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

Last week, we finally received some good news about our efforts to level the playing field in the Perry v Schwarzenegger case. As you may recall, when the live testimony phase of the trial concluded in late January, our opponents “rested their case,” but our outstanding team of attorneys defending Prop 8 did not. The reason? Even at that late hour we were still waiting for Chief Judge Vaughn Walker to rule upon our significant pending motion, by which we asked the Court to direct the leaders of the No on 8 Campaign to release to us the same types of internal campaign memos, strategies, and communications that we at ProtectMarriage.com had long before already been forced to hand over to them to use as evidence during the trial.

Under normal circumstances, judges ensure that the discovery and disclosure of potentially relevant evidence occur well before trial, and certainly no later than during the evidentiary portion of the trial. That is exactly what Judge Walker had ordered ProtectMarriage.com and the proponents to do. However, even as the trial was drawing to a  close, Judge Walker still had not taken up our “motion to compel discovery” which would have ordered the opponents of Prop 8 to also disclose any of their internal documents of the same kind we had been compelled to disclose. Of course we disagreed from the outset with the idea that any of these internal campaign records should have to be produced— by either side.  But once the ground rules had been laid to force us to disclose our confidential records, it was shocking and upsetting to see those rules not applied equally to our opponents.

So after the live testimony in the case had concluded, Chief Judge Walker referred our request for equal treatment to U.S. Magistrate Judge Joseph Spero.  Despite being outnumbered in the courtroom by 10-to-1, our attorneys clashed once again in the San Francisco Courtroom, arguing forcefully that the “No” campaign should be held to the same legal standards that the “Yes” campaign has had to endure in this case.  Last week, Magistrate Spero ordered the No on 8 groups (Equality California, Californians Against Eliminating Basic Rights, an ACLU campaign committee, and the No on Prop 8 umbrella campaign) to produce to our attorneys copies of all their internal documents “that contain, refer or relate to arguments for or against Proposition 8.”

They have until March 31 to produce these documents to us.

While this is good news for us, it clearly requires more work on our end to comb through potentially thousands of pages of memos, notes and emails in order to analyze and extract their impact on the case.  Even though the Perry case has been out of the headlines, the work for our legal team has not slowed. This is why we ask for your continued financial support as they work tirelessly on your behalf.

Notably, when we sought to protect some of our internal documents as being confidential and privileged, our opponents cried foul.  Yet the executive director of California’s most influential homosexual activist organization is trying to make the case that records of communications from and to his group should be out of bounds.

Equality California Executive Director Geoff Kors argues that, because EQCA “is a nonparty and because it worked to oppose Proposition 8, its internal campaign communications are not relevant and production would be unduly burdensome.” The ACLU is trying to sing the same song, arguing that the documents we seek are “irrelevant and privileged.”  Of course, prior to being mandated to turn over thousands of our own documents, we made almost exactly the same arguments to the court and yet were denied relief!

Magistrate Spero noted in his ruling that “as was the case with the proponents, the documents and communications at issue may shed light on the meaning and impact of the messages that were sent to the voters. Thus, the subpoenaed documents are relevant and must be produced to the extent the documents…contain, refer or relate to arguments for or against Proposition 8.”

But the legal shenanigans of our moneyed opponents continue: EQCA has appealed Magistrate Spero’s ruling to Chief Judge Walker, who has granted a hearing on Kors’ motion.  The hearing is scheduled for Tuesday, March 16.

We will continue to keep you informed about the progress of this issue and how it may affect the scheduling of a date for closing arguments.  In the meantime, please continue to pray for our attorneys and their staff and all who are involved in this epic battle to preserve traditional marriage.

Dear Friends,

You may recall from one of my earlier e-mails that the plaintiffs’ lawyers, in their bid to overturn Prop 8, asserted during the Perry v Schwarzenegger federal trial that homosexuals are “politically powerless.” They tried to make the case that this alleged political disadvantage is so extreme that it must be corrected by providing homosexuals special protection under the United States Constitution.

When our team of able legal experts questioned the plaintiffs’ witnesses on this matter, they were forced to acknowledge that the “gay agenda” has a bevy of esteemed and active elected officials in their stable of support, including both California U.S. Senators, the Speaker of the House of Representatives, the Governor, the current, openly homosexual California Assembly Speaker, several openly homosexual state senators and/or assembly members, the current mayors of California’s largest cities and the state’s Attorney General.

By that measure alone, it is difficult to accept the notion that homosexuals are a politically powerless lot. Let’s not be naïve, the homosexual lobby holds powerful sway over what goes on in the halls of our state Capitol.

Further, last Friday was the final day lawmakers could introduce legislation in the current session. And guess what? California’s largest homosexual advocacy group, Equality California, sponsored three bills to further advance their agenda, one of which would eliminate what they consider a barrier to legalizing same-sex marriage.

Senate Bill 906 was introduced by openly-gay Senator Mark Leno, who has carried the gay lobby’s water since he was elected.  It removes from current law any obligation by clergy to “marry” same-sex partners and prevents their refusal from having any negative implications on a synagogue or church’s tax-exempt status.

While “divorcing” religious marriage from civil marriage, this bill further exemplifies just how cunning the homosexual lobby can be.  In fact, much can be read into Senator Leno’s comment in the Bay Area Reporter when he said religious entities “have no business interfering with the fundamental right of everyone’s access to marriage.”

Equality California may promote this bill as nothing more than a way to clarify the issue for people who are “confused about the difference between civil marriage and religious marriage,” but what they are really after is a way – any way – to invalidate the votes of 7 million Californians who voted to keep marriage between a man and a woman.

