In reading through the liveblogs at FireDogLake and the Prop 8 Trial Tracker, it didn't seem as resounding a demolition for our side as day one did--but the equality side still seemed to win the day through superior organization and logic, if not through the gripping emotional detail of the testimony.
In a trial, each side has but two objectives: 1) to prove its case; and 2) to refute the case of the opposition. Olson and Boies have constructed their opening days of testimony around exactly this idea. Yesterday's testimony by the plaintiffs about the discrimination they have suffered by not being married was designed specifically to prove that their being banned from doing so violates the equal protection clause of the 14th Amendment. Today's testimony was dedicated to achieving the second objective.
The Defendant-Intervenor (proper legalese for the pro-bigotry side) argued in its opening Monday that, because marriage between a man and woman was an immutable and traditional societal institution designed specifically for the procreation and protection of children, it was not a violation of the 14th amendment to prevent homosexual couples from marrying--and that allowing those couples to marry would annihilate the purpose of marriage and destabilize society.
The plaintiffs sought to not only refute these arguments regarding this case specifically, but also to demonstrate that expansion of both marriage rights and gay rights have been on an expanding and converging course in the United States--and that those opposed to those expansions which are now deemed guaranteed by the Constitution have used the exact same arguments as the Defendant-Intervenor is using in this case. To do this, plaintiff's counsel continued--in an extension of yesterday's proceedings--the examination of expert witness on marriage, Professor Cott. Here, "B" stands for Boies, lead co-counsel for the plaintiff:
B: Good morning, Professor Cott. I have conferred with defendant-intervenor’s attorney regarding exhibits and they have objection (presents list to clerk) I would like to present another statemtn from the opposing counsel’s opening statement, wrt its central purpose being procreation and channelling, naturally procreative sexual activity between men and women into stable enduring unions.
B: What is your opinion?
C: Procreation is A purpose but no means the central purpose. Reminded me of the story of the seven blind men and the elephant: each sees something different, trunk/snake; side/wall; tail/vine. Procreation in a stable union is A purpose, but from the STATE’s perpective marriage has more to do with establishing a HOUSEHOLD and all that implies about social order and governance.
B: How is marriage an instrument of goverrnance?
C: Historically, I mean the regulatory purpose of marriage. Men were heads of household, responsible economically for all parts of their household. Giving benefits implied the sovereign could politically govern his realm in discrete sub-units, HOUSEHOLDS.
B: From a historical perspective, what benefits have accrued, and have they only accrued to procreative marriages?
C: No, barrenness or sterility has never been a barrier to a marriage. The FATHER of our country, George Washington, was sterile, being in a marriage with a woman who had borne children in her previous marriage. This was actually seen as an ADVANTAGE, since he could not pass on his presidency to an heir.
Now, as can be gleaned from yesterday's coverage, defense counsel had argued previously that while the rights of marriage had indeed been continually expanded to people of different races and socioeconomic classes--and that it was wrong to have forbidden it in the first place--the one immutable aspect was that marriage was always between a man and a woman in the legal tradition of the United States. The legal counterargument by Professor Cott is worth a read--with many thanks to Teddy Partridge at FDL for his tireless notes:
B: Is rthere a term for the role the state plays in marriage?
C: Yes, it comes from common law, called coverture, describing marital roles and duties. Upon marriage, the wife was COVERED by the husband’s legal definition and economic personhood. Jane Doe became Mrs John Smith; she was really no longer Jane Doe.
B: How did states justify that?
C: this was the MARITAL BARGAIN to which both spouses consented. The husband’s obligation was to SUPPORT his wife and his dependents. Her part was to serve and obey, lend him all her property, give him all her earnings, he would represent her in court. Highly assymetrical bargain, one we see now as very unequal. BUt it was not Dominant/submissive, it was freely consented to by the couple, although THE STATE SET THE TERMS. Assymetricality had everything to do with the sex difference seen in household roles.
Women’s work in the household was extremenly important, by difference might be socially enforced.
b; Did the sexual division of labor explain the sexual difference in marital couples we’ve seen through history?
C: Yes, the sexes were seen as so UNSUITED to the same type of work, work was particular to the sexes. Both types of work were seen as very important to the survival of society, which is why the state endorsed them.
