Issue:  Vol. 48 / No. 7 / 15 February 2018

Breaking news: Verbal fireworks bring Prop 8 trial to a close


David Blankenhorn testified for the defense in the Prop 8 trial.
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The 12th day of the federal Proposition 8 lawsuit began with verbal fireworks in the courtroom and ended Wednesday (January 27) with the unofficial close to the defendant's case in the trial.

The legal wrangling over whether Prop 8, the ban against same-sex marriage California voters adopted in 2008, is unconstitutional has been playing out before U.S. District Court Judge Vaughn Walker inside the federal courthouse mere blocks away from San Francisco's City Hall, where thousands of LGBT couples wed two years ago.

Lawyers for the plaintiffs, two same-sex couples denied the right to marry in the Golden State, have tried to show that there is no rational basis for Prop 8 and that it harms same-sex couples and their children. They rested their case in the lawsuit, known as Perry vs. Schwarzenegger, Monday morning.

The defendants in the lawsuit, the proponents of Prop 8, spent the last two days mounting a brief presentation to the court, calling only two witnesses. Their other two witnesses pulled out before the start of the trial Monday, January 11 due to fears they would have been harassed were the trial to be televised. [The U.S. Supreme Court stepped in two days later and banned any broadcast of the proceedings, whether on television or the Internet.]

The last day of the proceedings began with the Yes on 8 campaign's star witness, David Blankenhorn, president of the Institute for American Values, being cross-examined by David Boies, one of the co-counsel for the plaintiffs. The two had spent much of the afternoon Tuesday sparring with one another, and Walker ended that day's proceedings with the hope a night's rest would lead to a smoother exchange.

Come Wednesday morning the verbal jousting between Boies and Blankenhorn had only increased, with the judge even vituperating the witness for his belligerent tone.

"If this were a jury trial I would have to instruct them to take into account your demeanor," warned Walker.

The admonition did little to alter the heated questioning, with an exasperated Boies repeatedly asking Blankenhorn to give only "yes, no, or I don't know" answers and the witness complaining he could not answer in such a simplistic manner.

After one testy exchange, where Blankenhorn complained that Boies was making fun of him, the judge once again interjected to compel the witness to answer the attorney's questions.

"He is not laughing at you. He is amused at the back and forth, as I think many of us witnessing this are," said Walker.

What Boies was able to draw out of the witness was further statements confirming that same-sex marriage would not negatively impact opposite-sex marriages. He returned to Blankenhorn's book The Future of Marriage, in which he had written that there would be 23 positive impacts stemming from the legalization of same-sex marriage.

Under questioning, Blankenhorn admitted he agreed with 13 of the items on the list, five he wasn't sure of and five he didn't know about. Included among those bullet points he agreed with was that is would provide stability for same-sex couples; lead to greater social acceptance of "homosexual love;" a decrease in their economic inequality; as well as adoption of children from the foster care system and providing them with "stable, loving" homes.

Further eroding Blankenhorn's claims to be an expert on marriage, he admitted to Boies that he has not read any of the U.S. Supreme Court's rulings dealing with marriage and that he is merely "a transmitter" for other scholars' work in the field.

"I have never consulted by reading anything such as a court document that is related to this topic," testified Blankenhorn. "If I have, I have forgotten it."

After a brief redirect of Blankenhorn, the defendants told the court at 11:45 a.m. they had no more witnesses to call. They did not officially rest their case and left open the option of calling more witnesses in light of the fact they are still waiting for documents they have subpoenaed from the No on 8 campaign.

Several groups, such as Equality California, that tried to defeat the anti-gay ballot measure have until Tuesday, February 2 to turn over the materials. Andy Pugno, general counsel for the Yes on 8 campaign, said it is "highly unlikely" they would have to call anyone else to testify based on the materials they are seeking, but the defendants left open that possibility as a precaution.

