Yes on 8, Protect Marriage - Restoring Marriage and Protecting California Children

The live testimony in the federal trial of Perry v Schwarzenegger, the historic court battle over the definition of marriage, finally came to a close.

Our lead trial attorney Charles Cooper and the rest of the Prop 8 Legal Defense Team did a superb job defending the will of the voters and the institution of marriage itself under extremely difficult circumstances in this San Francisco courtroom. As we consistently saw in most of the critical pre-trial rulings, virtually all of Judge Vaughn Walker’s significant rulings during the trial went against us.

For example, Judge Walker’s insistent efforts to broadcast the trial proceedings worldwide on the internet, in violation of federal laws, caused two-thirds of our expert witnesses to withdraw from the case just before the trial started. Quite understandably, these experts were fearful of the likely harassment and retribution they would suffer, personally and professionally, if their live testimony was broadcast worldwide as Judge Walker had ordered. As the trial started, the cameras were still rolling and there was no way to guarantee the witnesses that their testimony would not be broadcast. Even though the US Supreme Court later overruled Judge Walker and prohibited the broadcasting of this case, it was too late.

The loss of four witnesses put tremendous added pressure on our team of defense attorneys to find other ways to get our critical evidence into the record. So during over 30 hours of our cross-examination of the plaintiffs’ witnesses, our attorneys succeeded in moving key studies, statistics, reports and other evidence into the record, and obtaining critical concessions from the other side’s witnesses on many subjects, such as child-rearing and monogamy. Thankfully, our legal team was extremely successful in this regard.

After weeks of 20+ hour days, our attorneys finally were able to get a good night’s rest. We appreciate your prayers for them and your words of encouragement. Starting today, they will be working for the next 30 days to submit additional briefings to the judge. They will also start preparing to go back before Judge Walker sometime in March to present final closing arguments. And then we will await the court’s ruling.

No matter how Judge Walker rules, all sides agree that this is just the first stage in a much longer journey that will ultimately end at the U.S. Supreme Court. No matter which side wins this first legal test, the case is surely to be appealed to the Ninth Circuit Court of Appeals, and eventually to the nine Justices of the U.S. Supreme Court.

Even though the live testimony has ended, we must continue our efforts to secure the resources needed for a strong legal defense of Prop 8.

Every person involved in our legal defense has made tremendous sacrifices. Lead trial counsel Charles Cooper and his team from the Cooper & Kirk law firm have done a spectacular job. Special thanks is also due to the excellent attorneys of the Alliance Defense Fund who donated literally thousands of hours of legal work as part of the defense team.

In particular, we are also extremely grateful to our own General Counsel, Andy Pugno. Not only has he worked tirelessly for months on end and represented us ably in the courtroom, his entire family has paid a price as Andy has been fighting for the institution of marriage. We owe him, and his family, a debt of gratitude.

Below is a statement Andy released to the media late yesterday about the case. It’s an excellent summary of how this show trial unfolded. The video of the full press conference can be view on our website.

“Today concluded the presentation of evidence in the federal trial, Perry v. Schwarzenegger, challenging Prop 8’s definition of marriage as only between a man and a woman. Our Prop 8 Legal Defense Team did a remarkable job in defending the will of over 7 million California voters who passed it into law.

“What may be lost in all the sensationalism of the past two and a half weeks of trial is that the burden of proof to invalidate Prop 8 lies squarely with the plaintiffs. They cannot win unless they prove that the voters were “irrational” when they chose to preserve the traditional definition of marriage in our state. Contrary to their public relations claims, the outcome of this case does not depend on whether the Prop 8 sponsors can prove that homosexual marriage will harm traditional marriage. The controlling legal issue is not whether homosexual marriage is good or bad, but rather whether the people have the right to decide what is best. The plaintiffs simply did not carry that burden.

“Meanwhile, we have shown that limiting marriage to its longstanding definition is rational because marriage benefits children, not just the adults. Whenever possible, it is best for a child to have both a mother and a father. And man-woman marriage is the only human relationship that can biologically serve that distinctive purpose. A same-sex relationship can never offer a child both a mother and father. It’s that simple.

