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Prop 8 Trial, Week 3, Day 2: How Civil Unions Are Gay Jim Crow Laws

by Roger Brigham
EDGE Media Network Contributor
Wednesday Jan 27, 2010

Should a federal court override a popular referendum when it tramples on the rights of a minority? That's the central question being debated in the San Francisco courtroom of Judge Vaughn Walker.

The reason why the case against Proposition 8 has taken on such historic proportions go beyond the contentious issue of gay marriage. Constitutional scholars are looking at the way the dream team of David Boies and Ted Olson is presenting evidence to strike down the referendum because they believe the arguments will ultimately be repeated before the nine justices of the U.S. Supreme Court.

That decision will certainly have historic dimensions, rivaling Dred Scott, which legalized the return of captured slaves and became a cause of the Civil War; and Brown v. Board of Ed, which overturned Jim Crow laws and institutionalized the civil rights struggle.

On Tuesday, Jan. 27, an expert witness defending California's same-sex marriage ban testified that federal courts should, in fact, override a referendum that violates the rights of a minority. Proposition 8 might be an example of the popular will that nevertheless violates "well grounded Constitutional principles."

Another witness for the defense, however, characterized the quest for marriage equality as the latest round in a decades-long assault on the institution of marriage.

The proceedings were disrupted for a moment Tuesday morning when a man brushed past security guards to take a seat, then started reaching over the railing to attorneys. He was escorted from the room while brandishing a paper and yelling, "Let no man put asunder."

Claremont McKenna College professor Kenneth Miller's examination and cross-examination dominated the morning session. On Monday, Miller had cited religious groups, academic and professional associations, labor unions and the Democratic Party as being "allies" of the LGBT community supporting the unsuccessful campaign to defeat Prop 8.

Plaintiffs' attorney Kenneth Boies got Miller to concede that the "gay friendly" religious organizations in California he identified constituted just 1.5 million people. But 18 million people (or half the state's population) identify either with the Catholic Church or evangelicals.

The witness finally admitted that those institutions provided enormous structural support for the Yes on 8 campaign. "I think it's fair to say based on a number of polls and post election that those who attend religious services are more likely to have voted for Proposition 8," Miller reluctantly agreed. "In my opinion, there was a larger contribution from religious organizations supporting the Yes on 8 campaign than there were the No on 8 campaign."

Miller was examined about an article he had published in a French journalist year titled "The Democratic Coalition‚ Religious Divide: Why California Voters Supported Obama but Not Same-sex Marriage." In that article, he had dealt with the split among Democratic voters on Prop 8 despite a recent history of stronger support of gay rights.

"The apparent contradiction can be explained by examining the religious characteristics of California Democratic voters," he wrote. The Prop 8 opponents "lost in large part because the state's Democratic coalition divided along largely religious lines."

He was then asked about another sentence he had written: "The opportunity to establish marriage for gay and lesbians in California was lost in large part because the state's Democratic coalition divided along religious lines." Miller said he believed that sentence was "substantially correct."

Repeatedly Miller would respond to questions from Boies with lengthy hesitations or non-responsive sidetracks. At one point, Chief Judge Vaughn Walker chided him.

Side issues would not be necessary if he would answer the questions presented, Walker said. Boies repeatedly prompted him with, "Just say yes, no, or I don't know."

The cross examinations of plaintiffs' witnesses had taken several hours. Defense attorney David Thompson asked Walker for a break by observing that Walker had been cross examined for a few hours already. "There's something about pots and kettles talking about long cross examinations....," Walker quipped.

Miller discussed of the initiative process and the role the judiciary plays. "I think there's a difference between protecting rights and expanding rights," Miller explained.

"At the time that Proposition 8 was passed, gays and rights had the right to marry, yes?" Boies asked.

Miller hesitated for a while. "Yes or no. Or you don't know. Yes, no, or I don't know."

"The court had issued a decision," Miller finally replied. "Yes, they had the right. The court through that decision had created a right."

Boies then immediately asked him about the 1954 Supreme Court decision Brown v. Board of Education, which discarded the argument that facilities could be separate but equal. Those who argue that domestic partnerships offer gays and lesbians a parallel and equal government recognition to marriage use the same concept.

"Did Brown v. Board of Education protect or expand rights as you use those terms?" Boies asked.

"Protecting," Walker admitted.

Walker also had to explain his opinion in a conference paper. He wrote that violations of minority rights occur more frequently in majoritarian actions such as voter initiatives. When that happens, the courts are the first and last resort to check those abuses, he added.

Walker countered himself by saying in court that he had formed a more favorable opinion of the initiative process in recent years. He now sees its strength as a check on judicial activism.

"I decided that marriage was a different situation," Walker said. "The people should have the opportunity to have input on the issue of marriage."

He also said he no longer thought of gays and lesbians as a vulnerable minority requiring judicial protection.

At the end of the questioning, Walker asker Miller, "When is it appropriate for the judiciary to step into the intuitive process?"

