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

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.