“The plaintiffs put on a spectacular show-trial of irrelevant evidence, calling to the stand many “expert” witnesses to testify that allowing homosexual marriage would: help local governments raise more tax revenues, help gay and lesbian couples to accumulate greater wealth, and improve the self-esteem of homosexuals. But those are political arguments for society to consider, not legal support for the claim that the US Constitution contains the right to homosexual marriage. The courtroom is simply not the proper forum for what is clearly a social, not a legal, appeal.”

Thank you for your continued help through prayer, financial support, encouragement, and spreading the word. We – all of us – are responsible for the shape of our society when we hand it off to future generations.

Ron Prentice, Executive Director
Protectmarriage.com

Today concluded the presentation of evidence in the federal trial, Perry v. Schwarzenegger, challenging Prop 8’s definition of marriage as only between a man and a woman. Our Prop 8 Legal Defense Team did a remarkable job in defending the will of over 7 million California voters who passed it into law.

What may be lost in all the sensationalism of the past two and a half weeks of trial is that the burden of proof to invalidate Prop 8 lies squarely with the plaintiffs. They cannot win unless they prove that the voters were “irrational” when they chose to preserve the traditional definition of marriage in our state. Contrary to their public relations claims, the outcome of this case does not depend on whether the Prop 8 sponsors can prove that homosexual marriage will harm traditional marriage. The controlling legal issue is not whether homosexual marriage is good or bad, but rather whether the people have the right to decide what is best.  The plaintiffs simply did not carry that burden.

Meanwhile, we have shown that limiting marriage to its longstanding definition is rational because marriage benefits children, not just the adults. Whenever possible, it is best for a child to have both a mother and a father. And man-woman marriage is the only human relationship that can biologically serve that distinctive purpose.  A same-sex relationship can never offer a child both a mother and father. It’s that simple.

The plaintiffs put on a spectacular show-trial of irrelevant evidence, calling to the stand many “expert” witnesses to testify that allowing homosexual marriage would: help local governments raise more tax revenues, help gay and lesbian couples to accumulate greater wealth, and improve the self-esteem of homosexuals.  But those are political arguments for society to consider, not legal support for the claim that the US Constitution contains the right to homosexual marriage. The courtroom is simply not the proper forum for what is clearly a social, not a legal, appeal.

Once again, religion was on trial this morning as a lawyer for the challengers to Prop 8 cross-examined political scientist Kenneth Miller. In their desperate attempt to make something of their case stick, the anti-Prop 8 lawyer spent extraordinary time – four hours, in fact – trying to get the witness to concede that the margin of victory for Prop 8 in the November 2008 election was driven solely by “religious” voters.  But Dr. Miller’s testimony provided an impenetrable roadblock, establishing that—while religious views were certainly one of many factors that informed some voters’ support for Prop 8—no exit poll or voter study has shown that religion alone determined the result of the election.

But let’s assume for a moment that it could be shown that religious views formed the basis for even most of the voters who supported Prop 8.  So what?  Are we to understand that the votes of California’s faithful shouldn’t be counted?

In any event, the plaintiff attorneys then changed gears and made another run at proving their claim that gays and lesbians are a “politically powerless” minority in California, entitled to extraordinary protection under the US Constitution.

They hit a wall there, too, when they attacked California’s initiative process.  Their theory: that allowing the people to vote for or against ballot initiatives is unconstitutional because the voters on the losing side don’t get their way.  So, they claim, Prop 8 violates the rights of gays and lesbians because they couldn’t get enough votes to defeat it at the ballot box.  Seriously?  But the notion that gays and lesbians can’t win ballot contests in California fell apart when, on cross-examination by Prop 8 Legal Defense team member David Thompson, it came out that in every election in recent history where voters were asked to pass initiatives to increase discrimination against homosexuals, the people of California rejected them.

The plaintiffs continue to throw things against the courtroom wall in hopes that something will stick.  The trouble is, their target isn’t the law. They’ve missed the mark in terms of legal arguments and therefore have to rely on strictly emotional appeals for sympathy.

