Jan 27 | last day of testimony:
As testimony in the trial over the fate of Proposition 8 drew to a
close, the central question of “what is marriage” dominated the heated
— and occasional unintentionally humorous — debate.
Early Wednesday, the final defense witness, David Blankenhorn, the
founder and president of the Institute for American Values, again
locked horns with David Boies, a leading lawyer for the plaintiffs
seeking to overturn the ban.
At one juncture, Mr. Boies asked Mr. Blankenhorn whether some of the
experts he had earlier cited as saying same-sex marriage would damage
traditional marriages had voiced their opinion with absolute certainty
or merely suggested it was “likely.”
Mr. Blankenhorn seemed annoyed. “The issue is always likely, Mr. Boies,” he said. “There is no certainty.”
Later, Mr. Boies questioned Mr. Blankenhorn on his belief in three
so-called rules of marriages: that they must be made up of opposites
(like man and woman), that marriages are made up of two people and that
marriages involve sex. After a discussion of some anthropological cases
of homosexual marriages in Africa and other cultures, Mr. Boies pushed
Mr. Blankenhorn on whether he believed all marriages must fit that
template.
Mr. Blankenhorn said he would speak carefully, saying “to be on the safe side,” that there were “no or almost no exceptions.”
Mr. Boies pressed for a more definitive answer. Mr. Blankenhorn didn’t respond.
After Mr. Boies asked again, a few in the packed courtroom began to
giggle, and Mr. Boies smiled. “It’s not a laughing matter to me, Mr.
Boies,” said Mr. Blankenhorn, seeming upset.
Judge Vaughn R. Walker, who is overseeing the trial, stepped in. “I
don’t think he’s laughing at you,” the judge said. “He’s amused at the
back and forth. As many of us obviously are.”
Mr. Blankenhorn later drew a surprised response from spectators,
many of whom seemed to be siding with the plaintiffs, when he said that
historical instances of polygamy in places like China and India did not
technically violate the second rule — that marriage is between two
people.
“Each marriage is separate,” Mr. Blankenhorn said. “One man and one woman.”
Both sides anticipate Wednesday to be the last day of a trial that
began two-and-a-half weeks ago and initially featured reams of
testimony from the plaintiff’s side, a pair of gay couples who say that
Proposition 8, which California voters passed in 2008 and eliminated
same-sex marriage, violates their constitutional right to due process
and equal protection.
Judge Walker has said that the trial would take a break after
testimony was heard to allow him time to digest the information;
closing arguments will be set later.
The defense case, which began on Monday, has been slimmer but often
more dramatic, with Mr. Boies, a celebrated courtroom litigator,
conducting bruising cross-examinations, which sometimes lapsed into
innuendo-laden territory.
At the start of a discussion of the third rule of marriage – that
sex is always involved – Mr. Boies said that he didn’t want his
questions to “want to fall into the trap of making sex boring.” Mr.
Blankenhorn shot back. “Maybe together we can do that,” he said,
prompting loud and embarrassed laughter in the courtroom.
Update | 3:47 p.m.
Moments after the gavel sounded in Judge Vaughn Walker’s courtroom
just after noon on Wednesday, bringing witness testimony to an end in
the Proposition 8 trial, lawyers from both sides (and there were
plenty), cordially shook hands with one another. At one point, one
junior partner asked another what he planned to do next?
“Rest,” was the answer.
Indeed, whatever one’s opinion of gay marriage, what is certain is that
the two-and-a-half weeks of legal punch-counter punch was by turns
riveting, dense, and often just plain exhausting. (Sleepy, and even
closed eyes, were not uncommon among spectators after lunch).
Much of that goes back to methodical legal strategy: Lawyers for the
plaintiffs wanted to build an evidence-heavy case not only for this
court level, but for its expected journey to the Supreme Court. The
defense’s approach, meanwhile, was also step-by-step (if noticeably
more brief than the plaintiffs), as they walked their witnesses through
testimony that was being simultaneously projected as a Power Point
presentation on screens in the courtroom.
Add to that the high stakes—the right of a discriminated minority to
marry, as the plaintiffs see it, or the rights of the states to define
marriage, the defense’s position—and its not surprising that both sides
were in need of a nap.
What helped fight fatigue, however, was the innate drama offered by
cross examinations on both sides, including the type of questions that
might make people uncomfortable in other surroundings.
On Jan. 11 (Day One), for example, Brian Raum, a defense attorney,
asked Paul T. Katami, a plaintiff, if it was his opinion that “there’s
nothing wrong” with same-sex marriages or relationships. Mr. Katami,
who seemed to be fighting hard to control his emotions, said he said he
found nothing wrong with them, even as Jeffrey J. Zarrillo, his partner
and a co-plaintiff, sat silently in the courtroom.
Wednesday (Day 12) was no less gripping at times, such as when David
Boies, who lead the plaintiff’s often grueling crosses, continually
pushed defense witness David Blankenhorn, the founder and president of
the Institute for American Values, to answer questions unequivocally.
Mr. Blankenhorn seemed to chafe at the methods of Mr. Boies, saying he
was trying to put words into his mouth and accusing him of setting up
“Gotcha” moments.
At one point, Mr. Boies asked for “yes or no” answer regarding polygamy.
“I would give a lot if I could have 15 seconds to answer the question,” said Mr. Blankenhorn, seemingly exasperated.
“Go,” said Mr. Boies, as Judge Walker— presided with a sense of
humor and an occasional annoyance at the sometimes slow
pace-of-play—crossed his arms with a frown.
After his answer, Mr. Blankenhorn said to Mr. Boies: “How’d I do?”
“You did OK,” said Mr. Boies. And then continued to press his attack.
Considering the tension of moments like that, it was also not
completely surprising that people periodically cracked up in the
courtroom, sometimes snickering at exchanges between witnesses and
questioners. On Wednesday, when Mr. Boies said he’d turn his
questioning to “sex,” in reference to marriage, Mr. Blankenhorn chimed
in: “That’s a good subject.” Awkward giggles were heard.
Still, after testimony concluded on Wednesday, Judge Walker seemed
genuinely impressed, calling the case “fascinating,” and praising both
the “old hands in the courtroom” and the younger lawyers who filled
other seats at the table. But even Judge Walker, who likely won’t hear
final arguments until at least March, seemed to need a little break
from the action.
“I’d like to take some time,” he said, “to go over all the material.”
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