Walker has yet to rule on several matters in the trial, including whether to allow Imperial County to intervene on behalf of the defendants' side in opposition to the city and county of San Francisco and the clerks of Alameda and Los Angeles counties, all of which intervened on the side of the plaintiffs.

Also still to be determined is whether William Tam, one of the official proponents of Prop 8 who also is listed as one of the named defendants in the lawsuit, will be allowed to withdraw from the case. The plaintiffs' attorneys called Tam to testify as a hostile witness last week when he revealed he worked closely with the Yes on 8 campaign on some of his anti-gay messages.

Those parties wishing to file amicus briefs in the case have until February 3 to request to do so with the court. Walker said he would determine which ones he wanted to accept and would restrict the briefs to no more than 15 pages in length. He said he doubted the need for more material as "it is an abundant record" already before him.

"I doubt amicus briefs can add too much but one never knows," said Walker.

Prior to hearing the closing arguments from the two sides, Walker said he wanted "to take some time to go over all this material" and gave them until February 26 to file their proposed findings and evidence in the case. Following that date will come the day for the closing arguments.

Before leaving the courtroom, Walker complimented the attorneys for both parties on their work in an "obviously fascinating case" and voiced particular praise for the law firms' younger attorneys who "have done a splendid job" in the lawsuit. The judge shook hands with several of the lawyers prior to making his exit.

Both sides express confidence

Speaking to a packed media room, attorneys for both sides in the case expressed confidence in the arguments and evidence they had presented. For the third day in a row the plaintiffs' attorneys crowed that the other side's witnesses had basically endorsed the arguments they have been making as to why Prop 8 is unconstitutional.

"Even the witnesses brought by the defendants agreed with our points," said Boies. "We came in to this trial stating we would prove three things: that marriage is a fundamental right; that denying same-sex marriage hurts gays and lesbians and their children; and that there is no benefit to society in denying gays from marrying. Witness after witness proved that."

Attorney Ted Boutrous said in all his trial experience he had never seen a defendant's witness side again and again with the arguments that the plaintiffs made.

"We saw the most compelling thing I have ever seen in court, a witness paid for by the proponents of Prop 8 admit to a list of facts that proves our case," he said. "Mr. Blankenhorn admitted allowing gay marriage would reduce the divorce rate. It was a stunning moment."

Another marquee moment, said Boutrous, was when Blankenhorn admitted he had never read a court ruling on marriage.

"If you are looking for a big hole in his testimony there's one," said Boutrous. "I think our case is extraordinarily compelling and not even a close call."

Pugno, the general counsel for the Yes on 8 campaign, countered that he thought his legal team did a complementary job considering the "entire defense of Prop 8 was on [their] shoulders" because both Governor Arnold Schwarzenegger and Attorney General Jerry Brown refused to defend the state law. The two politicians told the court Prop 8 was unconstitutional and should be struck down.

He also said that the defendants did not have to mount a sweeping defense of Prop 8 at trial. They could have extended the trial to being five weeks rather than two and a half, he said, but chose to present a minimal defense. He expressed confidence that even with just two witnesses, the Yes on 8 side had made persuasive arguments with the court as to why Prop 8 is legal.

"Something I believe that was lost sight of in this trial is who has the burden of proof. It is not on the proponents of Prop 8 and the voters," said Pugno. "They have a tough burden to prove the voters had no good reason to pass Prop 8. The question in this trial is do people have the right to decide what is best; the question is not whether gay marriage is good or not."

Pugno contended it is "certainly appropriate" for voters to treat traditional marriage as "special" and that it is not irrational for voters to ultimately conclude traditional marriage needs to be preserved.

"Believe it or not that is the case. If we show that we win," said Pugno. "We are very confident, ultimately, in the law and that whether here, or down the line, the process will prevail."

Pugno was alluding to the fact that the lawsuit is likely to land before the U.S. Supreme Court, which will have the final say over Prop 8's legal fate.

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