Wednesday, January 27, 2010

Perry v. Schwarzenegger, Prop 8 Trial Evidence Ends

The trial proceedings of the Proposition 8 trial ended with the judge's compliments, familiar to anyone who has ever been involved in a federal trial, if slightly modified in this situation:

THE COURT:  Well, I want to extend my congratulations to the lawyers in the case for, obviously, a fascinating case.  Extremely well-presented on both sides. Obviously, there are some old hands in the courtroom in this proceeding.  But I have been particularly struck by the very fine work of many of the younger lawyers in the case, both here in the courtroom and, I'm sure, behind the scenes.

It really -- the old hands should take great pride and pleasure in the younger colleagues that you've worked with.  They have done a splendid job, and so you have much to be pleased with. And I would just like to take a moment to personally congratulate you and tell you what a good job you've all done.

After thank-you responses from Cooper, Boutrous, and Boies, the “proceedings” of the so-called “Proposition 8” trial were adjourned at twelve noon, on Wednesday January 27, 2010, after twelve (or eleven and a half) days and almost 3,000 pages of transcript, available here.

The  trial had resumed Monday (our last post here) with evidentiary questions and the plaintiffs’ concluding their case with the introduction and playing of videos of simulcasts from the Proposition 8 sponsors,, in which the well-known analogies of same-sex marriage to polygamy and bestiality were featured, as well as the less well-known analogy of same-sex marriage to the World Trade Center attacks.

Then the defendant-proponents presentation began.  (As a reminder, the defendants presenting are not the named defendants of the state of California, but the proponents of the Proposition 8 ballot initiative.) The Picture 3Kenneth Miller (pictured left) associate professor in Government at Claremont McKenna  College.  Miller, who also has a law school degree, is the author of Direct Democracy and the Courts, published last year by Cambridge University Press.  The book asks the very question that is at the heart of the litigation: "Who should have the last word on fundamental policy issues? This book analyzes the rise of two contenders – the people, through direct democracy, and the courts."   The cross examination of Miller by Boies was extensive, centering on Miller's knowledge of LGBT issues and how much such issues have played a part in Miller's work, as well as surfacing some of Miller's criticisms of initiative processes.  

By Tuesday, Blankenhorn the Proposition 8 proponents called their second and final witness, David Blankenhorn, (pictured right) the president Institute for American Values and author of Fatherless America. Blankenhorn's testimony on direct was directed to the issue of the universality of opposite sex marriage and the effect on marriage of allowing same-sex couples to marry.  The cross-examination, again by Boies, began late in the day and continued on Wednesday morning. By all accounts this was a rather testy cross-examination, with questions regarding Blankenhorn's qualifications, his knowledge of the literature, and the specificity of his conclusions regarding the effects on traditional marriage.

The closing arguments remain to be scheduled.


Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, News, Sexual Orientation, Sexuality | Permalink

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