But no matter how loud the pleas for sympathy become, there is simply no legal basis for the fantastical, unsupportable claim that the homosexual community in California is “politically powerless.” Does Equality California, California’s biggest gay lobby organization, think of itself as powerless? Does the Human Rights Campaign, which featured President Obama at their latest dinner, believe they are politically powerless?  Are we to believe that these groups are politically powerless despite their ability to raise $43 million to oppose Prop 8, and to attract the support of the entire political establishment, Hollywood and the media?  Not with a straight face we can’t.

The afternoon brought the testimony of our second witness, David Blankenhorn, president of the Institute for American Values, who provided his expertise on the institution of marriage, fatherhood and the family structure. He rejected the suggestion by plaintiffs that marriage is purely a private construct between two adults.  Rather, he explained, marriage between a man and woman is a globally recognized and historically public institution.  In fact, it is the only social relationship with a “biological foundation” found in the complementary nature of man and woman and their ability to procreate.  Across all cultures and times, no other human relationship has been more closely connected to the ultimate goal of uniting the biological, social and legal dimensions of parenthood for the raising of children.

As held by more than 50 experts in the field, the best environment for a child is to be raised by a biological mother who is married to her biological father.  This is not to say that only a mother and a father can do a good job raising a child.  But marriage serves to promote the ideal. 

Blankenhorn also testified that allowing same-sex marriage would contribute further to the already-existing “deinstitutionalization” of marriage, which means the process of unraveling the purpose, rules and common understanding of the marriage institution as a whole.  “Deinstitutionalizing” marriage, the witness explains, leads to higher rates of out-of-wedlock birth, more unmarried cohabitation, higher divorce rates, and more children being raised outside the scope of optimal conditions provided by their biological parents.

Outside the courtroom, the plaintiffs’ attorneys sharply criticized the notion that redefining marriage to include homosexual relationships would contribute to the deinstitutionalization of marriage.   That argument, they said, is like saying that extending the right to vote to women “deinstitutionalized” the voting process.
   
Nice sound bite, but the analogy fails.  Securing women’s right to vote didn’t do a thing to change the meaning and importance of voting.  By contrast there is no doubt that re-defining marriage to include homosexual relationships would ipso facto divorce the institution itself from its fundamental, biological foundation.  Nice try.

As lawyers for the plaintiffs challenging Prop 8 neared the conclusion of their arguments and prepared to “rest their case” today, the court next turned its attention to the defense case put on by the Prop 8 Legal Team. 

But that doesn’t mean our legal defense team, while waiting our turn to present the official defense, hasn’t been vigorously fighting to uphold Prop 8 during the plaintiffs’ case-in-chief.  In fact, when the courtroom came to order this morning the time clock tells me that while plaintiffs have logged 28 hours in presenting their case, the defense team has logged nearly as much time – 27 hours – cross-examining the plaintiffs’ witnesses and introducing our own evidence into the record.

Before resting their case, plaintiffs began Week Three this morning with a “document dump,” which means they admitted into the trial record a slew of documents they view to be evidence to support their case.  Nothing earthshaking in and of itself, but the subtext is utterly astounding.

Despite supposedly winning our appeal in the Ninth Circuit to protect the privacy of our internal Prop 8 campaign records, the trial judge has still forced us to hand over literally tens of thousands of pages of sensitive campaign memos, emails and other documents to the plaintiffs.  After sifting through our internal documents for facts they think aid their case, they had them labeled as trial exhibits and added to the court record. 

So if the Yes on 8 campaign has been forced to open up its internal campaign records for this court trial, then shouldn’t also the No on 8 campaign have to do so, too? 

Well, although we filed a motion some time ago asking the court to order the “No on 8” campaign to disclose to us the same types of documents as those we had to disclose to them, the court has refused to rule on our request and thus we have been prevented from examining even one single document from the opponents of Prop 8.
 
This is the sort of striking disadvantage we have suffered all along even before trial started and now during trial.  Since the moment the case started, the court has consistently sided with our opponents as they continue to “railroad” their case against the people’s right to vote for traditional marriage.

