Defense of Prop 8 and traditional marriage takes place in California federal courtroom

The trial is expected to last two to three weeks. Whatever the outcome, the case is expected to be appealed to the high court.

Check back frequently as the Christian Examiner will post highlights from the trial.


(Day 12 — Jan. 27) At the conclusion of the testimony, U.S. District Judge Vaughn Walker gave attorneys until Feb. 26 to present their final post-trial documents. Once those papers are received by the court, Walker said he would set a later date for closing arguments to give him time to review the evidence and draft questions for the attorneys. The move likely means the trial will be recessed until March.

(Day 12 — Jan. 27) After a second day of sometimes-acrimonious testimony between defense witness David Blankenhorn and plaintiff attorney David Boies, both sides rested their case. A day after Blankenhorn, founder and president of the Institute for American Values, became frustrated by having his answers clipped by Boies, the attorney showed up in court today with a list of yes or no questions that prevented the marriage expert from expounding upon his answers.

During his testimony, Blankenhorn testified that he believes the benefits of children trump the social desires of those seeking gay marriage.

“With some anguish, I would choose children's collective needs over the rights of same-sex couples,” the Los Angeles times quoted him as saying.

He added he did not believe the conflict stemmed from a fight between good and evil, but rather “goods in conflict.” Domestic partnerships, he said, provided gays and lesbians with protections while still protecting the vital role of the institution of marriage.


(Day 11 — Jan. 26) After Miller finished his testimony in the early afternoon. Defense attorneys called David Blankenhorn, founder and president of the Institute for American Values to the stand, prompting an objection from the plaintiffs. Judge Vaughn Walker, allowed the testimony. Under questioning by the defense Blankenhorn discussed the role of procreation in marriage and how same-sex marriage would dilute the benefits of traditional marriage in child rearing.

(Day 11 — Jan. 26) Professor Kenneth Miller concluded his testimony under cross-examination, with David Boies pressing the witness on the role of the church in passing Proposition 8. During one exchange, Miller conceded that religious belief was a factor in the votes, but also suggested that the grassroots movement was probably the primary reason for the measure’s success.

(Day 11 — Jan. 26) Before resting its case, attorneys for the plaintiffs entered in paper evidence that defendant’s counsel called “document dumping.”

"Without calling a single witness, the plaintiffs sought to move into evidence several documents which they believed helped their case. These included printouts from Web sites that were not run by the ProtectMarriage.com campaign, as well as DVDs that were also not part of the official campaign,” wrote Austin R. Nimocks, senior counsel for the Alliance Defense Fund. “The persecution of religious beliefs continued as the plaintiffs and their gallery of supporters laughed and snickered at videos of citizens, pastors, and others who were concerned about the impact of same-sex 'marriage' on their community.”

(Day 11 — Jan. 26) Two attorneys supporting Proposition 8 report that as the plaintiff’s side rested its case, the amount of time spent arguing the case was fairly even, with the plaintiffs spending 28 hours presenting evidence and Proposition 8 defendants spending 27 hours on cross-examination.


(Day 10 — Jan. 25) After the plaintiff’s rest their case Monday morning, the defense finally begins to present its case by calling Dr. Kenneth Miller, an associate professor of government, from Claremont McKenna College. Plaintiff attorney David Boies, objects to Miller being using as a witness by claiming he’s not an expert on gay and lesbian issues. Judge Vaughn Walker disagrees, letting Miller testify.

Miller, who has done extensive research on ballot initiatives testifies that California’s homosexual community enjoys widespread support from local, statewide and federal elected officials as well as the Democrat party, organized labor, major corporations, progressive religious groups, most major newspapers and the entertainment sector.

He went on to say the U.S. Supreme Court defines political powerlessness as “no ability to attract lawmakers’ attention.” According to that definition, Miller says gays and lesbians clearly have political power on the state and federal level.

In addition, gay advocates were able to raise $43 million for the No on 8 campaign, out fundraising supporters.


(Day 10 — Jan. 25) In a Jan. 24 commentary for the San Francisco Chronicle, Debra J. Saunders, a conservative columnist who supports same-sex marriage, took the federal judge hearing the case to task for letting the proceedings slip into the miry clay of emotions, not jurisprudence.

“Forget the law,” she wrote. “Chief U.S. District Judge Vaughn Walker has allowed the trial over a challenge to overturn Proposition 8—the 2008 California ballot initiative that limited marriage to “a man and a woman” and was approved by 52 percent of California voters—to turn into what the measure’s opponents like to call a “teachable moment.” That's another way of saying that the law isn’t as important as feelings in this trial.”

She went on, singling out Plaintiff Kristin Perry of Berkeley, who in the first week of the trial testified, “The state isn't letting us be happy.”

“You know,” Saunders wrote, “that's the way a teenager talks—yet it now rates as evidence in Walker’s court.”

The commentator warned of the inherent danger of the court overturning the public’s vote.

“Any attempt to force same-sex marriage legalization through the courts makes it impossible to pre-empt possible unintended consequences,” she said, adding that one Proposition 8 supporter was marginalized on the stand during the trial’s second week.

“My fear: That someday some judge will recognize polygamous marriages lest a family in Berkeley feel unhappy or because anti-polygamy laws discriminate on the basis of religion. If the no-on-Prop. 8 argument prevails, why not?”

Such a ruling, she added, stomps on states’ rights.

“While many conservatives support same-sex marriage, a conservative should want to debate the possible consequences of upending family law. A good conservative doesn't push a court to impose a ruling that shreds states’ rights, as well as the right of Californians to govern themselves.”



(Day 9 — Jan. 22) A witness known as an expert on "sexual orientation" said Friday during the California Prop 8 federal trial that homosexuality is not a choice, although he said he did not know what the origin of homosexuality was and couldn't think of any studies showing a biological basis.

The man, Gregory M. Herek of the University of California at Davis, was called as an expert witness by opponents of Prop 8, a constitutional amendment which California voters adopted in 2008 and which restored the traditional definition of marriage in the state.

The trial before U.S. District Judge Vaughn Walker in San Francisco could last several weeks and will determine whether California was within its rights to prohibit "gay marriage." The case could end up before the U.S. Supreme Court and decide the constitutionality of laws and constitutional amendments banning "gay marriage" not only in California but also in every other state.

Each day during the trial Baptist Press will post a blog entry from someone in the courtroom. Following is commentary on day nine of the trial from Austin R. Nimocks, senior counsel for the Alliance Defense Fund, which supports Prop 8):

"Friday marked the end of the second week of the latest assault on marriage in our country. With the attorneys for Gov. [Arnold] Schwarzenegger and Attorney General [Jerry] Brown literally sitting on the sidelines, the defense of marriage rests solely with Cooper & Kirk, the Alliance Defense Fund, and the entire ProtectMarriage.com legal team. We willingly embrace this task.

"The testimony Friday all came in the form of a single witness: Dr. Gregory M. Herek, an expert in psychology from the University of California at Davis. He was called as the plaintiffs' final witness in a futile effort to demonstrate that the concept of 'sexual orientation' is immutable and no different from race or sex. The plaintiffs made quick work of Dr. Herek, asking him questions for less than two hours, and in no way establishing what they sought to establish. In fact, through Dr. Herek, they established quite the opposite -- that the idea of 'sexual orientation' has no clear or universal understanding or definition, but rather involves varying and fluid concepts of identity, desire, and behavior. In other words, 'sexual orientation' is, in no way, like a person's race or sex.

"For the remainder of the morning, and the entire afternoon, Dr. Herek was pounded by tough and vigorous cross-examination by ProtectMarriage.com attorney Howard Nielsen. Mr. Nielsen took Dr. Herek, who claims to be an expert, through dozens of books, research papers, and studies with which Dr. Herek was not familiar. Many times, Dr. Herek was presented with the statements and findings of certain scientists and then asked whether he agreed with a particular statement or conclusion. And on dozens of occasions, Dr. Herek was unable or unwilling to provide concrete answers to certain questions, even though he presents himself as an expert.

