January 30, 2010

Prop8 arguments end. An argument: Stability and more lasting relationships

Prop 8, Final Session: Both Sides Claim Victory & Receive Judge’s Praise
by Roger Brigham
EDGE San Francisco Editor
Both sides in the federal court challenge to California’s ban on same-sex marriage concluded their cases Wednesday. And-surprise!-both claimed victory. Closing arguments likely will not be made until March at the earliest.

In the San Francisco courtroom on Wednesday morning, the defense’s last witness, author David Blankenhorn, explained how same-sex marriage would "extend a wide range of the natural and practical benefits of marriage to many lesbian and gay couples and their children." Marriage equality would lead to "fewer children growing up in state institutions and more growing up in loving adoptive and foster families."

"A higher proportion of gays and lesbians would choose to enter into committed relationships," he said. That would "contribute to more stability and to longer-lasting relationships for committed same-sex couples."

Even sexual promiscuity would lessen "among lesbians and--perhaps especially--gay men." Most importantly, acceptance of same-sex marriage would "signify greater social acceptance of homosexual love and the worth and validity of same-sex intimate relationships."

Anti-gay prejudice would decline as well as, more specifically, a reduction in anti-gay hate crimes, he said. Fewer gay men and lesbians would marry someone from the opposite sex, "and thus would likely reduce instances of marital unhappiness and divorce."

In addition, Blankhorn praised gay marriage as a "victory for the worthy ideas of tolerance and inclusion." It would decrease prejudice in society in general against otherness--or, as he put it, "the number of those in society who tend to be viewed warily as ’other’ and increase the number who are accepted as part of ’us.’"

In that respect, he concluded, "gay marriage would be a victory for, and another key expansion of, the American idea."

Proposition 8 proponent Andrew Pugno countered that the burden of proof was on the challengers. Here’s all the defenders of the voter initiative that stripped away the state’s short-lived marriage equality from the California constitution had to do: Simply show that the best situation for children to grow up in was in homes with both biological parents. And the ’one man, one woman’ definition of marriage is the only institutionalized relationship that provided that.

"Believe it or not, that’s our whole case," Pugno said at the close of the morning session in San Francisco. "Other issues, such as the damage caused to gays and lesbians, Pugno said, are "political issues for society to decide."

The challengers presented evidence in direct and cross examination to fill in the vacuum in which the Prop 8 proponents would have it examined and to rebut their assertions about marriage.

"The most remarkable thing about this case was the unanimity of the witnesses on both sides," David Boies, the defense attorney who cross examined both of the defenders witnesses said, "although it didn’t start out that way."

He praised "witness after witness after witness of the highest experts in the land," who "told the story of how Proposition 8 damages gay men, damages lesbians, and damages children."

The Prop 8 challengers maintained that they had managed to get witnesses for both sides to testify on the benefits of same-sex marriage. For example, they seemed to be pretty unanimous that it would decrease divorce rates overall.

Nor did it threaten heterosexual marriages in any way. And it benefitted the children raised by gay and lesbian couples. A ban, on the other hand, hurt gays and lesbians.

It was impossible, Boies argued, to believe that Prop. 8 was not fueled at least in part by prejudice. If the initiative had not been on the ballot in 2008, gay and lesbian couples would have marriage equality today.

Boies and Theodore Olsen led the legal challenge. They made an odd couple--the most prominent adversaries in the 2004 case Bush v. Gore before the Supreme Court that decided the presidential election.

"I have been fortunate to be involved in a number of important cases," Boies said. "This one rates right there at the top. It involve the most basic civil right for a portion of the population that has suffered discrimination for centuries,"

Chief Judge Vaughn Walker called it "a fascinating case extremely well presented on both sides. I’ve been particularly struck by especially many of the younger attorneys in this case." He then took the time to walk around and shake hands with each of the attorneys before leaving the courtroom.

Amicus parties have one week to ask for permission to file amicus briefs, which will be restricted to 15 pages. The opposing sides have until Feb. 26 to file their summaries, at which time Judge Walker will schedule their closing arguments, probably March at the earliest.

Roger Brigham, a freelance writer and communications consultant, is the San Francisco Editor of EDGE. He lives in Oakland with his husband, Eduardo.

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