"When it violates the federal Constitution," Miller said. "That's ultimately for the courts to decide."

David Blankenhorn, author of "Fatherless America" and "The Future of Marriage," followed Miller to the stand. The plaintiffs did not challenge him as a witness on fatherhood and families. But they did challenge his expertise on the effects of same-sex marriages on family structures.

Walker said he wold probably not have admitted Blankenhorn to testify as an expert in a jury trial. But a bench trial allowed him the opportunity to hear the testimony and weigh it as he saw fit.

Blankenhorn testified that historically societies have seen marriages as a "natural institution" existing for the protection of children to be raised by their biological parents. In recent years, however, marriage has become more "deinstitutionalized" with an emphasis shifting to the private, adult agreement between the spouses.

He said it has always evolved around a state sanctioned and encouraged sexual relationship between a man and a woman.

"The core need that marriage aims to meet is the child's need to be emotionally, morally, practically and legally affiliated with the woman and the man whose sexual union brought the child into the world," Blankenhorn testified.

"This is not all that marriage is or does," he added. "But nearly everywhere on the planet, this is fundamentally what marriage is and does. The fact that it exists almost nearly everywhere suggests just how important the need must be."

He said marriage preceded any religious connection. He does not believe homophobia led people to believe in a "one man-one woman" definition of marriage.

"I am not able to find any evidence that animus toward homosexual persons was a central component," he said. ""If such evidence exists, I want to know it. I looked for it and I did not find it."

The deinstitutionalization of marriage is evident through increased childbirth outside wedlock and higher divorce rates. "The issue of same-sex marriage is in the mind of many scholars another manifestation of the deinstitutionalization of marriage," he said. "The deinstitutionalization of marriage would be accelerated further by the adoption of same sex marriage."

He also said people who suggested allowing same-sex marriage would increase the push for polygamy were correct. "If you weaken one of the two pillars," he said, "you weaken the other."

Roger Brigham, a freelance writer and communications consultant, is the San Francisco Editor of EDGE. He lives in Oakland with his husband, Eduardo.


  • Michele Briere, 2010-01-27 10:46:40

    Roger, I wanted to congratulate you on an article well-written. It’s been a long time since I read a news article that was written the way a reporter is supposed to present information. Unbiased, just the facts. I guess Fox won’t be hiring you any time soon.

  • BB, 2010-01-27 10:54:32

    Still the homosexual agenda continues to try and coopt the Civil Rights struggle and continues to look pathetic in the attempt. A decision affecting the return of a FUGITIVE SLAVE is light years in importance beyond whether or not a homosexual couple can apply for survivor Social Security benefits. Does the community remember being trounced by 70% of the black community in the election regarding Prop 8? Just keep up with the pretense that this comparatively minor league issue is on a par with an entire race being enslaved for 400 years. It is the disproportionate whining and histrionicsw of an otherwise privileged, by and large white and upper middle class minority that turns most people right off of "gay marriage" and all of its hyperbolic rhetoric.

  • , 2010-01-27 13:09:12

    Mr. Brigham kindly check that you correctly noted which parties were asked questions and by whom as well as who answered the questions. There are several spots in this article that seem to indicate that Walker (the judge) was answering questions asked by Bois (Plaintiff’s attorney), rather than being answered by the witness, Miller. Is this accurate?

  • PolishBear, 2010-01-27 14:07:52

    The law is NOT being changed as it applies to Straight (i.e. heterosexual) couples. Nothing is changing for them. Nothing is happening to "traditional marriage." Most people are Straight, and they will continue to date, get engaged, marry and build lives and families together as they always have. None of that will change by allowing Gay couples to do the same. This is really not any sort of a "sea change" for marriage, since the only difference between Gay and Straight couples is the the gender of the two persons in the relationship. What the supporters of Prop. 8 need to ask themselves is, WHY should law-abiding, taxpaying Gay couples be forced to subsidize all the legal benefits, protections, and responsibilities that married couples have always taken for granted, when we cannot take part in those same incentives to marry? And since when voters get to decide that the legal rights they enjoy should NOT be enjoyed by minorities?

  • BB, 2010-01-27 16:57:56

    Polish Bear! Excellent question, which leads me to the next: why should single people support any of your bastards gay or straight. We have to pay property taxes for your damned schools, watch you get preferential treatment (well, you will if you force gay marriage on the nation), etc. I think us single people should revolt against all of you spoiled brats with your civil unions and marriages. Screw all of you! :)

  • , 2010-01-28 00:11:05

    Again, why should there still be a commotion or hearing, TWICE voters voted to keep the CHOICE of marriage (not right) to be left according to the definition of MARRIAGE between man & woman, allow those with such beliefs who voted twice to keep it sacred & from its Biblical roots & allow all the "rights" that go with it to the gay/lesbian couples.

  • synergi, 2010-01-28 08:20:34

    This article actually confuses witness Miller with Judge Walker at several points. Sloppy writing, and absent editing.

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