"The studies that Dr. Herek was forced to address covered decades of research and studies on the questions of human sexuality. From Freud to Kinsey to modern-day scientists, Mr. Nielsen forced Dr. Herek to face a multitude of scientific evidence that sexuality and 'sexual orientation' is largely a component of behavioral preferences and varies across time and place. In other words, the idea that 'sexual orientation' is indeed an immutable human trait was thoroughly debunked in court Friday. Dr. Herek even acknowledged that evidence exists that reparative therapy (designed to assist individuals with unwanted same-sex attraction) has been a helpful and productive thing for many people who have sought treatment.

"One of the most poignant moments of Dr. Herek's testimony came late in the day when he was asked whether he was aware of any study that identified a specific biological origin for homosexuality. (Another way of asking may be whether or not homosexual behavior is in our DNA.) Dr. Herek, the expert on 'sexual orientation,' didn't know. He answered, 'I have a sense that there might be some. But I — this is not something that I prepared for in terms of coming today. But as I said, I would certainly agree with the statement that we don't know what the origins are of sexual orientation.' Not the kind of answer one would expect from an expert on this subject.

"At the end of the day, the plaintiffs rested their case. By resting, they announced that they no longer had any evidence to offer in support of their case to redefine marriage for the entire country. After two weeks, here's what the plaintiffs established:

"(1) That they're capable of calling witnesses who have absolutely nothing to do with the case.

"(2) That the so-called expert on 'sexual orientation' is unable to establish that there is a well-understood, universal definition of this concept (unlike race or sex).

"(3) That they're capable of disrespecting religious faiths of all kinds.

"(4) That their objective economist would still support the repeal of Proposition 8 even if the evidence proved same-sex 'marriage' to be an economic calamity.

"(5) That their expert on marriage admitted that a major historic purpose of marriage was to meet the child's need to be emotionally, morally, practically, and legally affiliated with the woman and the man whose sexual union brought the child into the world.

"(6) That their historian admitted that people voted for Proposition 8 for a range of reasons that had nothing to do with an invidious intent to 'discriminate.'

"(7) That their developmental psychologist admitted that there are differences between men and women that affect child development, that there is evidence that the absence of a father has its greatest and most predictable effect earlier in a child's life, and that it is important for infants to attach to both their father and mother.

"(8) That their expert on political science thinks that the movement to redefine marriage has 'no reliable political allies,' even though the California governor and attorney general are refusing to defend this case.

"In the end, after two weeks of trial, the plaintiffs have questioned witnesses for about 28 courtroom hours while the ProtectMarriage.com legal team has questioned witnesses for about 27 courtroom hours, and the ProtectMarriage.com legal team has not yet called a single witness.

"[This week,] experts defending marriage and the California marriage amendment will testify."

Compiled by BP News


(Day 8 — Jan. 21) Attorneys seeking to overturn California Prop 8 continued Thursday what critics called a chilling attack on religious freedom, as Prop 8 opponents called to the witness stand and questioned Hak-Shing William Tam, a leader in the Chinese Christian community who backed Prop 8.

The federal trial before U.S. District Judge Vaughn Walker in San Francisco could last several weeks and will determine whether California was within its rights to prohibit "gay marriage" in 2008 by adopting the constitutional marriage amendment. The case likely will end up before the U.S. Supreme Court and decide the constitutionality of laws and constitutional amendments banning "gay marriage" not only in California but also in every other state.

Tam helped lead the effort to get support in the Chinese community for Prop 8. Lawyers for Prop 8 opponents tried to show that Tam was motivated by bias against homosexuals.