B: Did these divisions ever come to an end?
C: Yes, fully in the 1970s but earlier as society mechanized, the nature of work, the sexual division of laborbecame far less rigid. In the 20th century, in our era, the sexual division of labor became no longer applicable. Came to be seen as increasinly archaic, states and SCOTUS stepped out of assigning work roles by gender. This did not however reduce the bargain. Currentyl,spouses roles are gender neutral. Most are obligated to support one another, but the law recognizes that one spouse may be the most economic supportive.
B: Why is the change in gender roles applicable to same-sex marriages?
C: Work roles within a household when gender specific required two genders. But now, with work no longer seen as gender specific, individual couples can decide the symmetry of their own gender roles. No longer enforced by the state. The presence of a marriage by members of the same sex no longer vioilates the states interst inmarriage.
These two arguments form the heart of the plaintiff's refutations of the Defendant-Intervenor. First, procreation by the married parties is not so central to the purpose of marriage as to defeat its purpose by extending it to those who cannot biologically procreate with each other; and second, because of the evolution of society, the state no longer has a vested interest in enforcing marriage only between male and female gender roles as essential to the maintenance of a household.
After refuting the arguments immediately at hand, the next task for plaintiff counsel was to further undermine the arguments of the defense by making the case that the same arguments had been used to defend restrictions now thought immoral and constitutional. Boies started by giving Professor Cott an opportunity to expound on the arguments made against 1967's Loving v. Virginia, which decriminalized interracial marriage:
B: At some point, the race restrictions were lefted? Were alarms sounded about how that threatened marriage?
C: These were state laws, there were cycles 1913 saw a lot of laws, and they recurred through US history. Even when SCOTUS in 1923 said marriage was a civil right, then in 1924 Virginia passed the most race-restricted in the nation. Called GOD’s PLAN, the natural law, the order of things. Because this was seen as such a hot-button issue, SCOTUS approached it extremely cautiously. THey could have taken a case in 1955, but they waited to decide a case in 1967 (Loving).
B: Did opponents of lifting these restirctions say marriage would be ruined?
C: Maybe not RUINED was used, but people thought and said their marriages would be less valued.
This train of thought continued in perhaps the most anger-inducing testimony of the day: that of Professor George Chauncey, an expert witness regarding the history of anti-LGBT discrimination in the United States. The entire testimony is painfully compelling, but particularly noteworthy is Dr. Chauncey's testimony regarding the campaigns led by Anita Bryant to repeal anti-discrimination ordinances protecting LGBT communities and its similarities to the messaging used by the proponents of Proposition 8. Here, S stands for Teresa Stewart, assistant attorney for the plaintiffs:
S: Dr Chauncey, would you tell the court generally about the themese of the SAVE OUR CHILDREN campaign that Anita Bryant led?
G: When they began, their polling showed support for the ordinance that forbade discrimination. They elected to focus on the CONSEQUENCES of the ordinance, one of them about children. They said allowing gay people to be open in jobs were they were exposed to children, as role models, and children could be easily swayed to homosexuality. They drew on stereotypes that homos were child molestors. Releasing homo predators onto children, in their presence, would be BAD. They were willing to tolerate homos, but didn’t want them open.
S: Was their literature about gays forcing themselves on normal people?
G: That was a central part of the SAVE OUR CHILDREN campaign.
C: read the language ascribed to Anita Bryant.
G: Some of the stories I could tell you of child recruitment and child molestation by homosexuals would turn your stomach. Homosexuals cannot reproduce so they must recruit. Who will they recruit? A 35 year old father? A mother of two? No, they will recruit a fresh young person, a boy entering manhood or an innocent young woman."
In short: "they're not only wrong, but they said the exact same thing to support other unconstitutional discrimination, so go figure."
The defense, meanwhile, was reduced to attacking the character and impartiality of the witnesses, and sent out a release claiming that they were successful in showing that the expert witnesses called by the plaintiffs were partial gay marriage supporters. Seriously.
So what's on tap for today? In addition to further testimony by plaintiff witnesses, we can expect a ruling from the SCOTUS no later than 1pm PST on whether television coverage of the proceedings will be permitted.
Further in-depth coverage: