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.