"For the first time (we believe) ever in a court of law, a proponent of a voter initiative was put on the stand to be interrogated under oath about his own political, moral and religious views," Andy Pugno, general counsel of ProtectMarriage, wrote in his blog. "Not only was the Prop 8 supporter forced to reveal his political and religious views under penalty of perjury, but he was further forced to defend and substantiate his views so the court can decide whether his views are 'improper.'

Completing the cross-examination of Dr. Gary M. Segura, the professor of political science from Stanford, was the first order of the day.

Dr. Segura’s last statement before leaving the witness stand was that he was of the opinion that the 'gay and lesbian community’ possessed no 'reliable allies' in the political world. This includes, in his opinion, President Obama, Speaker of the House Speaker Nancy Pelosi, Senate Majority Leader Harry Reid, Rep. Barney Frank, and others whom he dismisses as not being true political allies of those who want to redefine marriage.

Austin R. Nimocks, senior counsel for the Alliance Defense Fund wrote that he felt that this was an interesting statement. “As Dr. Segura was giving that testimony, I could not ignore that I was sitting at the counsel table, occupying chairs that are supposed to be occupied by attorneys for both the governor and attorney general of the State of California. Both Gov. [Arnold] Schwarzenegger and [Attorney] General [Jerry] Brown took solemn oaths to uphold, protect, and defend the constitution and laws of the State of California. Yet, here the plaintiffs are, attacking the constitution of the State of California, and both Gov. Schwarzenegger and [Attorney] General Brown, as we all know, are refusing to defend the case,” he wrote.

Dr. Hak-Shing Tam, one of the official proponents of Proposition 8, was called next to the stand.

Dr. Tam explained to the court his belief that the redefinition of marriage in our society will take a grave toll on our communities and children. There is a lot of evidence to prove this fact. Adultery, no-fault divorce, and fatherlessness are just a few of the large problems associated with the erosion of the marriage culture in our country already.

“Yet, the plaintiffs [Thursday] possessed no shame in their efforts to mock Dr. Tam for holding these beliefs,” wrote Nimocks.

“Dr. Tam was questioned about his affiliations, his associations, who he knew (and who the plaintiffs demanded that he knew, even though he didn't know them), and what he believed. In other words, Dr. Tam had his religious and political views placed under a judicial microscope to determine whether they were 'correct' in the eyes of the law. Yes, you heard me right. The plaintiffs are trying hard to cast as legally wrong the political and religious beliefs of those who do not agree with them,” Nimocks continued.

The plaintiffs’ first witness of the day was Ryan Kendall. Kendall is not a California resident, is not familiar with Proposition 8, nor is seeking a marriage license in California.

According the ADF Senior Legal Counsel Austin R. Nimocks, Kendall was called to testify exclusively to disparage (a) Christianity and (b) conversion therapy. In open court, Kendall announced that he was gay. He testified that he came to this realization at the age of 13, at which time he said his parents began a systematic effort to “convert” him back into a heterosexual. Kendall continued to describe this awful experience and how it has left an emotional scar on his life.

Attorney for ProtectMarriage, Jim Campbell, noted that many individuals who seek out conversion therapy have good results addressing their homosexual behavior and desires in a positive and constructive way. Kendall’s single instance of a bad experience does not make the California marriage amendment unconstitutional.

Gary Segura, a Stanford University political science professor, the second witness of the day, criticized the traditional beliefs on marriage by Southern Baptists and Catholics, saying that "religion is the chief obstacle" to political progress by homosexuals.

Segura blamed hostility, political opposition and even violence towards gays and lesbians on the teachings of major religious denominations. He further testified that there is no more powerful organization in the United States — save the government — than the church.


(Day 6 — Jan. 19) In a post on the Right On Daily blog, writer Aaron F. Park, takes on two plaintiff witnesses who revealed their long-term gay rights activism during cross examination last week. “This is significant as it would be like asking a pit boss to testify that gambling is not harmful,” Park wrote on his Jan. 17 blog.


