Religion on trial

The federal trial of California's Proposition 8 is now on hold-waiting for U.S. District Court Judge Vaughn R. Walker to review the evidence now that both sides have presented their case.

The plaintiffs in the case claim that marriage is a fundamental right and that there is no social benefit to refusing this right to same-sex couples. On the other hand, the defense has argued that marriage has a biological basis based on heterosexual reproduction, and that gays and lesbians are not a powerless political minority suffering discrimination.

Traditional marriage advocates say that their religious beliefs have been put on trial, with the attorneys representing the plaintiffs calling a series of witnesses calculated to prove that religious bigotry motivates Proposition 8 supporters.

On the trial's seventh day, Stanford University professor Gary Segura testified that gays and lesbians were a vulnerable political minority: "Religion is the chief obstacle for gays' and lesbians' political progress."

Later, as part of their attempt to prove that Proposition 8 emerged from religious bigotry toward homosexuals, the plaintiffs' attorneys interrogated William Tam, a leader in the movement to pass Proposition 8, about his religious beliefs. Examined were his private emails, and internal memos, including one statement that read, "If Proposition 8 loses, one by one other states will fall into Satans' hands."

Another witness testified that legalizing same-sex marriage would benefit the California economy, and San Diego Mayor Jerry Sanders spoke of how he ceased to see civil unions as a fair alternative to same-sex marriage once his daughter came out as a lesbian.

On day 11 of the trial, David Blankenhorn testified for the defense, defining marriage as a "a socially approved sexual relationship between a man and a woman." He said that it rests on the biological facts of reproduction and brings together the legal, social, and biological dimensions of parenthood.

The defense team then worked to prove that homosexuals are not a powerless minority. Political scientist Kenneth Miller testified that gays and lesbians hold political power, noting that the "No on 8" campaign raised $43 million-$3 million more than "Yes on 8." He said that gays and lesbians can count the Democratic Party, lawmakers (a "striking" number of supporters in the California legislature especially), newspapers, corporations, celebrities, and churches among their allies. Ironically, he listed Gov. Arnold Schwarzenegger-technically a defendant in the case, although he supports same-sex marriage-as one of the group's political allies. Of California's largest newspapers, 21 of the 23 endorsed the "No on 8" campaign. California was the first state with a lesbian, gay, bisexual, transgender legislative caucus, which has had eight members over the years.

Proposition 8 supporters have objected throughout the trial to Judge Walker's conduct, accusing him of showing favoritism toward the plaintiffs. At one point, defense lawyer David Thompson requested a 10-minute break for Miller, complaining about the plaintiff attorneys' long cross-examination. The judge rejoined, "Well, there is something about pots and kettles, talking about long cross-examinations, Mr. Thompson." According to defense counsel Andy Pugno on his blog, Judge Walker has "still forced us to hand over literally tens of thousands of pages of sensitive campaign memos, emails, and other documents" without requiring the same from the plaintiffs.

Chris Clark, pastor at East Clairemont Baptist Church in San Diego, said that the trial is simply rehashing points of contention made during the Proposition 8 debate while also trying the intent of Proposition 8 supporters. The plaintiffs' counsel are revisiting all of the arguments made in the Proposition 8 campaign-for instance, that children would be negatively affected by same-sex marriage or that it would undermine heterosexual marriage-with expert witnesses. These witnesses, upon cross-examination, said Clark, don't have the hard evidence to back up their assertions. Clark added that the court is also requiring Proposition 8 supporters to prove that their views are not based on a hatred that stems from their religious beliefs: "We are not allowed to inject our own value system, regardless from where it comes, and if we don't see things their way then we're hateful, we're bigoted."

Both sides have finished presenting evidence, with the plaintiffs taking two weeks and the defense calling a total of only two witnesses over two and a half days. Judge Walker has said he will review the evidence and possibly hear final arguments in March. The case probably won't be over when he rules, though; if either side appeals, there's the U.S. Court of Appeals for the 9th Circuit and the U.S. Supreme Court ahead.