Prop 8 Trial Gets Heated: Are We Winning Yet?

If day one of the trial challenging Proposition 8 was all about setting the tone, yesterday was all about drawing the battle lines.

In reading through the liveblogs at FireDogLake and the Prop 8 Trial Tracker, it didn't seem as resounding a demolition for our side as day one did--but the equality side still seemed to win the day through superior organization and logic, if not through the gripping emotional detail of the testimony.

In a trial, each side has but two objectives: 1) to prove its case; and 2) to refute the case of the opposition. Olson and Boies have constructed their opening days of testimony around exactly this idea. Yesterday's testimony by the plaintiffs about the discrimination they have suffered by not being married was designed specifically to prove that their being banned from doing so violates the equal protection clause of the 14th Amendment. Today's testimony was dedicated to achieving the second objective.

The Defendant-Intervenor (proper legalese for the pro-bigotry side) argued in its opening Monday that, because marriage between a man and woman was an immutable and traditional societal institution designed specifically for the procreation and protection of children, it was not a violation of the 14th amendment to prevent homosexual couples from marrying--and that allowing those couples to marry would annihilate the purpose of marriage and destabilize society.

The plaintiffs sought to not only refute these arguments regarding this case specifically, but also to demonstrate that expansion of both marriage rights and gay rights have been on an expanding and converging course in the United States--and that those opposed to those expansions which are now deemed guaranteed by the Constitution have used the exact same arguments as the Defendant-Intervenor is using in this case. To do this, plaintiff's counsel continued--in an extension of yesterday's proceedings--the examination of expert witness on marriage, Professor Cott. Here, "B" stands for Boies, lead co-counsel for the plaintiff:

B: Good morning, Professor Cott. I have conferred with defendant-intervenor’s attorney regarding exhibits and they have objection (presents list to clerk) I would like to present another statemtn from the opposing counsel’s opening statement, wrt its central purpose being procreation and channelling, naturally procreative sexual activity between men and women into stable enduring unions.

B: What is your opinion?

C: Procreation is A purpose but no means the central purpose. Reminded me of the story of the seven blind men and the elephant: each sees something different, trunk/snake; side/wall; tail/vine. Procreation in a stable union is A purpose, but from the STATE’s perpective marriage has more to do with establishing a HOUSEHOLD and all that implies about social order and governance.

B: How is marriage an instrument of goverrnance?

C: Historically, I mean the regulatory purpose of marriage. Men were heads of household, responsible economically for all parts of their household. Giving benefits implied the sovereign could politically govern his realm in discrete sub-units, HOUSEHOLDS.

B: From a historical perspective, what benefits have accrued, and have they only accrued to procreative marriages?

C: No, barrenness or sterility has never been a barrier to a marriage. The FATHER of our country, George Washington, was sterile, being in a marriage with a woman who had borne children in her previous marriage. This was actually seen as an ADVANTAGE, since he could not pass on his presidency to an heir.

Now, as can be gleaned from yesterday's coverage, defense counsel had argued previously that while the rights of marriage had indeed been continually expanded to people of different races and socioeconomic classes--and that it was wrong to have forbidden it in the first place--the one immutable aspect was that marriage was always between a man and a woman in the legal tradition of the United States. The legal counterargument by Professor Cott is worth a read--with many thanks to Teddy Partridge at FDL for his tireless notes: