Monday, January 18, 2010

Prop 8 Trial First Week Roundup

The American Foundation for Equal Rights, the group behind the federal challenge to Prop 8, issued the following roundup of the first week of trial.Ten witnesses, including Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo and five eminent experts, clearly and convincingly demonstrated critical points in the federal trial on the unconstitutionality of Prop. 8 during its opening week:

• Marriage is vitally important in American society;

• By denying gay men and lesbians the right to marry, Proposition 8 causes grievous harm to the plaintiffs and other gay men and lesbians throughout California, and adds yet another chapter to the long history of discrimination they have suffered;

• Proposition 8 perpetrates irreparable, immeasurable and discriminatory harm for no good reason.


The court also viewed video footage from the deposition of William Tam. Tam is one of the five Official Proponents of Prop. 8, and as such was personally responsible for putting it on the ballot and for intervening in this case to take over the defense of the initiative.

The video footage of his deposition included statements from Tam such as this one, from a pro-Prop. 8 email he wrote: “They lose no time in pushing the gay agenda — after legalizing same-sex marriage, they want to legalize prostitution. What will be next? On their agenda list is: legalize having sex with children.”

Please see this link for additional quotes and details.


The backers of Prop. 8 told the court this week that they were dropping four witnesses from their witness list, leaving only two. They claimed this was due to a reluctance to testify because of cameras in the courtroom. The trial, however, is not being broadcast. Attorneys for the plaintiffs note that their depositions of the withdrawn experts, which would form the basis for their cross-examinations, resulted in the experts making admissions that disagreed with the backers of Prop. 8’s case, which is what actually led to the last-minute witness list reduction.

Plaintiffs’ attorneys this week introduced video of the deposition of Loren Marks of Louisiana State University, who had been expected to testify for the defendants that the ideal family structure is for children to be raised by two married “biological” parents, which Marks said meant the genetic parents.

Marks admitted that he only read parts of the studies he relied upon in making his conclusion. It was then pointed out that those studies actually defined “biological” parents in a way that included adoptive parents — not just genetic parents. Marks then stated that the word “biological” should be deleted from the report he prepared for this case, and also admitted he considered no research on gay and lesbian parents, effectively revealing his research as fatally flawed.

[UTF adds this ABC video report]


The trial began with an emotional and compelling opening statement by Theodore Olson, who with David Boies is leading the legal team assembled by the American Foundation for Equal Rights to litigate Perry v. Schwarzenegger. Olson and Boies notably faced off in the 2000 Bush v. Gore case that decided the presidency.

“This case is about marriage and equality,” Olson said. “Plaintiffs are being denied both the right to marry, and the right to equality under the law. The Supreme Court of the United States has repeatedly described the right to marriage as ‘one of the vital personal rights essential to the orderly pursuit of happiness by free men;’ a ‘basic civil right;’ a component of the constitutional rights to liberty, privacy, association, and intimate choice; an expression of emotional support and public commitment; the exercise of spiritual unity; and a fulfillment of one’s self.”

Olson’s full opening statement can be found here.


The court then heard powerful testimony from plaintiffs Zarrillo, Katami, Perry and Stier, who comprise two couples who want to get married but cannot because of Prop. 8.

Boies conducted the direct examination of Zarrillo and Katami.

“The word ‘marriage’ has a special meaning. …If it wasn’t so important, we wouldn’t be here today,” said Zarrillo. “I want to be able to share the joy and the happiness that my parents felt, my brother felt, my friends, my co-workers, my neighbors, of having the opportunity to be married. It’s the logical next step for us.”

Zarrillo continued, “When someone is married, and whether it’s an introduction with a stranger, whether it’s someone noticing my ring, or something of that nature, it says to them these individuals are serious; these individuals are committed to one another; they have taken that step to be involved in a relationship that one hopes lasts the rest of their life.”

“When you find someone who is not only your best friend but your best advocate and supporter in life, it’s a natural next step for me to want to be married to that person,” said Katami. “I can safely say that if I were married to Jeff, I know that the struggle that we have validating ourselves to other people would be diminished and potentially eradicated.”

Katami continued, “I just want to get married…it’s as simple as that. I love someone. I want to get married. My state is supposed to protect me. It’s not supposed to discriminate against me.”

Olson conducted the direct examination of Perry and Stier.

“I want to marry Sandy. I want to have a stable and secure relationship with her that then we can include our children in,” Perry said. “And I want the discrimination we are feeling with Proposition 8 to end and for a more positive, joyful part of our lives to be begin.”