Parsing words the way they are with SB 906 is just another clear example of how powerful the homosexual lobby is in exerting its political influence on the rest of society.

On another note, Friday was a big day for our legal team in the Perry v Schwarzenegger case.  After weeks of work following the conclusion of the evidentiary portion of the trial, our team submitted our post-trial briefings to Judge Vaughn Walker.

We appreciate all of your prayers and financial support throughout these trial proceedings. This is just the first step in a long legal battle to preserve traditional marriage. We are now waiting for Judge Vaughn Walker to announce the date for closing arguments and we will have much work to do for that step in the journey as well. We ask for your continued support through both prayer and financial sacrifice during this time as we move closer toward the completion of the district court trial and then on to the Ninth Circuit Court of Appeals.

We will keep you informed as we learn more from Judge Walker.

In public, the leaders of the same-sex marriage movement portray themselves as tolerant and loving, seeking only to access marriage as a way of validating their “loving and committed relationships.” In court, they claim to be politically powerless, requiring judicial intervention to overturn our state constitutional provision defining marriage as between one man and one woman, thus forcing homosexual marriages onto society. However, outside of court they are anything but powerless or tolerant. Two recent examples illustrate this.

In Oakland, Mayor Ron Dellums re-nominated Lorenzo Hoopes to continue to serve on the board of directors of the nonprofit Paramount Theatre of the Arts, where Hoopes serves as president. At 96 years of age, Hoopes is a revered figure in the Oakland community and has been credited with helping save the Paramount from bankruptcy and the wrecking ball. He was a top executive with Safeway, served on the local school board and also was a local leader of the LDS church, where he helped lead numerous charitable and community improvement projects. None of this matters, however, to those who oppose Proposition 8, because Hoopes donated funds to support its passage. As far as they are concerned, his perspective on marriage and support of Prop 8 makes him ineligible for community service and should subject him to protest and public ridicule. “It’s so insulting,” one homosexual rights leader told the Oakland Tribune about the re-nomination of Hoopes. “Outrageous,” said another. Homosexual activists immediately began to organize, including forming a Facebook group to coordinate their efforts to derail the continued service of this venerable community volunteer. And they succeeded when Mayor Dellums withdrew the nomination before it came to a vote.

Aggressive protests like the one aimed at a 96-year-old community volunteer are, unfortunately, all too representative of the type of intimidation and harassment that has consistently been demonstrated by the homosexual marriage movement during and since the Proposition 8 campaign. In fact, the examples of harassment are so extensive and have become so well documented (they were chronicled in this report by The Heritage Foundation) that they have begun to be mentioned by various commentators, experts and courts, including the United States Supreme Court.

When the backers of Washington state’s Referendum 71 turned in their petition signatures last year, they sought protection in federal court from having to reveal the identity of those who had signed the petitions, fearing that they would be subjected to harassment by pro-homosexual activists. They cited the extensive harassment of supporters of Prop 8, in addition to documented harassment of Referendum 71 backers, and in an 8-1 ruling secured an order from the United States Supreme Court protecting the privacy of the petition signers until the court hears the matter. In our own Perry v Schwarzenegger case, the US Supreme Court’s ruling preventing the broadcast of the trial was based, in part, on the extensive record of harassment of Prop 8 supporters. Of course, the issue of harassment toward those who participate in the political process is not limited to same-sex marriage cases. In their recently decided case Citizens United v Federal Election Commission, the court said that forcing the disclosure of the names of campaign contributors, “would be unconstitutional as applied to an organization if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed.”

ProtectMarriage.com is also involved in a lawsuit concerning disclosure of initiative backers, ProtectMarriage.com v Bowen. This case, brought following the passage of Proposition 8, seeks to protect the identity of initiative contributors and is currently pending in the federal courts. When an initial request for a preliminary injunction was denied, ProtectMarriage.com fully disclosed all information as required by law. However, the case remains pending and is being undertaken by the able legal representation of the Alliance Defense Fund.

The issue of public disclosure was the subject of a February 6th opinion column in the Sacramento Bee, authored by California Fair Political Practices Commissioner Ronald Rotunda. Mr. Rotunda noted the inherent tension between disclosure laws and privacy rights and, speaking purely from a personal point of view and not in his capacity as a Commissioner, opined that the First Amendment may trump disclosure laws in an initiative campaign. He said the First Amendment, “prevents the government from aiding those who disagree in a most disagreeable way.”

The response from homosexual marriage radicals like Equality California was swift and, well, radical. Like those who demand the scalp of a 96-year-old community volunteer in Oakland, Equality California has demanded that Rotunda be removed from the Fair Political Practices Commission (FPPC). On February 11th they demanded that California’s governor and legislature immediately begin impeachment proceedings against the commissioner. Equality California also falsely claimed that the FPPC will be asked to decide if Protectmarriage.com has failed to disclose its contributors, which we have already done.

Perhaps Equality California hasn’t gotten the memo from the plaintiff attorneys in the Perry case, that homosexuals are politically powerless. The impeachment threat against Commissioner Rotunda is no idle one. It is an exercise in raw political power by one of the most powerful special interest groups in the entire state. They know that they have the political strength and reliable legislative allies to make this a very viable threat against a dedicated public servant.

This is what we are fighting, and why we continue our multi-pronged effort to preserve marriage in California. Not only have we had to wage epic initiative and court battles, we must also battle our radical opponents in the legislature and court of public opinion, where with a straight face and a sympathetic media, the intolerant demand tolerance, and the powerful feign powerlessness.

Please help us continue our fight. We need your prayers, activism and continued financial support.

Sincerely,

Ron Prentice, Executive Director

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.