How Will Protect Marriage Try to Defend Prop 8 In Perry? With Spin, Hope, and a Prayer


As Olson/Boies move to wrap up their case today, it’s time to see what’s Charles Cooper (pictured) has in store for their side of things. Will they counter the plaintiff’s claims that Prop 8 was rooted in religious beliefs and promoted discrimination? Or will they attempt to convince Justice Vaughn Walker that Yes On 8 only wanted to do what’s best for California’s kids? Let’s look at the options!

Two weeks ago, Perry v. Schwarzenegger kicked off with testimony from two couples — Sandra Stier and Kristin Perry, and Jeffrey Zarrillo and Paul Katami — about how the voter-approved Proposition 8 affected their lives. Namely, that it prohibited them from getting married, and enjoying all the special rights and privileges afforded to drunk heterosexual couples who can stumble into City Hall at their leisure and get hitched. But as this trial reaches its midpoint, it’s time to hear from the defendants, who in this case are not the State of California or Attorney General Jerry Brown (who concluded Prop 8 is unconstitutional and unworthy of being defended), but the group Protect Marriage and its attorney Charles Cooper, who’s joined by intervenors Dennis Hollingsworth, Gail J. Knight, Peter Henderson, and Mark A. Jansson (and, against his better judgment, Hak-Shing William Tam, who’s trying to quit the case). After a dose of expert witnesses from Olson/Boies, it’s time to see what haphazard theories about discrimination the defense could latch on to.

Voters were just exercising their rights. Prop 8 is not an issue of discrimination, the defense will argue, but was actually an exercise in democracy. By letting voters choose whether to “change the definition” of marriage, the ballot measure actually gave gays and lesbians, and their neighbors, the ability to vote for or against a state issue. And what’s better for America than letting the people decide? By calling voter-initiative expert Kenneth Miller to the stand first today, it’s likely Protect Marriage will go this route.

We must protect the interests of family. Sure, defendant-intervenor William Tam’s ridiculous theories on how gay marriage encourages pedophilia and child molestation was pretty damning for the defense, because it was CRAZY TALK, but Cooper and co-counsel David Thompson’s case relies on the argument Prop 8 was about reserving marriage for two people who can best foster a healthy environment for children. We expect them to shy away from Tam’s nonsense claims, given they weren’t eager to keep him on board as a defendant as the trial started. But their witnesses will include family experts, who will testify how nothing but a mother-and-father arrangement can satisfactorily render productive children. Expect them to also discount the plaintiffs’ notes about how heterosexual marriage hasn’t been reserved for child-producing couples (Judge Walker himself noted how he just officiated the marriage of an elderly couple), but how they’ll do this, we’re interested to see.

… and the institution of marriage. Slightly different from “protecting the family,” this argument will directly counter the plaintiff’s testimony that marriage, throughout history, was not always for heterosexuals. Though we’ll doubt they’ll bring up the “marriage wasn’t always about love or kids, either” part of history.

Who cares about the economy? We expect the defendants to make an effort to counter the argument that gay marriage would be good for California’s economy only because the plaintiffs brought it up. Whether they’ll have their own financial wizards to argue how gay marriage will hurt the economy is a possibility; we see a stronger likelihood in Protect Marriage arguing that it shouldn’t even be a factor.

Gays already have political power. On cross-examination of a plaintiff’s witness, Yale professor Dr. George Chauncey, defense attorney Thompson tried to show that gay Americans, through Will & Grace and Brokeback Mountain and HRC, already exert an enormous amount of lobbying power and equality in the public’s eye. So why, then, must they also need this marriage thing? This a terribly weak argument, and was made, perhaps, because it was the best one available on cross, so it’s uncertain whether the defense will bring it up again on their own direct examinations. But Protect Marriage has a roster of experts at the ready to testify how much progress gays and lesbians have made in America, how many rights and protections they already have been afforded, and that this whole M-word thing is just one step too far.

The God factor. Will the defense invoke religious beliefs, or the story of creation, to push its theory? We’re guessing no, given Cooper’s previous statements in court filings: “The traditional definition of marriage does not reflect animus against gays and lesbians. It simply reflects the fact that the institution of marriage is, and has always been, uniquely concerned with promoting and regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation.” Then again, you could argue there’s a religious tint in there already. The only time the defense will want to bring up religion is to counter claims that Prop 8’s backers were motivated by their faith, which just happens to be anti-gay.

Polygamy. Long shot! But the argument that gay marriage will lead to the legalization of polygamous marriages has been made before, and it’s quite an effective scare tactic. Well, in public forums it is. In the courtroom? Remains to be seen.

