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Strong Words in the Prop 8 Trial's First Days

By L.K. Regan

It's been a roller-coaster so far: the Prop 8 trial underway since Monday in San Francisco was originally supposed to be the YouTube trial of the new decade. That was until the U.S. Supreme Court stepped in and banned video of the proceedings, over the objections of the anti-Prop 8 attorneys. Even so, a clear picture is emerging of the courtroom events, and it's energizing. Here's the run-down of where things have been in the first couple of days of testimony.

One remarkable element of the San Francisco trial is the attorney arguing to overturn Prop 8, the gay marriage ban that was inscribed into the state constitution by ballot measure in November of 2008. Leading the charge against the amendment is Ted Olson, long a stalwart advocate of conservative causes. In 1999, he led the prosecution in Bush v. Gore, the Supreme Court case that installed President George W. Bush in office after a contested election. In 2001, his wife was killed in the 9/11 attack on the Pentagon. Yet for the current challenge in federal court, Olson is joined with his former Bush v. Gore adversary, David Boies.

To the surprise of many on the left, Olson is proving gay marriage's most articulate advocate, a fact proven by the meticulous live-blog written by Rick Jacobs in the absence of video. On day one of the trial, Olson described the descriminatory root of Proposition 8. As Olson told the court, in justification of why courts should even involve themselves with the gay marriage question, "That’s why we have courts, to protect those who are discriminated against, when their children can’t go to school because of their skin color. We would not need a constitution if we left everything to the political process. We’d just let the majority prevail and that’s a good thing about democracy, but it’s not so good if you are different, new. It causes gays and lesbians unrelenting pain. We have the courts to take our worthy, upstanding citizens who are being hurt to be protected by the courts. That’s why we are here today."

A key argument of the pro-Prop 8 lawyers on day one concerned the supposed "negative impact" of gay marriage, an argument resting overwhelmingly on the testimony of a single witness. Meanwhile, Nate Silver's number-crunching website FiveThirtyEight.com finds that states with gay marriage bans actually have higher divorce rates than states without them. As Silver writes, "Since 2003, however, the decline in divorce rates has been largely confined to states which have not passed a state constitutional ban on gay marriage. These states saw their divorce rates decrease by an average of 8 percent between 2003 and 2008. States which had passed a same-sex marriage ban as of January 1, 2008, however, saw their divorce rates rise by about 1 percent over the same period."

Day two of the trial was largely a history lesson. Two Ivy League professors, Harvard University professor Nancy Cott, an expert on the evolution of marriage, and George Chauncey, a Yale University historian and expert on discrimination against gays and lesbians. Both testified not only to the discriminatory nature of Prop 8 itself, but also to their certainty that, sooner or later, gay marriage would be the law of the land. Professor Cott, in her testimony, addressed the notion that the primary purpose of marriage is procreation: "There has never been a requirement that a couple must produce children in order to have a marriage," she told the court. "Couples beyond the procreative age were always allowed to marry. Sterility has never been a bar to marriage. George Washington, the father of our country, was known to be sterile, which was considered an advantage because he could not create a dynasty."

Professor Chauncey put the lengthy history of anti-gay discrimination into historical perspective, by describing the methods used to intimidate gay men in the past: "At times when there were police crackdowns," he said, "people were very careful about going out in public. Disorderly conduct charges were not that serious in and of themselves, but it opened people up to more problems. Police would call their parents, landlords and work place to confirm data. So that would lead to them being known homosexuals which could lead to loss of jobs and homes, which sometimes it did lead to."

By this point it's clear, whatever else the outcome of this trial, it is giving new voice to the history of gay people's struggle for equal rights.