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Federal Prop 8 Trial Pauses

The trial in the federal case against Proposition 8 paused Jan. 27 after the final witness testified at U.S. District Court in San Francisco.

Judge Vaughn Walker plans to review the evidence, then call the attorneys back for closing arguments, likely in March.
Gay lawyers, activists and others who followed the trial predicted, nearly unanimously, that gays won the case in a landslide.
“What stands out the most after having seen all the witnesses on both sides is how overwhelmingly one-sided the evidence in this case turned out to be,” said Shannon Minter, legal director of the National Center for Lesbian Rights, who covered the trial for the Pam’s House Blend blog.

“The plaintiffs, represented by some of the most skilled attorneys in the country, laid out a well-crafted, meticulous case, backed by the testimony of half a dozen of the most respected historians, psychologists, economists and political scientists who study marriage, sexual orientation and child development.” Minter said. “Using the Prop 8 proponents’ own outrageous and inflammatory words, ads and e-mails, the plaintiffs powerfully demonstrated that Prop 8 was a direct product of hostility, fear-mongering and demonization of lesbians and gay men. And through the deeply moving testimony of the plaintiffs and other members of our community, they proved beyond question that denying same-sex couples the right to marry causes great harm to LGBT people and their children.”

The lawyers defending Prop 8, on the other hand, failed miserably, Minter and many others said.
“Stacked up against this mountain of facts, scholarship and science, the Prop 8 proponents — though represented by fine attorneys — were not able to come forward with a case of their own,” Minter said. “Before trial, they dropped nearly every witness they had planned to present and relied entirely on two poorly qualified, ill-prepared expert witnesses, neither of whom was able to establish that banning same-sex couples from getting married has any rational or legitimate purpose relating to procreation, child rearing, tradition, or any of the other justifications that have been offered in the past in support of anti-gay discrimination.”

The gay side is represented by famous lawyers Ted Olson and David Boies, who argued that Prop 8 violates the U.S. Constitution’s guarantees of due process and equal protection under the law.
To buttress their case, they attempted to demonstrate a number of things that intersect with precise legal considerations or constructs: that there’s no coherent reason for the government to ban same-sex marriage, that Prop 8 passed primarily because California voters are prejudiced, that gays and lesbians need government help to fight the discrimination and persecution that continue to harm them, that being gay is usually not a choice and sexual orientation is usually immutable, that gay couples’ children fare as well as straight couples’ children, and that so-called traditional marriage has undergone transformations throughout history.

Passed by voters in November 2008, Prop 8 amended the California Constitution to re-ban same-sex marriage just 4½ months after the state Supreme Court legalized it.

Olson and Boies’ lawsuit is ultimately aimed at the U.S. Supreme Court, where it could end up as soon as a year from now, after a stop at the Ninth U.S. Circuit Court of Appeals. If successful, the lawsuit could bring about the legalization of same-sex marriage nationwide, which would be the mother of all gay rights victories.
If unsuccessful, the lawsuit could have the effect of stopping the movement for same-sex marriage, which now is legal in five states, dead in its tracks for possibly a generation.

The lawsuit is without doubt a high-stakes gamble, so much so that the gay rights legal establishment opposed it and was, as a result, blocked by Olson and Boies from later jumping on the bandwagon once it became clear the case was going to happen and was going to be a very big deal.

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