Another example:  For months the plaintiffs have been practically foaming at the mouth to get our campaign manager, Frank Schubert, onto the stand to be questioned as a witness.  Having come up empty-handed in their search for evidence of “anti-gay bias” in campaign records, they suddenly dropped their plans to call Mr. Schubert to the stand. 

But when we announced plans to call Mr. Schubert as our own witness to help defend Prop 8, they filed a motion to prevent him from testifying at all.  They got their chance to question Mr. Schubert on the stand but when they saw the whites of his eyes, they blinked. 

After plaintiffs rested their case today, our legal team called to the stand our first witness, Dr. Kenneth Miller, a political science professor at Claremont McKenna and expert on California politics.  Dr. Miller’s task was pretty straightforward: to lay out the reality that gays and lesbians in California have achieved enormous political power at all levels of government.  Why is this important?  Because to trigger the highest level of constitutional protection in favor of their claims, our opponents need to prove that gays and lesbians are a vulnerable and “politically powerless” minority.

To show that homosexuals are not politically powerless, Dr. Miller provided “striking” examples of the many ways in which they have won support for their political agenda in California, claiming allies such as federal officeholders (both US Senators and President Obama) , local and statewide elected officials (more than 30 local officials, mayors of the top three cities, and every single Constitutional officer); organized labor (more than 54 such groups opposed Prop 8); major newspapers (21 of 23 opposed Prop 8 while the other two took no editorial position); major corporations (including a consortium of Silicon Valley businesses), and the fact that the “No on 8” campaign actually raised more money than the “Yes” side.

Far from being “politically powerless,” the evidence has firmly established that the political influence of gays and lesbians in California has become quite powerful.

On Friday the plaintiffs called to the stand a witness to testify as an expert in social psychology and sexual orientation.  Dr. Gregory Herek, a University of California, Davis researcher, appears to be the last in a long line-up of the plaintiffs’ expert witnesses.  Initially, Herek gave his professional opinion that sexual orientation is an unchangeable trait for gays and lesbians.  This is a critical issue in the plaintiffs’ case.  A key legal element of their constitutional claim requires them to prove that sexual orientation is “immutable” (cannot be changed) in order to have the same high level of constitutional protection as for race and gender.

If the court sides with the plaintiffs on this and establishes a new legal precedent declaring homosexuality to be “immutable” like race and gender, it becomes far more difficult for any state to continue the traditional definition of marriage.

However, under hours of piercing cross examination by Prop 8 defense attorney Howard Neilson, Jr., Herek admitted that the evidence that homosexuality is genetically wired is “weak,” that “we don’t understand or know the origin of sexual orientation in men or women,” and that “no one knows what causes homosexuality.”  In fact, he said there are at least 3 different ways of defining sexual orientation, and conceded that there is actually no scientifically unambiguous definition of homosexuality.  He also explained that the number of categories of sexual orientation (straight, gay, lesbian, bi-sexual, etc.) has expanded and continues to grow as certain groups find new ways to describe their sexual orientation.
 
This proves up our point: If the meaning of sexual orientation is fluid and constantly changing, how can it possibly be likened to race, gender or any other “immutable” trait that invokes the highest level of legal protection?

On a practical level, a major problem for the plaintiffs’ case is the fact that one of the plaintiffs testified that she has, in fact, changed her sexual orientation from heterosexual to homosexual.  Though now in a same-sex relationship, she testified last week that she was formerly married to a man whom she loved and with whom she had children.  But now she is a lesbian.  That sounds like a change.

So as Week Two comes to a close in this trial, and as plaintiffs appear to be wrapping up their case, there is no question that the thrust of the plaintiffs’ case has been a series of emotional appeals, rather than a legal case for changing the meaning of marriage. Testimony about witnesses’ personal feelings and changes of heart—no matter how moving and emotional they may be—are simply not legal evidence that the United States Constitution gives gays and lesbians the right to redefine marriage for the rest of society. 

In fact, when the video cameras stop rolling and the sensationalism of this trial fades away, it will become clear that plaintiffs have essentially presented a political argument—not a legal claim.  Such a case belongs in the public debate, not a courtroom.