Perry and Stier have four children.

“Certainly nothing about domestic partnership as an institution — not even an institution, but as a legal agreement — indicates the love and commitment that are inherent in marriage, and it doesn’t have anything to do for us with the nature of our relationship and the type of enduring relationship we want it to be. It’s just a legal document,” Stier said.

“I’m just trying to get the rights that the Constitution already says I have,” she added.

The plaintiffs’ testimony was followed by testimony from eminent experts who demonstrated the history and harm of discrimination, the importance of marriage to individuals, and the fact that allowing people to marry harms no one, and in fact would create benefits.


**Nancy F. Cott, Ph.D, the Jonathan Trumbull Professor of American History at Harvard University, testified on the history of marriage.

Dr. Cott challenged statements made by attorney Charles Cooper during his opening statement that procreation is the “central and … defining purpose of marriage.” Cooper represents the backers of Prop. 8.

“I would certainly agree it is one of the purposes, but certainly not the central or the defining purpose,” Dr. Cott said. “It’s a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile.”

**George Chauncey, Ph.D, a professor at Yale University, testified about the history of discrimination experienced by gays and lesbians in the United States. Dr. Chauncey testified that the 2008 campaign to pass Prop. 8 played on stereotypes used historically to portray “homosexuals as perverts who prey on young children, [who] entice straight people into sick behavior.”

After viewing several pro-Prop. 8 television ads and videos, Dr. Chauncey said the language and images suggesting the ballot initiative was needed to “protect children” were reminiscent of efforts to “demonize” gay men and lesbians ranging from police raids to efforts to remove gay and lesbian teachers from public schools.

“You have a pretty strong echo of this idea that simple exposure to gay people and their relationships is somehow going to lead a whole generation of young kids to become gay,” Dr. Chauncey said. “The underlying message here is something about the undesirability of homosexuals, that we don’t want our children to become this way.”

**Dr. Letitia Peplau, a Professor of Psychology at the University of California, Los Angeles, testified that there is no evidence to suggest that marriage equality would harm others.

“It is very hard for me to imagine you would have a happily married couple who would say, ‘Gertrude, we have been married for 30 years, but I think we have to throw in the towel because Adam and Stewart down the block got married,” Dr. Peplau said.

**Edmund Egan, Ph.D. Chief Economist for the City and County of San Francisco, testified that Proposition 8 is a drain on government budgets, and that legalizing same-sex marriage would generate significant revenues and increase personal wealth, and would also reduce the burden on government services from people without health insurance and other benefits.

“It’s clear to me that Proposition 8 has a negative material impact,” Dr. Egan said.

**Ilan H. Meyer, Ph.D., Associate Professor of Clinical Sociomedical Sciences at Columbia University’s Mailman School of Public Health, testified about the stigma and prejudice gay and lesbians individuals face in society, saying that they are meant to feel they are “not equal, not respected by my state, my country, my fellow citizens.”

Dr. Meyer said that domestic partnership is not an adequate substitute for marriage, and said he doubted that society places any value on domestic partnership. “I don’t know if it has any social meaning,” Dr. Meyer said. “I think it is clear that young children do not aspire to become domestic partners. But they may desire to become married.”

**Dr. Michael Lamb, a Professor and Head of the Department of Social and Developmental Psychology at Cambridge University told the court, “We have a substantial body of evidence documenting that a child being raised by same-sex parents are just as likely to be well-adjusted as children raised by heterosexual parents,” Lamb testified.

Dr. Lamb also testified (referring to children of gay and lesbian parents) that: “For a significant number of these children, their adjustment would be promoted were their parents able to get married.”


**Helen Zia was the last witness of the week. She is an Asian American author and a lesbian. She testified about her experiences with discrimination, the effects of being denied the right to marry and the importance of being able to be married in 2008.

“My mother, an immigrant from China, she really doesn’t get what ’partner’ is,” Zia said. “Marriage made it very clear that I was family, that we were family, and I was where I belonged.”


Attorneys defending Prop. 8 cross-examined plaintiff witnesses extensively, sometimes lasting several hours, yet accomplished very little. The witnesses were not shaken from their conclusions, their credentials stand, and very few items were actually allowed into evidence. Against eminent researchers, the cross examining attorneys cited Carrie Prejean, “Will and Grace” and studies from 1954.

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