And of course: The victim card. Despite endless attempts by homosexuals to frame themselves as the victims, the real casualties of this fight are conservative heterosexuals!, who are being attacked for their beliefs. (That’s the reason the defense didn’t want cameras in the courtroom, remember.) If Perry is about one thing, it’s discrimination, and being able to prove it — and that its existence is a violation of the Constitution — will ultimately be the trump card for the victor. So it makes sense the defense will try for the gold, and this is the one time they might actually bring up William Tam, who told the court he wanted to leave the case precisely because he felt attacked. Except the defense already admitted a fatal mistake: When asked by Judge Walker how gay marriage would hurt heterosexual marriage, Protect Marriage attorney Charles Cooper could only respond: “Your Honor, my answer is: I don’t know. I don’t know.”

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  • FakeName

    The word is “rebut”, not “rebuff”.

  • Brian NJ

    Let’s see if they stand behind their claims of zapping children’s minds, or if now that they are required to show proof, they will tacitly admit that they were lies, which they were.

  • Wade macMorrighan

    Ah…always playing the victim, I see, ‘eh Prop H8?! :o) BTW, is anyone worried about their first witness: Kenneth Miller, an associate professor of government at Claremont McKenna College? He is, apparently, supposed to argue about the context of the voters being allowed to vote on legislation that particularly targets a minority. Any guesses about how he intends to defend the voters who voted and got their votes counted in favor of Prop 8? How do you think the Plaintiff (our side) would squash such an advocate for “the Will of the People” (whether biased and prejudicial, or not)?

    Also, shouldn’t ALL that really matters is the question (which Mags and NOM seem to ignore): “What Would the Founders Do?” They, I am certain, would NEVER have allowed this to have occurred!

  • rf

    no. 3 – “What Would the Founders Do?” They, I am certain, would NEVER have allowed this to have occurred!

    unfortunately, the founding fathers considered each slave (non free person) to be worth only 3/5ths of a free person in the constitution.

    Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

  • nom de plume

    William Tam: Crazy, or simply aware of the existence of NAMBLA?

  • Steff

    You guys should seriously read the transcripts of today’s courtroom antics.

    Prop 8’s witness royally fucked up. First Boies got him to admit that he had been coached on his appearance and what he should say.

    Professor Kenneth Miller (M), David Boies (B):

    M: Private situations about which I cannot opine, but the only official discrimination of which I can think is DADT.
    B: Is that your definition, official discrimination, that is legally enforced by the state?
    M: Yes.
    B: Are you aware of any official discrimination against gays and lesbians in this country today other than DADT policy?
    M: (Thinking) I’m trying to think of other laws that are official…policies that discriminate on that basis. One thing you are looking at would be DOMA policy.
    B: There you go!
    M: That’s what you are getting at. The DOMA policy is a differentiation of the treatment between gays and lesbians.
    [So the Prop. 8 official and so far only witness just said that DADT and DOMA are “official discrimination.”]


    M: In California, there is no opportunity to amend unless they pull it back.
    B: How often has that happened in California?
    M: Not infrequently.
    B: When was last time?
    M: I guess.
    B: I’m not asking you to guess. I’m asking you to tell me the last time.
    M: Many times it’s pulled back.
    B: When was last time in CA that signatures were gathered and then proponents pulled back to make compromise?
    M: Discussed in 2005 special, but did not happen.
    B: Give me last time in California?
    M: I can give you example in Colorado.
    B: We’re talking about Ca. You wanted to talk about CA.
    T: Objection, He’s badgering the witness.
    Judge Walker: Overruled. This is cross-examination.
    B: Good God, man!
    M: I don’t know.


    Ahahaha. *glee*

  • Steve

    After the first day of defense testimony, the short answer so far seems to be “incompetently”.

    Dr. Miller was the first witness for the defense. During direct, he was not particularly convincing. During cross, under Boies, he ended up agreeing with the plaintiffs on several major points.

  • Rori Raye

    Thank you for getting this out and public. Sometimes I’m ashamed to be a human being. Don’t know what to say to friends and family who are bigoted – and they would be horrified to think of themselves as bigoted – most are in a minority group of one faith or race or another. I just walk away. Too much heaviness in this world, and then the politics just rub the sand in the wound. We are becoming a society of the numb, the uneducated, the medicated, the arrogant, the certain, the autistic (day by day we are cutting ourselves off from ourselves, day by day our children are getting more and more ill), the fearful. thanks for some sane voice out here. Rori Raye

  • Lukas P.

    Boies nailed Miller. If Miller was “coached” — and maybe I’m wrong in assuming all witnesses are — then either he’s got a pervasive developmental disorder [“retardation”, in common parlance] , or he was woefully prepped for very basic questions. The legal savants among us might not like the term but we’re seeing not so much as a “hostile witness” but a mere “simpleton.”

