Prop 8 Marriage Trial Update: New Developments

ACLU and Equalty California Turn Over Documents
Closing Arguments Set for June 16

by William B. May

SAN FRANCISCO, May 4, 2010 -- While the marriage trial in the San Francisco Federal District Courtroom of Chief Judge Vaughn Walker has been in recess since January 27, there have been some very important behind-the-scenes struggles that could have consequences for the outcome of the trial and for subsequent appeals, possibly heading all the way to the Supreme Court.

For those who have been following the trial with us, you know that this whole process has been surreal. It is absurd to think that marriage, the foundation of the family and society, can be defined by a court trial with witnesses and evidence. But, that is what the plaintiffs, two same-sex couples, are trying to do in this case. Their contention is (just as the No on Prop 8 campaign has contended) that there is no rational reason to retain marriage as an institution between a man and a woman. Thus, they contend, the only reason the voters passed Prop 8 was animus and bigotry against gays and lesbians.

One thing the media has not reported is that after the last witness was called, and the plaintiffs submitted volumes of new evidence in January, our side, the Prop 8 defense, did not rest. There was a lot of unsettled business and the attorneys representing the voters who passed Prop 8 still have the right to call more witnesses and submit more evidence.

Unequal Treatment for Prop 8 Defense

There have been many examples of unfair and uneven treatment of the Prop 8 defense throughout the trail, but one point that should have been resolved before the trial began on January 11, was the request by defense attorneys for the ACLU and Equality California, the lead opponents of Prop 8, to turn over documents as part of the discovery phase of the trail.

The Prop 8 campaign had been required to turn over their documents in the fall of 2009. However, it was not until March 5 that the court finally ordered the ACLU and Equality California to turn over their documents. Understandably, they started crying bloody murder and began an appeals process during which Judge Walker granted their request for a stay of the discovery order—a request that he denied to our side last fall pending appeal. By the way, Yes on 8 won the appeal protecting sensitive internal strategy documents, but ultimately had to turn over communications with coalition members and Prop 8 supporters.

In the meantime, the judge indicated his intent to close the evidence part of the trial on May 16, and asked Prop 8 attorneys to show cause why he should not. At that point, Prop 8 attorneys asked the judge to remove the stay and hold the ACLU and Equality California in contempt for not complying with the order. It forced the judge’s hand and, seeing the handwriting on the wall, the ACLU and Equality California finally started turning over documents last week.

Date for Closing Arguments Set

Judge Walker has tentatively set closing arguments for June 16, so the Prop 8 attorneys have very little time to comb through the thousands of documents they are just receiving and decide if they will seek to call more witnesses and enter more evidence into the record.

No evidence of animus toward gays and lesbians on the part of the Prop 8 campaign has been demonstrated in this trial. However, the Prop 8 attorneys did raise the question in a trial brief that “many opponents of Proposition 8 voiced opinions and engaged in actions that plainly reflected animus against religious organizations and individuals as well as other supporters of Proposition 8 and may well have provoked a backlash in support of Proposition 8.” It will be interesting to see what ACLU or Equality California documents reveal.

Mobilize to Promote Marriage

For supporters of traditional marriage, anti-religious bigotry, to the extent it exists, is painful and threatening, but must not distract us from our mission. Our focus must remain on promoting the centrality and integrity of marriage for children and society.

We are not in opposition to anyone, but in solidarity with the common interest of every child without exception to know and be cared for by his or her mother and father—a mother and father who are committed to each other and committed to them. This is what is commonly known as traditional marriage. As marriage is increasingly being redefined as merely a committed relationship for the benefit of adults, fewer young people see the relevance of marriage to children and family. This problem is touching every family, and children are the victims. We must maintain solidarity with them as they cannot represent their own interests.

Join the Stand with Children campaign. Learn how to promote the reality of marriage among family and friends, and help people resist the influences of the culture that undermine marriage and the family (

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