Over the last couple of days, we have been treated by the plaintiffs to astonishing intrusions into areas supposedly protected by the First Amendment, including religious freedoms and the political rights of free speech and association. 

It started Wednesday when a Stanford political science professor testified that, in his opinion, organized religion in the United States is such an overwhelming threat to gays and lesbians that they should be declared a vulnerable “minority” entitled to extraordinary legal protections under the US Constitution.  In short, he concluded, “religion is the problem.”

As a result of this “problem,” the witness testified, gays and lesbians in the United States are “politically powerless,” a legal term of art meaning that they are at such a disadvantage so as to be incapable of defending themselves in the political process.  Of course, the notion that the gay and lesbian community is politically feeble should sound backward to anyone, especially living in California.  Common knowledge tells us that gays and lesbians wield substantial political power in our state, both in passing major gay rights legislation and in amassing opposition to Prop 8.  Just one example:  While the California Teachers Association and other labor unions gave millions to the No on 8 campaign, not a single labor union ever contributed to the Yes on 8 campaign.

Of particular concern to the witness was the “breathtaking” numbers of people who volunteered their time in the campaign to help carry Prop 8 to victory.  The volunteer effort was so strong, he said, that it was impossible for gays and lesbians to defeat Prop 8.  And so Prop 8 violates the U.S. Constitution.  Really?  So let me get this straight.  If you lose a campaign because you can’t persuade the majority of people to rally behind you, then you have a constitutional right to nullify the votes of the majority.  Hmm. 

It boggles the mind, truly.

Later Wednesday, lawyers for the plaintiffs started submitting evidence of the “improper” influence of Catholics, Baptists, and other major religious communities in support of the traditional definition of marriage.  As though the First Amendment itself had disappeared, the court allowed their lawyers—over the strenuous objections of our legal defense team—to pry into the internal records of churches, communications between church members and church leaders, and other similar documents revealing these religious organizations’ commitment to protecting traditional marriage. 

For anyone who values the right to associate with others in a church community and freely exercise the tenants of their faith without fear of being dragged into court because of their beliefs, yesterday afternoon’s blitzkrieg by the plaintiffs into our previously protected religious and political freedoms was terrifying to behold.
 
Then Thursday, 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.  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.”

Clearly the plaintiffs will go to any lengths—even if it means sacrificing the precious protections of the First Amendment—to achieve their goal of invalidating the vote of the people.

Religious bigotry found an inordinate amount of expression in the seventh full day of testimony by the plaintiffs.  According to their witness, Stanford professor Gary Segura, the homosexual community is “politically powerless” and can point their collective finger at religion for their supposed lack of political success. The essence of their testimony is that the federal courts should make religious and moral views an illegitimate basis upon which voters make their decisions and cast their ballots. Segura took particular aim at the Catholic Church and Southern Baptists for holding religious views that, he believes, colors societal prejudices that gays and lesbians are “inferior.” He said it is almost impossible for gays to overcome the religious views of churches.

Upon another outstanding cross examination by Prop 8 defense attorney David Thompson, it became clear to any reasonable person that gays and lesbians have had substantial amounts of political capital in their grasp for at least the last decade, the two initiatives (Prop 8 and Prop 22) on same-sex marriage notwithstanding.

Much of today felt as if the plaintiffs had dragged us down the proverbial rabbit hole into an alternate world of fantasy where up is down. In the real world, it is impossible to square the claim that homosexuals do not enjoy significant political power in California when the newly-elected Assembly Speaker is an openly gay man and numerous state and local elected officials are openly homosexual. California has extensive domestic partnership protections which provide all the legal provisions of marriage, and the Governor, Attorney General, both our United States Senators and Superintendent of Public Instruction all aggressively opposed Prop 8. In 2008, our opponents raised $43 million to attempt to defeat Prop 8 and outspent us by over $3 million.  Equality California (the state’s most influential homosexual rights lobby) secured the passage of 11 separate pieces of legislation benefitting homosexuals.  And homosexual political advocates have the support of Hollywood, labor unions, the technology sector, leaders of corporate California, and nearly every single newspaper editorial board in the state. 