    Protect Marriage scores a major FAIL with Miller. I’m glad Boies proved the animus comes from ignorance. I’m likewise hoping the rest of the PropH8 witnesses are equally moronic.

  • B

    No. 9 · Lukas P. wrote, “The legal savants among us might not like the term but we’re seeing not so much as a ‘hostile witness’ but a mere ‘simpleton.'” …. I wouldn’t call him a simpleton based on his testimony. It seemed more of a case of a mismatch between whatever he is really an expert in and what Boies was asking about.

    Questions like “tell me the date of the last time someone did X
    involving some initiative” are trivia – its not the sort of thing worth remembering unless you know you are going into something resembling a game show where they’ll try to trip you up for not remembering it. So I guess the Prop 8 lawyers should have warned him to expect that sort of nitpicking – I’d blame them more than Miller.

    For instance, I’ve given technical talks regarding some Internet-related topics with the person who designed TCP and IP in the audience, and where most papers were rejected including ones from quite a few major universities. So I can claim to be an expert. But if you asked me how to put a video on youtube or how you do something with facebook, I couldn’t tell you because I haven’t bothered with those – they are just applications running on various servers.

  • Morgan

    I am a straight male who voted to remove same-sex marriage from the CA constitution. I consider myself quite conservative especially with fiscal policy and somewhat with social policy as I believe there needs to be a balance in bringing about change. I grew up in a small town and through my life i’ve been staunchly catholic. I personally believe in God and the ideal of no sex before marriage. I believe that a child will thrive best with biological opposite sex parents.

    I have attended the same church for more than twenty years, the church involves enormous family ties and I believe I am/was well liked there. There have always been small, infrequent and polite debates about homosexuality in the church, in the beginning I agreed. I voted in the only way I knew how to without a second thought standing true to my beliefs. In the wake of proposition 8 there has been a constant laser-beam focus on homosexuality like never before, that has affected me. Religious people seem to be very aware of the current court case happening and are not happy that the issue is ongoing. In recent sermons I sat slightly perturbed as to how a religious person be advocating for the death of a homosexual? What kind of human beings deserve to be called “dis-ordered”, “inartistically evil” etc.

    Some time ago I met a lesbian woman in a chatroom and we have grown into very good friends, albeit online. She knew my views on sexuality and was open to discussion on her side, for that reason so was I and slowly as the began to interact I learned a great deal of sadness in her life-story especially in her upbringing. I remember waking up in the middle of the night, feeling a sense of guilt. I decided to research the history of gay rights struggles which due to my sexuality and religious upbringing I had never given a second thought to previously. With my eyes more open I spoke to some of my friends at church to try and see if we could break some new ground, open some minds, or find a healthy compromise.

    Nothing came of it. I don’t want to go into details but I have not been back since and will probably not go back unless some compassion is shown towards homosexuals, who, in my opinion, are only seen as promiscuous and bad to society directly because people like myself, and others have treated and continue to treat them like lesser-then half-humans. I never bothered to think of it this way before but,, how can people expect homosexuals to live healthy, stable lives if they are not accorded the same expectations and privileges of heterosexual people? How can children who already live in homosexual households not be harmed by virtue of their parents rights and lifestyles being constantly voted down?

    Yes I believe a biological heterosexual household is the ideal, however I have since changed my mind and come to realize that we do not live in disneyland and the world is not ideal and never will be; excluding homosexual marriage on the basis for this desire no longer holds true to me.

    I offer my heartfelt apologies for the senseless vote I cast last november. I feel terrible about it and am angry that I didn’t question the issue beforehand; it’s like my name and soul will now forever go down in the history books as promoting hatred, and ruining lives. I really hope that this court case wins and another court once again rules in the favor of equal rights and if there is ever a future poll regarding gay marriage that I am able to get out and vote NO to any ban. Honestly, this post doesn’t even begin to explain how hard I have had to think and the length of time this has all taken – but know you now have one of the most unlikely allies.

  • 1EqualityUSA

    Dear Morgan, Post #11 is one of the nicest letters I’ve ever read on this Queerty site. Thank you for putting so much thought into your decisions. Spiritually, love is always a winner. I wonder if Maggie Gallagher feels this way as well, but is so entrenched in the battle that to turn back now would be too difficult. I would have such respect for her if she said what you just said in Post #11. Come on Mags, hold a press conference and speak the truth. You know you’ve had a change of heart. Say it now. Thank you, Morgan.

  • Nick


    Thanks for your heartfelt post. It is greatly appreciated.

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