(Day 6 — Jan. 19) The federal trial resumed today after being dark Monday in honor of Martin Luther King Day. The testimony opened with San Diego Mayor Jerry Sanders. It was Sanders’ reversal on a 2005 campaign pledge to support traditional marriage that helped launch the Proposition 8 movement. In 2007, after the City Council passed a resolution supporting same-sex marriage, Sanders announced he would veto the resolution, bud did an 11^th hour flip flop on his pledge the following day by tearfully announcing that his daughter was a lesbian, something he knew since 2003. “If government tolerates discrimination against anyone for any reason, it becomes an excuse for the public to do the same thing,” Sanders told attorneys.


(Day 5 — Jan. 15) Dr. Michael Lamb, an expert on child social development and adjustment from the University of Cambridge testifies that children don’t need a father to be “optimally well adjusted,” according to Protect Marriage’s blog. The expert later admits that he never did a study on children of gay parents and that he last interviewed a child 20 years ago.


(Day 5 — Jan. 15) Experts for the plaintiffs argue that gays and lesbians are stigmatized because they are not allowed to marry. One expert testified that domestic partnerships do not relieve the stress of gay couples, despite the fact that the legislation was sponsored by several prominent gay rights groups, including Equality California and Lambda Legal Defense.



(Day 4 — Jan. 14) Gay rights supporters blasted the high court’s ruling. In an interview with the Los Angeles Times, Rick Jacobs, chairman of the Courage Campaign, said, “The Supreme Court just struck a huge blow against transparency and accountability. The five conservative justices are enabling Prop. 8 supporters to mask their radical views. This historic trial will remain largely hidden from public view.”


(Day 4 — Jan. 14) In its ruling to block video coverage of the federal trial challenging Proposition 8, the U.S. Supreme Court determined the lower court potentially violated federal laws by amending its broadcast rules.

“Our review is confined to a narrow legal issue: whether the district court’s amendment of its local rules to broadcast this trial complied with federal law,” the majority opinion read. “We conclude that it likely did not and that applicants have demonstrated that irreparable harm would likely result from the District Court’s actions.

The court also cited evidence of harassment against Proposition 8 supporters, including vandalism, death threats, loss of jobs, Internet “blacklists” and business boycotts.

“While applicants have demonstrated the threat of harm they face if the trial is broadcast, respondents have not alleged any harm if the trial is not broadcast,” the majority opinion read.


(Day 4 — Jan. 14) As part of his testimony the previous day, Yale Professor George Chauncey frequently tried to link supporters of Proposition 8 to those who violated the civil rights of African Americans in the 1900s. In a blog on the Alliance Defense Fund Web site, Senior Counsel Jordan Lorence wrote:

“A chilling moment came when San Francisco city attorney Therese Stewart had Professor Chauncey read official doctrinal statements from the Southern Baptist Convention and the Roman Catholic Church that both generally restated what the Bible says about the definition of marriage as one man and one woman. Professor Chauncey said those doctrinal statements reflect historic bias against those who engage in homosexual behavior. It’s not hard to figure out what is so frightening about an attempt in federal court to attack and delegitimize the views of the two largest Christian denominations in America. This is further proof that this case, and the very definition of marriage, is about much more than the personal relationships and the inner feelings of people who choose same-sex relationships. It is about imposing a different and intolerant “morality” on America and eradicating opposing ideas.”


(Day 3 — Jan. 13) The U.S. Supreme Court in a 5-4 split decision has made permanent its ban of video cameras inside the California federal courtroom hearing the challenge to Proposition 8. The ruling came down about 2 p.m.


(Day 3 — Jan. 13) Attorneys from both sides are expecting a U.S. Supreme Court ruling today on whether video cameras will be allowed in the courtroom. We will be monitoring the situation, so check back later.