Add to that laundry list the fact that the United States Speaker of the House, Nancy Pelosi, is a Democrat from the most gay-friendly region of California and that there is not a single state with more anti- discrimination laws specific to homosexuals on its books.   I’m left shaking my head how a political science professor from a prestigious university reaches the conclusion that homosexuals are politically powerless in the United States, let alone California.

Apparently Professor Segura’s conclusion that gays are politically powerless hasn’t reached the gay community itself. You’d think that a group that sees itself as powerless wouldn’t be eager to push a ballot initiative on same-sex marriage. Yet that is exactly what groups like Equality California, the Courage Campaign and others are focused on doing – if not for 2010 then for 2012.

Only down Professor Segura’s rabbit hole does the fantasy of gays lacking political power exist, leading to the conclusion that gays and lesbians are a defenseless minority entitled to extraordinary legal protection.  In the real world, gays and lesbians are one of the most powerful, effective special interest groups who wield power far in excess of their numbers. The fact that they have amassed untold millions of dollars to fund a legal team that includes dozens of lawyers and some of the nation’s top litigators to come into federal court claiming to be powerless is rich with irony.

Today, the legal challenge to Prop 8 took an ugly turn as religion itself was put on trial. Plaintiffs’ witness Gary Segura, a Stanford University political science professor with expertise in the area of the political power of minorities including homosexuals, summed it up when he said “religion is the chief obstacle for gays’ and lesbians’ political progress.”

In trying to make the case that homosexuals are a vulnerable minority with no ability to achieve and secure success in the political system for their interests, Professor 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. Particular scrutiny was given to the official religious doctrines of the Catholic Church and Southern Baptists about marriage, family and sexual relationships. Therefore, according to his logic, gays and lesbians must be given special legal protection by the U.S. Constitution against religion itself.

If it weren’t such a serious and troubling matter, their line of attack against people of faith would be laughable. To suggest that the people of California cannot consider their own political, moral and religious views when casting their vote on Prop 8 is preposterous. Every election, many issues are presented to voters that involve moral issues, including stem-cell research, the treatment of animals, assisted suicide, the death penalty, health care reform and so on.

In any event, religion has taken the stage, front and center, in the battle over the constitutionality of Prop 8, and is being portrayed as an illegitimate basis for supporting traditional marriage. Religious bigotry surely found expression in today’s presentation by the plaintiffs.

The trial testimony also swerved way into “irrelevant” territory today when plaintiffs called to the stand a young man who was, as a child, forced by his Christian parents to undergo conversion therapy by a therapist because of his sexual attraction to men. No matter that this witness has never resided in California, was wholly unfamiliar with the Prop 8 campaign, was not a willing participant in his conversion therapy, and emancipated himself from his parents as a minor. What the personal experience of a person from Colorado who experienced a deeply troubled family life has to do with the constitutionality of Prop 8 is beyond me. What is clear is that today, however, the plaintiffs put the role of religion clearly in their sights and are likely to fire away at the legitimacy of religious and moral views, as well as the votes and voices of those who hold them.

The second week of the Perry v Schwarzenegger trial against Prop 8 began the way the first week ended: full of emotional testimony about how it “feels” for the relationships of gays and lesbians to not be considered “marriage.”  The plaintiff attorneys hope that the personal sentiments of a handful of witnesses, alone, will sway the court to invalidate the vote of more than 7 million Californians for keeping marriage between a man and a woman.

San Diego Mayor, Jerry Sanders, provided emotional testimony wherein he expressed his feelings behind changing his mind on the issue of civil unions.  At the time he previously supported civil unions for homosexual couples, he believed it was “a fair alternative to marriage,” and that he “didn’t communicate hatred and didn’t feel hatred” toward gay and lesbians by supporting civil unions.

Sanders also conceded on cross examination by Prop 8 defense team attorney Brian Raum that he believes “reasonable people can disagree on the value of civil unions versus same-sex marriage without hostility, animus or hatred” for homosexuals, and that a “good number” of people who voted for Prop 8 likely did so without animus, simply believing in the traditional meaning of marriage.

