Wednesday Recap Federal Prop 8 Trial

Throughout the past 12 days of the Proposition 8 trial, attorneys on behalf of two California gay couples have argued from nearly every conceivable angle that marriage is a fundamental right, one that gays and lesbians are denied for no legitimate reason -- with them suffering substantially harmed as a result.

As testimony in the trial concluded on Wednesday at noon, Chad Griffin, cofounder of the American Foundation for Equal Rights and chief organizer of the suit, was adamant that the case had been made. "I'd like to thank [plaintiffs] Kristin [Perry], Sandy [Stier], Jeff [Zarrillo], and Paul [Katami] for standing up for their civil rights and for the rights of thousands like them."

He added a parting jab during a press conference after the court session: "I'd like to thank our attorneys for making our case and for demolishing their case."

Whether Griffin's assessment or Prop. 8 proponents' arguments that the government has a vested interest in preserving marriage as is currently defined prevails won't be decided at the federal district level for some time, however. Judge Vaughn Walker has given both sides one month to enter any additional supporting documents. Plaintiff's attorney Ted Boutrous said he believed closing arguments in the case will likely take place in March at the earliest. David Boies, the co-lead attorney who filed the suit alongside Theodore B. Olson, solicitor general in the George W. Bush administration, previously stated he believes the case could be before the U.S. Supreme Court by the fall of 2011.

During the final day of testimony, Boies continued his cross-examination of defendant expert witness and Institute for American Values president David Blankenhorn, one that led to heated exchanges when Boies questioned the scholarly evidence behind Blankenhorn's assertions. When cornered, Blankenhorn often adopted a folksy, personal brand of response, rather than that of an expert witness. "I may sound simplistic," he said during testimony on Tuesday, "but I believe we lose something precious if ... traditional marriage is lost."

In his "three rules" of historical marriage, Blankenhorn had previously written that marriage is a union between a man and a woman, that marriage comprises two people, and that a sexual relationship must exist. Boies attempted to systemically dismantle all three assertions, asking the witness about historical acceptance of gay relationships in some cultures, about the existence of polygamy in societies, and the marriage rights of people who do not or cannot have sexual intercourse (namely, the incarcerated: The U.S. Supreme Court in 1987 ruled that prisoners have the right to marry).

"The institution of marriage is constantly evolving, always changing, correct?" Boies asked.

Blankenhorn replied, "Yes, I wrote those words in my book."

Prone to evasive answers about the empirical data to back up his assertions, Blankenhorn was often stopped by a frustrated Boies, who asked for one of three responses: "'Yes.' 'No.' 'Or I don't know.'"

"We're back to where we were yesterday," Blankenhorn said in response to one question. "It does not permit a yes or no answer. I'd give a lot if I could have 15 seconds to answer the question."

Boies looked at his watch and said, "Go."

Boies also asked Blankenhorn to read a list of arguments in favor of same-sex marriage that he agrees with. Blankenhorn responded that he did believe marriage rights would lead to greater stability in gays relationship, better financial security, and a reduction in antigay hate crimes.

Andrew Pugno, an attorney for ProtectMarriage.com, said many of those benefits, while laudable, had no bearing on the case. "Whether gays and lesbians are better off, more wealthy, have better self-esteem -- those are political arguments for society to decide," he said. "What has been lost in this case is that the burden of proof is not on the defendants, but on the plaintiffs. ... This comes down to what is best for the child: having a mother and a father. That's the defense. If we can show that, then I think we've prevailed."

Asked about the personal significance of Perry v. Schwarzenegger among other high-profile cases in his career, Boies responded to The Advocate, "It ranks high. I've been fortunate to have a number of cases that are important. But this is right at the top, and I think we're at the cusp of putting this discrimination behind us."