Proposition 8 Trial Summaries

The Proposition 8 trial wrapped up this week and summaries (of sorts) have been issued by both sides. The American Foundation for Equal Rights, the organization challenging the constitutionality of Proposition 8 in Federal court, prepared their summary of the trial, where 17 witnesses were presented by the paintiffs, nine of which were "eminent experts . . . including professors from Yale, Harvard, Stanford, Columbia, Cambridge, and UCLA who are recognized internationally as leading scholars in history, economics, psychology, sociomedical science, political science, and more." Here is the outline of the plaintiff's case:

Prop. 8 does irreparable harm to Americans
• Stigma and Discrimination (Testimony of GREGORY HEREK, Ph.D., Professor of Psychology at the University of California at Davis and ILAN H. MEYER, Ph.D., Associate Professor of Clinical Sociomedical Sciences at Columbia University’s Mailman School of Public Health)
• Economic Harm (Testimony of M.V. LEE BADGETT, Ph.D., a Professor of Economics at the University of Massachusetts, Amherst and EDMUND EGAN, Ph.D., Chief Economist for the City and County of San Francisco)
• No Substitute for Marriage (Testimony of NANCY COTT, Ph.D., the Jonathan Trumbull Professor of American History at Harvard University and LETITIA ANNE PEPLAU, Ph.D. Professor of Psychology at the University of California, Los Angeles)

Marriage has shed discriminatory restrictions over time
• (Dr. Cott testifies about the history of marriage in the U.S.)

Gay men and lesbians are entitled to the full protection of the 14th Amendment
• History of Discrimination is Ongoing and Includes Prop. 8 (History Professor GEORGE CHAUNCEY, Ph.D., testifies)
• Gay Men and Lesbians Remain Politically Vulnerable (GARY M. SEGURA, Ph.D., Professor of American Politics in the Department of Political Science at Stanford University, testifies)

There is no good reason for Prop. 8’s denial of fundamental civil rights
• Procreation Not Defining Purpose of Marriage (Dr. Cott further testifies about marriage
• Equal Rights Will Not Harm Others (LETITIA ANNE PEPLAU, Ph.D. Professor of Psychology at the University of California, Los Angeles and MICHAEL LAMB, Ph.D., a Professor and Head of the Department of Social and Developmental Psychology at Cambridge University testify about child raising)

Here is video from their Jan. 27 news conference (courtesy the New York Times):



Andy Pugno, General Counsel for the Defense of Prop 8, remarks:

What may be lost in all the sensationalism of the past two and a half weeks of trial is that the burden of proof to invalidate Prop 8 lies squarely with the plaintiffs. They cannot win unless they prove that the voters were “irrational” when they chose to preserve the traditional definition of marriage in our state. Contrary to their public relations claims, the outcome of this case does not depend on whether the Prop 8 sponsors can prove that homosexual marriage will harm traditional marriage. The controlling legal issue is not whether homosexual marriage is good or bad, but rather whether the people have the right to decide what is best. The plaintiffs simply did not carry that burden.

If, by declaring that plaintiffs must establish "irrational" intent of the voters, he is referring to "Rational Basis Review," the lowest level of judicial scrutiny, then he is probably correct, as we have observed in marriage cases in other states (New York, for example); the defense need only show any governmental interest, however related, to justify a statute. Boise and Olson, however, have made a strong case that the situation involves a suspect class being denied a fundamental right, and that would typically require a higher level of scrutiny and a more "compelling" governmental interest in order to justify Proposition 8.

It will be several weeks before closing arguments will be presented to Judge Walker.