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Prop 8 Trial Takes Place in District Court

Over the course of two and a half weeks, Chief Judge Vaughn Walker presides over the Prop 8 trial in district court in San Francisco.  While other courts to consider lawsuits pertaining to LGBT rights have eschewed the step of holding an actual trial, Judge Walker decides to proceed to trial in order to build a record of fact upon which he can base his opinion.  The non-jury trial includes an unprecedented courtroom look into the history of marriage in the United States, the discrimination LGBT people have faced throughout American history, and the economics involved in prohibiting or allowing marriage equality in California.

During the trial, lawyers for the plaintiffs argue that marriage is a fundamental right shared by both straight and gay couples alike, and that Prop 8 takes away this fundamental right from gay and lesbian couples only.  In doing so, Ted Olson and San Francisco Deputy City Attorney Therese Stewart argue in their opening statements, Prop 8 harms the children of gay couples in California, and does so without any rational reasoning.  The four plaintiffs in the case testify before the court, sharing the experiences they had coming out of the closet and eventually meeting their partners and beginning lives together, as well as stressing the importance that marriage holds for them as opposed to the less-recognized institution of domestic partnerships.

In addition to the plaintiffs, several scholars and academics appear before the court as expert witnesses.  Nancy Cott, a professor of American history at Harvard, testifies about the history of marriage in America and the way the definition of marriage has changed over the years.  Yale professor George Chauncey, a major scholar of gay and lesbian history in the United States, testifies about the history of anti-gay discrimination and prejudice in America.  Other academics tell the court that marriage equality would have no harmful effect on opposite-sex marriages in California, and a San Francisco economist makes the argument that Prop 8 itself is in fact a drain on government resources.

In the courtroom, Judge Walker hears testimony from William Tam, one of the official proponents of Prop 8 and a significant figure in the campaign to pass Prop 8 a the ballot in 2008.  In cross examination, David Boies questions Tam on statements he has made that proponents of marriage equality “want to legalize prostitution” as well as “legalize having sex with children.”  Tam stands by those statements.

Only two expert witnesses provide testimony for the proponents of Prop 8.  The first is Professor Kenneth Miller, of Claremont McKenna College, who admits on cross examination with David Boies that both the Defense of Marriage Act and Don’t Ask, Don’t Tell are policies that discriminate against gays and lesbians.  The second witness, David Blankenhorn, says during his testimony that marriage equality would be “a victory for the worthy ideas of tolerance and inclusion” and “a victory for, and another key expansion of, the American idea.”  (More than two years later, in June 2012, Blankenhorn writes an opinion piece in the New York Times formally supporting the freedom to marry for gay and lesbian couples.)

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