(Day 3 — Jan. 13) Heading into the third day of the trial, attorneys for Yes on 8 are expected to continue their cross examination of Professor George Chauncey, a Yale University professor who was called by the plaintiffs to testify about the history of discrimination that homosexuals have felt in America. According to Andy Pugno, one of the lead attorneys for Proposition 8, during Chauncey’s testimony for the plaintiffs the previous afternoon, the professor attested to examples of gays and lesbians being arrested and jailed, losing their jobs, being denied access to public accommodations, and suffering as the targets of “hate crimes.”

“While the history lesson was actually quite interesting, to be sure, it completely lacked any relevance whatsoever to the central question whether the voters of California could reasonably and constitutionally decide to continue traditional marriage,” Pugno wrote on the blog.


(Day 2 — Jan. 12) Carla Hass, communications director for Protect Marriage, wrote in a tweet that Cott came to support same-sex marriage when her book research showed how “punitive” marriage is.


(Day 2 — Jan. 12) Harvard Professor Nancy Cott, in her testimony about the history of marriage, revealed her own advocacy of same-sex marriage, highlighting the witness’ bias, according to Andy Pugno, one of the lead attorneys for Protect Marriage.

“On a separate note, the presentation of Prof. Cott as a scholarly observer fell apart when she admitted to being an entrenched and committed advocate for changing the law to allow same-sex marriage,” Pugno wrote on his blog.

“Whether filing legal briefs, lobbying to pass legislation or supporting organizations that advocate the deconstruction of marriage, she was solidly revealed as an irretrievably biased witness.”

Pugno added that Cott “did great damage to the plaintiffs’ own case, making key admissions in our favor.

“For example, she conceded that the consequences of same-sex marriage are impossible to know. She also admitted on the stand that the public interest in promoting the raising of children by both a mother and father is a purpose that is promoted by traditional marriage.”


(Day 2 — Jan. 12) Attendance at day two of the trial has dropped by about one-third, according to a tweet by Carla Hass, communications director for Protect Marriage.


(Day 1 — Jan. 11) As the result of one recent court ruling alone, the Yes on 8 legal team was expected to use the services of two dozen lawyers at a cost of $50,000 a day.


(Day 1 — Jan. 11) Ron Prentice, executive director of the Protect Marriage coalition that sponsored Proposition 8, called the opening day of the hearing “surreal.”

“The courtroom was packed shoulder to shoulder, and many more filled the overflow room. Television cameras crowded the hallways. Reporters swarmed the courthouse looking for an angle to cover. And some of the most skilled attorneys in the nation argued before a federal judge about whether the institution of marriage is somehow illegal.

“Never did I think I would see the day where God’s institution of marriage—the most stabilizing, pro-family, child-benefiting institution in human history—would be on trial before a federal judge in the nation whose forefathers founded the country on the premise of ‘in God we trust.’

“But here we are.”


(Day 1 — Jan. 11) In his opening arguments Charles Cooper, lead counsel for Protect Marriage, argued that traditional marriage served society well for centuries. He emphasized procreation and the needs of children as the primary focus of marriage. Cooper also challenged allegations by the plaintiffs by stressing that gays and lesbians were not the target of ill will or discriminatory intent in the Yes on 8 campaign.

“There are millions of Americans who believe in equal rights for gays and lesbians but draw the line at marriage.”

Finally, he argued that California voters were perfectly within their rights to amend the state constitution to prevent destabilizing the institution of marriage.


(Day 1 — Jan. 11) Hours before the Jan. 11 start of the landmark Perry v. Schwarzenegger case—in which several gay couples are trying to have Proposition 8 overturned on constitutional grounds—the U.S. Supreme Court issued a temporary injunction blocking video cameras from the courtroom. The order, which overturned a lower court decision, will expire on Wednesday, giving the justices several days to consider arguments from proponents of Proposition 8, who have argued that the cameras could lead to intimidation of witnesses. In most instances, TV cameras are barred from federal courtrooms, but gay rights advocates successfully argued that they be allowed in the court so that tape could be aired later on such sites as You Tube. Proposition 8 supporters, citing post election protests that included vandalism and led to several people losing their jobs, said airing the video would subject witnesses to harassment.