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.”