Prop. 8 foes tell court why they see measure as unconstitutional

Same-sex marriage has been practiced in various cultures over time, including among some people in China, India, West Africa and North America. Roman emperors sometimes married men.

These were some of the bits of testimony delivered during the last two weeks at the historic federal trial on the constitutionality of Proposition 8, the California ballot measure that banned same-sex marriage.

Challengers of the 2008 ban concluded testimony Friday after calling multiple witnesses to define homosexuality, marriage and the role religion has played in prejudice.

Testimony came from a Proposition 8 proponent who said he believes same-sex marriage leads to incest, polygamy and sex with children; from professors of psychology, economics and history who said marriage would benefit homosexuals and society; and from lesbians and gay men who testified that they frequently fear for their physical safety and have trouble explaining their relationships to others.

The proponents of Proposition 8 will put on their case beginning Monday.

Attorneys Theodore Olson and David Boies are representing two same-sex couples trying to overturn Proposition 8 on the grounds that it violates federal constitutional guarantees of equal protection and due process. Their strategy has been to show a pattern of discrimination against gays akin to or worse than that suffered by women and African Americans as evidence of the need for strong constitutional protection. They also have sought through their witnesses to show that same-sex marriage harms no one.

Defenders of Proposition 8 contend that sexual orientation, unlike race and gender, can change over time, and that children fare best in relationships with opposite-sex parents. They also have argued with the challengers’ contention that gays and lesbians have little or no political power.

UC Berkeley law professor Joan Hollinger, who supports marriage rights for homosexuals, said she was struck by the lawyers’ “brilliant” preparation of the witnesses.

“I have never seen this level of quality in direct and redirect . . .” said Hollinger, a family law expert who has attended much of the trial. “But that doesn’t necessarily translate into a legal and constitutional victory by any means.”

Indeed, UC Davis law professor Vikram Amar said so far the lawyers have put together a strong evidentiary foundation for judges who were inclined to rule for same-sex marriage to do so, but added that “it is not an analysis that is going to convince anybody who is not already leaning your way.”

Amar also said the plaintiffs did not appear to have proven that Proposition 8 was motivated by animus, which would make the law invalid.

“There didn’t seem to be compelling evidence that the only people who could have voted for this are people who hate gays,” he said.

Chapman University professor John Eastman, who previously urged the California Supreme Court to uphold Proposition 8, said the trial was “trying to prove something that is not relevant to the legal issues at stake.”

“Even having a trial demonstrates a real misunderstanding of Supreme Court precedent,” Eastman said.

Some of the most emotional testimony came from gay and lesbian couples. They testified that domestic partnerships were inferior to marriage and poorly understood. Without marriage, these witnesses said, they lacked universally understood language to convey the nature of their relationships.

Helen Zia, a lesbian author, told the federal court that when she introduced her now-wife as her partner, people would often ask, “ ‘Partner in what business?’ ” When she replied partner in life, she said she would be asked, “ ‘What business is life? Do you mean life insurance?’ ”

When she and her partner eventually were married, their two families became closer and their relationship was better understood, Zia said.

U.S. District Chief Judge Vaughn R. Walker, a Republican appointee with a libertarian bent, is presiding over the trial. He has tried to prod both sides to move more quickly but also has generally allowed in most of the evidence they want to present. Some of the cross-examination has been longer than the direct testimony.

Walker, silver-haired with a baritone voice, angered Proposition 8’s supporters during pretrial hearings by deciding to broadcast the trial on the Internet. The U.S. Supreme Court overturned that decision, but the trial is being live-blogged on the Internet, and transcripts are being posted.

The defenders of Proposition 8 complain that Walker has “consistently” ruled against them.

“Supporters of Prop. 8 are the underdog in this case,” said Andy Pugno, an attorney for the campaign. “We are heavily outgunned in the courtroom. The judge routinely sides with the plaintiffs, both before and during trial. And they were effective at scaring several of our witnesses from testifying.”

Campaign lawyers said several witnesses insisted on being withdrawn for fear of being harassed if their testimony was broadcast. Lawyers for the challengers implied that the witnesses were withdrawn because they made statements harmful to Proposition 8 during their deposition.

The testimony that appeared to most transfix the plaintiffs and other gays and lesbians in the courtroom came from Columbia University professor Ilan H. Meyer, who said discrimination has made gays more vulnerable to mood disorders and suicide. One gay man whispered afterward that he felt he had just spent hours in psychoanalysis.

“A gay couple has to monitor their behavior, such as holding hands, because someone can throw something at them even on a safe street,” Meyer testified. “Concealment,” he added, “may be stressful because you have to work hard on it. If you are lying, you have to work to keep lying. It’s very hard.”

Attorneys for the challengers also have tried to show that sexual orientation is core to an individual and not subject to change. One of the challengers, Sandra B. Stier, previously was married to a man. Olson asked her how she knew she was gay if she had lived with a husband.

“I’ve only been in love once,” she testified, referring to her partner, Kristin M. Perry. “I’m 47. I know.”

UC Davis psychology professor Greg Herek testified that most gays and lesbians do not choose their orientations. “My research shows that people, when asked, say they have experienced no choice or very little choice,” Herek testified.

But lawyers defending Proposition 8 have elicited admissions from Herek and other witnesses that some people who call themselves gay have had sexual experiences with members of the opposite sex and that many people who identify themselves as heterosexual have had sex with their own gender.

Under cross-examination, Herek said most people who call themselves heterosexual have opposite-sex attraction and most people who call themselves gay have same-sex attraction. “But there could be some overlap,” he admitted.

Defenders of Proposition 8 intended to call at least two witnesses. One is expected to testify that gays and lesbians have strong political power and the other to talk about the value of opposite-sex marriage in child rearing.