{"id":288470,"date":"2010-02-07T13:43:30","date_gmt":"2010-02-07T18:43:30","guid":{"rendered":"http:\/\/www.sacbee.com\/opinion\/story\/2517291.html#mi_rss=Opinion"},"modified":"2010-02-07T13:43:30","modified_gmt":"2010-02-07T18:43:30","slug":"the-conversation-proposition-8-on-trial","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/288470","title":{"rendered":"The Conversation: Proposition 8 on trial"},"content":{"rendered":"

\n\t<\/a>
\n\t\n\t<\/p><\/blockquote>\n

Should the judge uphold or overturn the ban on marriage for same-sex couples? To comment on this issue, please see our forum<\/a>.<\/i><\/p>\n

The first phase of what will be a long legal battle about the constitutionality of California’s Proposition 8 will soon come to an end. For the past month, a bevy of talented lawyers in a federal district courtroom in San Francisco have argued about whether the U.S. Constitution permits the voters of California to limit the institution of marriage to heterosexuals, while relegating California’s gay and lesbian couples to an alternative regime of “domestic partnerships.” While the California Supreme Court last year upheld the constitutionality of Proposition 8 under its interpretation of state law, the current case, Perry v. Schwarzenegger,<\/i> challenges Proposition 8 under the federal Constitution. <\/p>\n

Republican-appointed federal Judge Vaughn Walker insisted on having a trial, requiring each side to present evidence to support its contention. Previous cases considering whether it was constitutional to exclude same-sex couples from marriage were decided on the basis of the legal arguments made by the respective sides, without trial or live witnesses. <\/p>\n

As a result, over the past few weeks, Walker required the parties to put on testimony to address the question of what, if anything, justifies a heterosexual monopoly on marriage. <\/p>\n

In reviewing the evidence, Walker will be guided by U.S. Supreme Court precedent. Notably, in Romer v. Evans<\/i>, that court struck down an initiative that was handily approved by Colorado voters on the ground that the real basis for the initiative was anti-gay animus. This, the court said, was not a constitutionally acceptable or sufficient justification for singling out lesbian and gay people for differential treatment. <\/p>\n

Thus, one of the core questions presented by the Perry case in California is whether there is any justification for the exclusion of same-sex couples from marriage other than animus. <\/p>\n

The testimony at trial was telling.<\/p>\n

Those arguing that Proposition 8 is unconstitutional went first. Among other things, marriage-equality supporters gave powerful testimony about the ongoing discrimination against gay and lesbian Americans as well as about the harms to lesbian and gay adults and their children caused by Proposition 8. They also presented evidence that the children of lesbian and gay people are just as well adjusted as the children of heterosexual couples. <\/p>\n

The proponents then had their opportunity to explain what, other than animus, justifies the exclusion of lesbian and gay people from the right to marry. To the surprise of many on both sides of the issue, the proponents put on only two witnesses. The first testified, not very convincingly, on a technical issue – the level of political power gays and lesbians purportedly possess. <\/p>\n

The only other witness – the proponents’ star witness David Blank- enhorn – addressed the alleged harms caused by same-sex marriage. As many of us remember, during the months leading up to the vote on Proposition 8, the proponents (the Yes on 8 side) spent large amounts of money – about $40 million dollars – trying to convince the voters that unless Proposition 8 was approved, terrible harms would befall children. For example, the ballot argument in support of Proposition 8 summed up with the line: “Voting YES protects our children.<\/i>” Similarly, one of the campaign’s official advertisements closed with the written message: “Protect Children. Restore Marriage.” <\/p>\n

Blankenhorn, president of the New York-based Institute for American Values, an organization “whose mission is to study and strengthen key American values,” had the opportunity to explain exactly how it is that Proposition 8 protects children, or to offer some other justification for stripping lesbian and gay people of the right to marry.<\/p>\n

In a nutshell, here’s what Blank- enhorn had to say: Marriage, he testified, is being “deinstitutionalized” or weakened. The “manifestations” of this “deinstitutionalization,” Blankenhorn said, are the purported increasing rates of divorce and the greater numbers of children being born outside of marriage. <\/p>\n

Even assuming one agrees that marriage is being “weakened,” the question the court must ask is: What is the relevance of marriage for same-sex couples to this process? Did lesbian and gay people cause marriage to become “deinstitutionalized”?<\/p>\n

It turns out that the answer to that question is “No.” Blankenhorn readily admitted that lesbian and gay people did not cause this process to begin. Rather, Blankenhorn testified, “heterosexuals … did the deinstitutionalizing.” <\/p>\n

So, lesbian and gay people did not initiate or instigate this process but, Blankenhorn asserted, if California permitted same-sex couples to marry they might<\/i> contribute to this deinstitutionalization. <\/p>\n

And what is the evidence of this?<\/p>\n

“It’s impossible to be completely sure about a prediction of future events,” Blankenhorn admitted. But he justified his prediction by stating: “If you change the definition of the thing, it’s hard to imagine how it could have no impact on the thing.” <\/p>\n

At this point, one might ask, what about the children? It turns out that the only specific harms to children that Blankenhorn identified were the harms caused by<\/i> Proposition 8 to the children of lesbian and gay couples. Specifically Blankenhorn testified that excluding same-sex couples from the right to marry “almost certainly” denies benefits to their children. <\/p>\n

In short, given a full and fair opportunity to present any evidence supporting the view that permitting same-sex couples to marry causes harm, the proponents of Proposition 8 were unable to do so. Accordingly, as the Supreme Court concluded in Romer v. Evans<\/i> with regard to Colorado’s initiative, Proposition 8 “seems inexplicable by anything but animus towards the class it affects” and cannot withstand constitutional scrutiny.<\/p>\n

What is the likely outcome of this litigation?<\/p>\n

It’s not easy to predict. But in light of Walker’s insistence on a trial and because the plaintiffs put on such a compelling case, especially compared with the weak one put on by the defense, many predict an initial victory for the plaintiffs.<\/p>\n

Even so, it is not easy to know on what grounds the court will rule or how far-reaching the ultimate decision will be. It would be monumental if the judge issued a sweeping ruling holding that the U.S. Constitution prohibits states from banning gays and lesbians from marrying. More likely, the decision will be decided on narrower grounds, focused on unique circumstances in California. <\/p>\n

The ultimate resolution is many months and possibly years away, as the judge’s opinion will not be rendered until later this year, well after closing arguments in March at the earliest. Whatever the judge rules, the decision will surely be appealed, perhaps all the way to the U.S. Supreme Court.<\/p>\n

\n\t<\/a>
\n\t
\n\tAfter taking the witness stand for the side seeking to overturn Proposition 8, San Diego Mayor Jerry Sanders, left, hugs his daughter Lisa as her wife, Meaghan Yaple, watches after a news conference in San Francisco on Jan. 19.<\/p><\/blockquote>\n

\n\t<\/a>
\n\t
\n\tCourtney G. Joslin<\/p><\/blockquote>\n

\n\t<\/a>
\n\t
\n\tLawrence C. Levine<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Should the judge uphold or overturn the ban on marriage for same-sex couples? To comment on this issue, please see our forum. The first phase of what will be a long legal battle about the constitutionality of California’s Proposition 8 will soon come to an end. For the past month, a bevy of talented lawyers […]<\/p>\n","protected":false},"author":4325,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-288470","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/288470","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4325"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=288470"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/288470\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=288470"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=288470"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=288470"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}