Sanders has a lesbian daughter who married her partner in Vermont last December while on a trip to visit her partner’s family in New York.  It seems they decided, by Sanders’ testimony, to marry on the spur of the moment and did not include any family or friends at their ceremony.  After the fact, Sanders was informed by a telephone call that his daughter had gotten married.  Sanders repeatedly testified about his hurt feelings about missing his daughter’s nuptials that weren’t witnessed by any family or friends (no word why the New Yorkers didn’t make the short trip to Vermont) as a way of validating his earlier change of heart about same-sex marriage.  Mayor Sanders’ love for his daughter is genuine and heartfelt, and he readily admits that his change of heart was based on emotion for his daughter, rather than any social, legal, or religious perspective.  However, this emotion-based testimony proves our point:  a court of law is not the forum for Mayor Sanders to push his views. The place for Mayor Sanders’ position to have any relevance was during the campaign, not in this courtroom.  Since when does the constitutionality of a measure hinge on how a single local mayor feels about his daughter? The only conclusion I can reach is that the plaintiffs are attempting to make an emotional rather than a legal argument to invalidate Prop 8.  Emotion is about the only thing they’re focusing on, witness after witness.

Will emotion and “hurt feelings” be enough for this judge to overturn the will of the people and be the first court in the nation to declare a federal constitutional right to same-sex marriage?  Time will tell.  But the body blows that we’re striking in our outstanding cross examination will make a compelling case to the U.S. Supreme Court, where legal experts predict this case will finally land.

As for this afternoon’s testimony, it was replete with dense statistics about the impact of same-sex marriage in the Netherlands, the first country to legalize it in 2001.  Their expert witness, Lee Badgett, research director of the Williams Institute at UCLA and same-sex marriage advocate, testified that same-sex marriage has no impact on opposite-sex marriage in the Netherlands.

But on cross examination by our lead trial counsel Charles Cooper, the witness had to admit that, since the legalization of same-sex marriage in that country, there has been an increase in the rate of children born out of wedlock and the number of single-parent families, and that the rate of opposite-sex marriage has declined. On re-direct questioning by plaintiff lawyer David Boies, the witness testified that these trends were in place before same-sex marriage was legalized.

The afternoon’s take away:  the impact of same-sex marriage is an evolving social experiment and it is fully within reason for Californians to retain the traditional definition of marriage while the Netherlands—and any other state in our nation – throw the deck of cards in the air and see where they land.  Californians are well within their right to choose not to be the guinea pigs for this social experiment.

This morning’s session of trial found expert witness Dr. Michael Lamb, a child development psychologist put on the stand to testify for same-sex marriage, having to admit under cross examination by Prop 8 attorney David Thompson that there exists no body of substantial research that contradicts our claim that children are best raised by a married mother and father.

In fact, he had to admit that the benefits known to flow to children of married parents are significantly stronger when the child has a biological connection to both parents—which is clearly something impossible for any same-sex couple to achieve.

Beyond some of his interesting opinions about adjustment of children raised by homosexual couples, it is noteworthy that Dr. Lamb based his expert testimony solely on research documents completed by others, as he has never completed a single study of his own on the subject.  Despite being offered as an expert in this case, he is not actually a clinical psychologist.  He has never treated children raised by gay couples. In fact he has never treated a patient at all.  He’s never interviewed a single child raised by gay men or lesbians, and his last interview of any child was more than 20 years ago. 

When you synthesize the hours of testimony provided this morning, two points come in to focus: the plaintiffs have done absolutely nothing to disprove the belief that the optimal social and personal outcomes of children are best achieved by being raised by their biological married parents, and that such a notion is a reasonable and rational reason for people to have voted for Prop 8.

Again, I will reiterate that the testimony of all the plaintiffs’ experts to this point—essentially a social policy debate—should instead be brought forward in a legislative or congressional hearing where it is the job of the legislative branch of government to make those decisions.  That is not what the courts are there for.