Prop 8 Update

Defense witnesses agree Prop 8 discriminates against gays
by Matthew S. Bajko
Bay Area Reporter
Sunday Jan 31, 2010


The only witnesses called by the backers of California's same-sex marriage ban in the federal court case examining whether the measure is unconstitutional both testified this week that the anti-gay law, known as Proposition 8, discriminates against gays and lesbians.

One of the experts went so far as to say that some voters supported the measure due to anti-gay bias, while another admitted under oath that he wrote in a book that legalizing same-sex marriage would, in effect, strengthen America.

The testimony from the two men could be crucial for the plaintiffs in the case, known as Perry vs. Schwarzenegger , as they try to convince federal judges that Prop 8 was based on animus toward gays and lesbians, and therefore, violates the U.S. Constitution.

The trial wrapped up Wednesday afternoon (January 27) as the backers of Prop 8 presented their last witness. U.S. District Court Judge Vaughn Walker, who is hearing the case without a jury, has delayed closing arguments in the trial until after both sides present their evidentiary briefs. Closing arguments are not expected until March at the earliest. Although Walker is not under any deadline to issue his ruling in the case, he is expected to render his decision rather quickly as he has prioritized speeding along the proceedings knowing the case is likely to land before the U.S. Supreme Court.

Legal experts following the trial expect Walker to find that Prop 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.

"We really feel we are being railroaded here," said Andrew Pugno, general counsel for the Yes on 8 campaign, about the way Walker has handled the case.

Yet the Yes on 8 side's case took severe hits from its own witnesses this week. Not only have their credentials as being experts come under withering scrutiny, both have also made comments essentially agreeing with the plaintiffs' contention that same-sex marriages will not hurt heterosexual marriages and that legalizing gay nuptials will have a positive effect on children.

While on the stand Tuesday, January 26, David Blankenhorn, the president of the Institute for American Values, a think-tank focused on marriage and children's well-being, argued during his direct examination that allowing same-sex marriage would "deinstitutionalize" marriage for heterosexuals and that the "optimal environment" for children is to be raised by their biological mother and father.

But Blankenhorn also admitted that allowing gays and lesbians to marry did not kick-start the deterioration of marriage and that it would be "hard to know" what impact same-sex marriage would have on heterosexual marriages.

"Heterosexuals did the deinstitutionalization," he testified. "It did not just crop up a few years ago when the idea of creating same-sex marriage popped up."

He also stated that he couldn't say "with scientific evidence" what the consequences from having same-sex couples marry would be, but that his "fear" would be less straight couples marrying, more single parent homes, and higher divorce rates.

While he supports domestic partnerships, Blankenhorn admitted to Charles Cooper, the attorney representing the Yes on 8 campaign, that they are essentially marriages and that he wrestled with why separately categorizing them was not discrimination.

"It is morally wrong to refuse to call two things that are the same the same name," he said. "It was a big thing I had to grapple with in my own mind so I could look myself in the mirror."

However, under cross-examination by plaintiffs' attorney David Boies, Blankenhorn admitted that allowing same-sex marriages would be advantageous to both the couple and their children.

"I believe adopting gay marriage would likely improve the well-being of their households and their children," he said.

Blankenhorn also stated that he still believes in what he wrote in his book The Future of Marriage that "the principle of equal dignity most apply to gay and lesbian individuals" and that "We would be more American on the day we provide gay marriage than the day before."

Under cross-examination Monday, January 25 Claremont-McKenna College Professor Kenneth P. Miller, Ph.D., called as an expert on the political power of gays and lesbians, admitted to Boies that Prop 8 was discriminatory because it treats same-sex couples differently than opposite-sex couples.

"In terms of other laws that would, you know, officially discriminate at the state level against gays and lesbians - there might be an absence of non-discrimination laws, but in terms of the government officially discriminating itself on the basis of sexual orientation, again, if we're looking at the institution of marriage, then the state does treat heterosexual couples differently than same-sex couples," Miller said on the witness stand.

Pressed further by Boies, Miller was more explicit in his determination that Prop 8 discriminates due to its placing same-sex couples in a separate category from heterosexual couples.

"It makes a distinction between these two types of couples, yes. And under that definition, discrimination is discrimination," said Miller. "My view is that Proposition 8 makes distinctions. And in that sense it discriminates between these two different categories, makes a distinction in terms of discriminating. Whether it's invidious discrimination, that's a different question."

Speaking to reporters about the testimony, Boies said he thought Miller "did a great job for us."

"He ended up admitting three or four times that Prop 8 is discriminatory," said Boies.

Miller even went so far as to say that lesbians in particular face greater discrimination than women in general. The statement could be a significant factor in the case, as Miller likened sexual orientation to gender, which already is a protected class under U.S. law.

Asked by Boies if he would agree that lesbians face "all of the prejudice and stereotyping of women generally, plus more," Miller said, "That's a fair statement."

Taking the stand Tuesday morning, Miller told Boies that he felt anti-gay attitudes did come into play over the Prop 8 vote. He also said that because the initiative process can be used to disenfranchise minorities - such as Prop 8 ending gays and lesbians having the right to wed in California - the courts should review the measures.

"I believe some people voted for Proposition 8 based on anti-gay prejudice and discrimination," said Miller. "If there is an established right then the courts have a responsibility to check that."

In an essay titled The Populace Legacy: Initiatives and the Undermining of Representative Government, which Miller co-authored in 2001 with Bruce Cain, a political professor at the University of California at Berkeley, for the book Dangerous Democracy? The Battle Over Ballot Initiatives in America, the two men took a strong stance against the use of ballot initiatives.

"The direct democracy mechanisms that posed the greatest challenge to representative government are the forms of the popular initiative," they wrote.

Pressed by Boies about his writings on the subject, Miller testified that the courts "should be more vigilant than less" in reviewing initiatives such as Prop 8. Yet when questioned again by David Thompson, an attorney for the Yes on 8 proponents, Miller said his views on the issue have evolved over time and that he now sees the initiative process more favorably.

"It could provide a check on judicial activism," he said. "I think it is perfectly fine if consensus builds in the country to have same-sex marriage, but that is different from judicial imposition of it."

Pugno discounted Miller's testimony when asked about it by reporters.

"I didn't hear [Miller] saying that Prop 8 discriminates," said Pugno, adding that "every law discriminates. Some people get taxed more than others, for example."

Ted Boutrous, an attorney for the plaintiffs, told reporters that Miller's testimony was "devastating" because it confirmed what they have been arguing over the last two and a half weeks.

"Miller was saying that Prop 8 was based on bias. We thought it was stunning because it fits so closely with the evidence we put on in our case," said Boutrous.

And Theodore Olson, another of the plaintiffs' lawyers, called Blankenhorn's contentions that same-sex marriage would deinstitutionalize marriage "nonsense."

"This is the game they are playing. They define marriage as between a man and woman and they call that the institution of marriage. Then they say if we let a man marry a man it would deinstitutionalize marriage," said Olson. "That is the same as saying allowing women to vote deinstitutionalizes the vote.

"It is a syllogism that falls apart," he added. "That is what they are doing and it is a game."

Austin Nimocks, a spokesman for the Yes on 8 legal team, said they were not concerned about Blankenhorn's statements.

"He made clear there is not equality between same-sex marriage and opposite-sex marriage," said Nimocks.

For more coverage of Wednesday's proceedings, see ebar.com.



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