At Calif. gay marriage trial, marriage is not the only flash point

Lawyers for two same-sex couples, over nine days of testimony, have examined general attitudes about modern marriage, homosexuality, and whether sexual orientation warrants special legal protection. They seek to overturn Proposition 8, which bans gay marriage in California. Defenders of the ban are up next.

Robert Galbraith/Reuters/File
Same-sex couples Paul Katami (L), Jeff Zarillo (2nd L), and Kris Perry (2nd R) and Sandy Stier pose for photographs before the start of their trial in San Francisco, California January 11, 2010. California's ban on gay marriage went to trial on Monday.

On Friday, Day 9 of the federal trial challenging California’s gay marriage ban, lawyers for two unwed same-sex couples are expected to call their final witness: a psychologist to testify on the nature of sexual orientation.

That expected testimony illustrates how the case, in which the major thrust is that California's Proposition 8 violates the right of same-sex couples to equal protection under the Constitution, is in fact about so much more. Thus far, it has also been an examination of modern marriage, contemporary attitudes about homosexuality, and the idea that sexual orientation warrants special legal protection. Indeed, it is a case designed to prompt to US Supreme Court challenge and resolve the divisive nationwide debate over gay marriage.

On Thursday, one of the most controversial witnesses took the stand.

Hak-Shing William Tam, a Chinese-American leader in San Francisco and executive director of the Traditional Family Coalition, joined the case as a supporter of Proposition 8, but lawyers contesting the ban called him as part of their effort to show California's marriage initiative was driven by animosity toward gays and lesbians.

Mr. Tam said he supported Proposition 8 because it’s very “important for the next generation to understand the historical importance of marriage. It’s important our children won’t grow up to fantasize or think ... 'should I marry Jane or John?' ”

But in his testimony, he also acknowledged that he promoted the idea that voting against same-sex marriage could blunt the “gay agenda,” and that allowing it would lead to legalized prostitution, incest, and polygamy.

For supporters of same-sex marriage, Tam is a symbol of what they say are discriminatory attitudes behind Proposition 8.

Efforts to show a pattern of hostility

Since the trial began Jan. 11 in the US District Court for Northern California, lawyers for the two couples have called to the stand psychologists and historians to try to show a pattern hostility that limits the political power of gay and lesbian Americans.

[Editor's note: The original version of this story had the wrong federal court.]

"Gays and lesbians do not possess a meaningful degree of political power. They are not able to protect their essential interests," Stanford University Prof. Gary Segura testified Wednesday, according to The San Francisco Chronicle. “There is no group in American society who has been targeted by ballot initiatives more than gays and lesbians.”

Proposition 8 opponents aim to demonstrate that gays and lesbians are more vulnerable to discrimination and therefore merit greater legal protection against discriminatory laws. Thus far, however, the Supreme Court has been unwilling to grant "suspect class" status to sexual orientation, as the court has applied to race, religion, and ethnicity in deciding other equal protection cases.

“I don’t see how anyone can argue with a straight face that the homosexual community in California doesn’t have political power,” says Austin Nimocks, senior legal counsel for the Alliance Defense Fund, which joined Protect in defending Proposition 8. What’s more, he says, “we don’t believe that personal behavior rises to the level of a protected class.”

A witness who helps both sides?

While Tam may be an important witness for the plaintiffs’ argument that animus was a driving factor behind Proposition 8, Mr. Nimocks does not see him as a liability for those defending the gay-marriage ban.

“Tam exemplifies what this case is about: someone who cares about his family, his state, the future, and put his feet in motion. That’s what the initiative process and democracy is all about,” says Nimocks.

Still, lawyers for Protect have said that many of Tam's accusations were not sanctioned by the Proposition 8 campaign, which has long held that the initiative was not built on animus but is a result of Californians' desire to maintain the traditional definition of marriage.

The defense is expected to begin its case Friday with witnesses who will dispute many of the claims made by the plaintiffs' experts, such as Dr. Segura's testimony that gays and lesbians lack political power.

Their part of the trial will be much shorter than their opponents' case, says Nimocks, because the burden rests on the same-sex couples to establish that Proposition 8 is unconstitutional. “We still maintain there was never any necessity for a trial," he says.


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