument from children doesn't wind up being a lopsided argument against the case for same-sex marriage. It is a recognition of the realities of how central the argument of procreation could be," he said. "If you know they are going to talk about procreation and children as a reason against same-sex marriage, you want to draw the sting and explain why those arguments should not be held against the right to same-sex marriage."

Anti-gay hostility

Jennifer C. Pizer, senior counsel and marriage project director for Lambda Legal, said Yes on 8's ads talking about the need to protect children could be key in proving to U.S. District Court Judge Vaughn Walker that the campaign was driven by anti-gay hostility.

"The campaign ads were designed to trigger a reaction in voters that involved fear and discomfort with gay people," said Pizer, who has been in court all week observing the proceedings. "I think it is going to matter how Judge Walker thinks about the burden that plaintiffs' bear and how much rank speculation can be used to justify discrimination."

Child-focused arguments have been used to defeat LGBT rights measures since the 1970s, yet LGBT activists have been reluctant to directly address the issue during the public campaigns. The first such campaign led by Anita Bryant to overturn a pro-gay measure in Dade County, Florida was called the Save Our Children campaign.

George Chauncey, Ph.D., a history professor at Yale University specializing in the discrimination gays and lesbians have faced, told the court that Bryant's campaign harkened back to media campaigns in the 1930s and 1940s that blamed homosexuals, called sexual perverts back then, for sexually assaulting children, even though most of the publicized incidents were of men attacking girls.

"It was a very effective campaign. Its very name drew on and renewed these public campaigns labeling homosexuals as child abusers," said Chauncey. "The state initiatives since the 1970s are another form of discrimination against gays we have seen."

The proponents of Prop 8 deftly played upon parental fears two years ago to sway a majority of California voters to back the anti-gay ban. Their television advertising was heavily focused on claims that same-sex marriage would be taught in the public schools.

One memorable spot featured a little girl coming home to tell her mother she learned in school that day she could "marry a princess" after reading the children's book King and King about a gay prince searching for a mate. After being shown the video, Katami questioned what exactly children needed to be protected from through the enactment of Prop 8.

"Protecting them from the fact certain people exist and want equal rights?" he asked. "The threat implied is insulting. There are ways of conveying the message in ways without demonizing a certain group of people. It is unfair and unjust."

In the voter guide sent to California households Prop 8's proponents claimed, "voting yes [on the measure] protects our children." Shown the voter guide, Katami said it reinforces the message that gay people need to be feared.

"It is discriminatory. It puts me in a category I do not belong," he said. "That isn't who we are and what we are about."

During cross-examination Brian Raum, a lawyer for the Yes on 8 campaign, questioned how Katami could conclude that the anti-gay group's ads were hostile to gay people.

"There was nothing in the ad that says Proposition 8 will protect children from you because you are bad. Would you agree?" asked Raum. "It didn't say same-sex couples are bad?"

Katami responded that the ads didn't have to be explicit because the message was clearly implied.

"It insinuates there is some disapproval of gay people and they should be feared," he said.

Raum pressed Katami on the issue, stating that "the fact is you don't think kids need to be protected from being exposed to same-sex relationships."

To which Katami replied, "Yes. There is nothing wrong with it."

The ads play on the notion that gay people are inferior, said Chauncey, and that children should be raised by heterosexual parents.

"It is a sign of how the place of gay people has changed and what one can say in polite society about gays since Anita Bryant has changed," said Chauncey. "[The ad] is a pretty strong echo of the argument that simple exposure to gay people is going to lead a whole generation of gay kids."






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