Jan 27 | last day of testimony:
As testimony in the trial over the fate of Proposition 8 drew to a close, the central question of “what is marriage” dominated the heated — and occasional unintentionally humorous — debate.
Early Wednesday, the final defense witness, David Blankenhorn, the founder and president of the Institute for American Values, again locked horns with David Boies, a leading lawyer for the plaintiffs seeking to overturn the ban.
At one juncture, Mr. Boies asked Mr. Blankenhorn whether some of the experts he had earlier cited as saying same-sex marriage would damage traditional marriages had voiced their opinion with absolute certainty or merely suggested it was “likely.”
Mr. Blankenhorn seemed annoyed. “The issue is always likely, Mr. Boies,” he said. “There is no certainty.”
Later, Mr. Boies questioned Mr. Blankenhorn on his belief in three so-called rules of marriages: that they must be made up of opposites (like man and woman), that marriages are made up of two people and that marriages involve sex. After a discussion of some anthropological cases of homosexual marriages in Africa and other cultures, Mr. Boies pushed Mr. Blankenhorn on whether he believed all marriages must fit that template.
Mr. Blankenhorn said he would speak carefully, saying “to be on the safe side,” that there were “no or almost no exceptions.”
Mr. Boies pressed for a more definitive answer. Mr. Blankenhorn didn’t respond.
After Mr. Boies asked again, a few in the packed courtroom began to giggle, and Mr. Boies smiled. “It’s not a laughing matter to me, Mr. Boies,” said Mr. Blankenhorn, seeming upset.
Judge Vaughn R. Walker, who is overseeing the trial, stepped in. “I don’t think he’s laughing at you,” the judge said. “He’s amused at the back and forth. As many of us obviously are.”
Mr. Blankenhorn later drew a surprised response from spectators, many of whom seemed to be siding with the plaintiffs, when he said that historical instances of polygamy in places like China and India did not technically violate the second rule — that marriage is between two people.
“Each marriage is separate,” Mr. Blankenhorn said. “One man and one woman.”
Both sides anticipate Wednesday to be the last day of a trial that began two-and-a-half weeks ago and initially featured reams of testimony from the plaintiff’s side, a pair of gay couples who say that Proposition 8, which California voters passed in 2008 and eliminated same-sex marriage, violates their constitutional right to due process and equal protection.
Judge Walker has said that the trial would take a break after testimony was heard to allow him time to digest the information; closing arguments will be set later.
The defense case, which began on Monday, has been slimmer but often more dramatic, with Mr. Boies, a celebrated courtroom litigator, conducting bruising cross-examinations, which sometimes lapsed into innuendo-laden territory.
At the start of a discussion of the third rule of marriage – that sex is always involved – Mr. Boies said that he didn’t want his questions to “want to fall into the trap of making sex boring.” Mr. Blankenhorn shot back. “Maybe together we can do that,” he said, prompting loud and embarrassed laughter in the courtroom.
Update | 3:47 p.m.
Moments after the gavel sounded in Judge Vaughn Walker’s courtroom just after noon on Wednesday, bringing witness testimony to an end in the Proposition 8 trial, lawyers from both sides (and there were plenty), cordially shook hands with one another. At one point, one junior partner asked another what he planned to do next?
“Rest,” was the answer.
Indeed, whatever one’s opinion of gay marriage, what is certain is that the two-and-a-half weeks of legal punch-counter punch was by turns riveting, dense, and often just plain exhausting. (Sleepy, and even closed eyes, were not uncommon among spectators after lunch).
Much of that goes back to methodical legal strategy: Lawyers for the plaintiffs wanted to build an evidence-heavy case not only for this court level, but for its expected journey to the Supreme Court. The defense’s approach, meanwhile, was also step-by-step (if noticeably more brief than the plaintiffs), as they walked their witnesses through testimony that was being simultaneously projected as a Power Point presentation on screens in the courtroom.
Add to that the high stakes—the right of a discriminated minority to marry, as the plaintiffs see it, or the rights of the states to define marriage, the defense’s position—and its not surprising that both sides were in need of a nap.
What helped fight fatigue, however, was the innate drama offered by cross examinations on both sides, including the type of questions that might make people uncomfortable in other surroundings.
On Jan. 11 (Day One), for example, Brian Raum, a defense attorney, asked Paul T. Katami, a plaintiff, if it was his opinion that “there’s nothing wrong” with same-sex marriages or relationships. Mr. Katami, who seemed to be fighting hard to control his emotions, said he said he found nothing wrong with them, even as Jeffrey J. Zarrillo, his partner and a co-plaintiff, sat silently in the courtroom.
Wednesday (Day 12) was no less gripping at times, such as when David Boies, who lead the plaintiff’s often grueling crosses, continually pushed defense witness David Blankenhorn, the founder and president of the Institute for American Values, to answer questions unequivocally. Mr. Blankenhorn seemed to chafe at the methods of Mr. Boies, saying he was trying to put words into his mouth and accusing him of setting up “Gotcha” moments.
At one point, Mr. Boies asked for “yes or no” answer regarding polygamy.
“I would give a lot if I could have 15 seconds to answer the question,” said Mr. Blankenhorn, seemingly exasperated.
“Go,” said Mr. Boies, as Judge Walker— presided with a sense of humor and an occasional annoyance at the sometimes slow pace-of-play—crossed his arms with a frown.
After his answer, Mr. Blankenhorn said to Mr. Boies: “How’d I do?”
“You did OK,” said Mr. Boies. And then continued to press his attack.
Considering the tension of moments like that, it was also not completely surprising that people periodically cracked up in the courtroom, sometimes snickering at exchanges between witnesses and questioners. On Wednesday, when Mr. Boies said he’d turn his questioning to “sex,” in reference to marriage, Mr. Blankenhorn chimed in: “That’s a good subject.” Awkward giggles were heard.
Still, after testimony concluded on Wednesday, Judge Walker seemed genuinely impressed, calling the case “fascinating,” and praising both the “old hands in the courtroom” and the younger lawyers who filled other seats at the table. But even Judge Walker, who likely won’t hear final arguments until at least March, seemed to need a little break from the action.
“I’d like to take some time,” he said, “to go over all the material.”
Jan 28 | Press conference
Soon after the defense team in Perry v. Schwarzenegger rested its case at noon on Wednesday, lawyers on both sides held back-to-back news conferences on the first floor of the federal courthouse in San Francisco. After two-and-a-half weeks of often contentious testimony and questioning, both sides declared they had presented strong cases on whether Proposition 8, the voter-approved ban on same-sex marriage is constitutional.