In the Civil Rights trial of the Century, yesterday, the Supreme Court killed putting each day's testimony on YouTube, Eve Conant noted the difference in the number & passion of each side and Gary Shih described what happened in the trial itself.
Perhaps some of the most interesting people engaged in the Perry v. Schwarzennger trial this week in California are those who sit quietly in the main courtroom, observing. There is the older gay couple, David Bowers and Bruce Ivie, who were married legally in California before Prop 8 passed but want the same rights for their friends. They seem like gentle but determined watchdogs. "We are going to be here every day," says Ivie. The courtroom is small and hot and it's hard not to notice small physical reactions to testimony, like how Bowers seemed unable to breathe and then needed a Kleenex when the young plaintiff Jeff Zarrillo described how coming out "is a very personal and internal process." There is the African-American lesbian sitting right behind me, and the four young lawyers who want to see what one of them calls "our generation's Brown v. Board of Education." Inside and outside of the courtroom are journalists, legal reporters, and the lesbian legal expert who is blogging but still hasn't made the leap to Twitter. On the first day of trial, after a cold morning vigil outside, a lesbian couple in the elevator joked about one of them having hat hair. "She's going on TV! She's going to be interviewed!" said her wife, or perhaps domestic partner, or perhaps girlfriend. "I told her not to wear that hat," they both laughed, but the mussed-up one in question still did her best to press down her spiked hair.
If there are gay-marriage opponents, they are keeping a low profile compared to those who support it. The first morning vigil outside the courtroom, which also served as a quiet protest for Prop 8 supporters, has not been repeated. Carla Hass, communications director for ProtectMarriage.com says even the defense's legal team is outnumbered. "Look at their table and their overflow chairs," she says, indicated the long table where the Ted Olson and David Boies team is seated. "We've got probably a dozen attorneys working on this, they've got at least 40." (The difference is even more distinct in the second-floor cafeteria at lunchtime, which is filled with gay-marriage supporters and lawyers trying to grab a bite between sessions, with few defense lawyers, or gay-marriage opponents in sight).
For nearly two hours on Tuesday afternoon, Professor George Chauncey, a Yale historian, gave the San Francisco courtroom presided over by Judge Vaughn Walker an overview of the history of discrimination against gay and lesbian Americans in the 20th century.
When Perry v. Schwarzenegger resumed on Wednesday morning, a defense lawyer, David Thompson, used examples — ranging from the success of the television show “Will and Grace” and the movie “Brokeback Mountain” to the support of gay civil rights from the state’s largest newspapers — to underscore the dramatic change in social attitudes toward gay men and lesbians in recent decades.
Mr. Thompson pointed out, as he questioned Professor Chauncey, that gay men and lesbians have the support of powerful Washington lawmakers like Representatives Nancy Pelosi and Barney Frank — who himself is gay — and Senator Barbara Boxer. He quoted a 2002 Gallup poll that found that while 44 percent of Americans said homosexuality was an unacceptable lifestyle, 86 percent said homosexuals should have equal rights.
He also pointed to the “widespread outrage” after the 1998 murder of Matthew Shepard, a gay student at the University of Wyoming and and asserted that, over all, there had been “a significant shift in public opinion toward acceptance of gay people.” ...
On the subject of anti-gay messages sent through the media over the decades — a subject Professor Chauncey had covered at length under direct examination — Mr. Thompson asked if the scholar agreed with a book excerpt that argued that the conduct of the Proposition 8 campaign showed a “sea change.”
Professor Chauncey answered, “I do think the Proposition 8 campaign and certainly its most official manifestation were more polite than the earlier campaigns, although they also drew on some of the fears that were resonant because of the earlier campaigns.”
Update 5:49 p.m. | On Wednesday afternoon, the plaintiffs’ lawyers changed the subject, focusing again on the issue of marriage. An earlier academic witness, Nancy F. Cott of Harvard University, had recounted the history of racial and other marriage restrictions. When Letitia A. Peplau, a social psychologist at the University of California, Los Angeles, took the stand she talked about marriage in more general terms.
Specifically, she sought to show similarity between gay and straight relationships. She also challenged the notion that legalizing same-sex marriage might have an negative effect on heterosexual unions.
Dr. Peplau told the court that the American Psychological Association has recently endorsed the idea that “satisfaction, stability and commitment is relatively the same between gay and straight.”
Dr. Peplau cited a study in the journal Demography that reported that 61 percent of lesbians said they were in “loving cohabiting relationships,” while 46 percent of gay men and 62 percent of heterosexuals of both sexes responded similarly.
“Is it true that gay relationships don’t last as long as straight ones?” the plaintiffs’ attorney asked.
Dr. Peplau responded that there is “no evidence, but it’s been suggested.” One reason, she said, could be “because marriage has a stabilizing form. Another is the stigma of homosexuals.”
But during cross-examination, a defense lawyer forced Dr. Peplau to address the issue of gay male promiscuity. The lawyer, Nicole Moss, cited a 25-year old paper in which Dr. Peplau wrote “sexual exclusivity may be more the exception than the rule in gay male relationships.” ...
Dr. Peplau replied that while she agreed “as a generalization that the percentage differs,” the paper was outdated. It may have been accurate only at a time when “gay relationships were much more secretive, there was much more of a stigma,” she said.
Earlier, in a rare, lighthearted moment that sparked laughter in the courtroom, a lawyer for the plaintiffs asked the psychologist what the effect the legalization of same-sex marriage would have on heterosexual marriage.
The professor replied dryly, “I have a hard time believing that a straight couple is going to say, ‘Gertrude we’ve been together for 30 years, but now we have to throw in the towel because Adam and Stuart down the street are getting married.’ ”