Prop 8 Trial Starts Today
January 11 2010 9:40 AM EST
November 17 2015 5:28 AM EST
Update 12:57 am - Opening statements have concluded, testimony is underway and plaintiff Paul Katami prepares to be cross-examined after lunch in what as proven to be an emotional morning in court.
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Attorneys in an unprecedented federal suit challenging California's Proposition 8, filed in May, finally have their day in court, with former U.S. solicitor general Ted Olson scheduled delivering opening statements in San Francisco this morning.
Following opening remarks, the plaintiffs -- Kristin Perry and Sandra Stier of Berkeley and Paul Katami and Jeffrey Zarrillo of Burbank, who were denied marriage licenses by the state -- will be examined by cocounsel David Boies, the attorney who argued Bush v. Gore against Olson in 2000. Boies is also expected to be the lead cross-examiner in the trial.
Both attorneys spent the final day preparing for the suit in the San Francisco offices of Olson's firm, Gibson Dunn & Crutcher.
"The whole world is going to hear these four plaintiffs' story," said Chad Griffin, cofounder of the American Foundation for Equal Rights, which organized and funded the suit, Perry v. Schwarzenegger. "And I think when this court and the rest of the country hears their story it's going to be really difficult to look them in the eye you shouldn't have the same rights as every other American."
Aided by attorneys for the city of San Francisco, Olson and Boies will be calling a range of experts on marriage and the history of discrimination against gays and lesbians in the bench trial, which is expected to last two weeks and may ultimately end up before the U.S. Supreme Court. Expected witnesses include M.V. Lee Badgett, a professor of economics at the University of Massachusetts-Amherst, who will testify about the societal impact of same-sex marriage; George Chauncey, a Yale history professor who will illustrate the history of discrimination against gays and lesbians; and Ryan Kendall, a gay man who went through so-called conversion therapy by an "ex-gay" group.
U.S. district judge Vaughn Walker has called for the proceedings to be videotaped and delay-broadcasted on YouTube. The attorneys defending Prop. 8 have vigorously opposed televising the trial, arguing that anti-marriage-equality witnesses could be subjected to harassment. The defendants have appealed Walker's ruling to the U.S. Supreme Court. Justice Anthony M. Kennedy is expected to rule on the matter today.
Olson and Boies will argue that Prop. 8 is a violation of equal protection and due process clauses of the Fourteenth Amendment to the U.S. Constitution and that gay couples' right to marry has no ill effect on the institution of marriage.
U.S. Supreme Court case law cited in their pre-trial brief includes Loving v. Virginia, which struck down state laws prohibiting interracial marriage; Turner v. Safley, which held that prisoners have the right to marry; and Lawrence v. Texas, which invalidated sodomy laws, overruling a previous high court decision in Bowers v. Hardwick.
The brief also employs an earlier gaffe made by pro-Prop. 8 attorneys as ammunition. During an October hearing, Judge Walker asked attorney Charles J. Cooper what societal harm would result in allowing gay and lesbian couples to marry.
"Your honor, my answer is: I don't know," Cooper replied. "I don't know."
Cooper and his team will argue that marriage rights for same-sex couples would irrevocably damage the institution of marriage and that discrimination against gays and lesbians is overblown.
But marriage equality proponents say the only way Cooper can't see antigay discrimination is if he isn't looking for it. "If you close your eyes, you don't see it," said Therese Stewart, San Francisco chief deputy city attorney. "If you don't know gay people and you don't care, you don't see it. Even if you're the perpetrator of it sometimes."