By Steve Williams
On Friday, lawyers in the Perry v. Schwarzenegger Proposition 8 trial submitted their case summaries as per Judge Vaughn Walker’s request. Both sides are said to have included their most hard-hitting points, including a claim from the Proposition 8 defense that bisexuals in particular constitute a threat to marriage.
Firstly, for the plaintiffs seeking to overturn Proposition 8, California’s 2008 gay marriage ban, lawyers David Boies and Theodore Olson submitted a document in excess of 290 pages, aiming to prove that Proposition 8 is unconstitutional. From the American Foundation for Equal Rights:
“This 294-page filing is only a summary of the overwhelming evidence against Proposition 8,” said Chad Griffin, Board President of the American Foundation for Equal Rights. “The evidence proves beyond a doubt that Proposition 8, which separates Americans into unequal groups, violates the U.S. Constitution and causes incredible harm to individuals and our nation as a whole.”
The document outlines the following as the core of the plaintiff’s case:
Prop. 8 does irreparable harm to Americans
Marriage has shed discriminatory restrictions over time
Gay men and lesbians are entitled to the full protection of the 14th Amendment
There is no good reason for Prop. 8’s denial of fundamental civil rights
The summary also points out the unequal weight of testimony provided in the case. The plaintiffs in the Perry v. Schwarzenegger trial called on 16 witnesses (including Paul Katami & Jeff Zarrillo and Kris Perry & Sandy Stier, the couples who filed the original lawsuit) whereas the defendant-intervenors Protect Marriage were only able to present two witnesses after their other four dropped out ahead of the trail, claiming that they were likely to face intimidation for their stance against gay marriage.
According to the American Foundation for Equal Rights, the summary presented by the plaintiffs also points to the fact that, during several occasions during the trial, the two remaining defense witnesses - both of whom had their status as “experts” put in question - appeared to make the case for marriage equality in spite of their apparent stance against it:
In addition to outlining the evidence presented by Olson and Boies, the document outlines the devastating admissions made by the defendant-intervenors’ witnesses that further proved our case and undermined the Proponents’; those witnesses’ lack of credentials; and evidence on the utilization of messages of pedophilia, polygamy, incest and bestiality in support of Prop. 8.
You can access the full document by going here.
Like so much of the pro-Proposition 8 side’s material, tracking down a copy of their summary for public viewing is proving difficult (if you have come across the text, please let me know).
However, reports suggest that the pro-Prop. 8 side have not included much of their witness testimony in their summary, at least not for supporting their central argument, and have instead cited research documents that, they assert, prove that “extending marriage to same-sex couples would result in a profound change to the definition, structure, and public meaning of marriage.”
However, calling on the testimony of Professor Miller, their first witness, they advance that lesbian, gay, bisexual and transgender people do not constitute a protected class worthy of judicial intervention, and that LGBTs have political allies and sufficient political power so as not to be classed as a vulnerable group.
Using their other witness testimony provided by David Blankenhorn, the pro-Prop. 8 side are said to have reinforced that marriage hinges on gender roles of “maleness and femaleness” and that procreation is a key element to marriage. Therein, they argue that child rearing is best served by the heteronormative family unit and that this fact means that marriage must, by necessity, exclude same-sex couples.
Perhaps one of their most startling maneuvers in the defense’s summary is where they are reported to have singled out bisexual people as one of the reasons to deny same-sex couples marriage rights:
The potential harms they cited included giving bisexuals a legal basis for pursuing group marriages and unmarried fathers an incentive to abandon their children.
While a copy of the summary text itself has not been forthcoming, text from the defendant-intervenors’ original trial brief also includes this argument:
[Allowing same-sex marriage would] increase the likelihood that bisexual orientation could become a legitimate grounding for a legal entitlement to group marriage.
They did not stress this point in the trial any more than the rest of their slippery slope polygamy arguments, but it is interesting that they have returned to it here.
Under California law, “Only the marriage of a man and a woman is valid or recognized in California” as per Proposition 8 and this, the defense say, guards against the much maligned “group marriage.”
The argument goes that, should same-sex marriage be legalized once again in California, there would be a potential legal basis for a bisexual person to seek recognition for a marriage to both a male and female spouse (one man and one woman) at the same time, leading to a multi-partner marriage.
As far as I can see it, this argument is flawed as California marriage laws clearly state that you can’t enter into marriage while still married to another adult. From the California Department of Public Health website:
“To marry in California, the two parties may not be already married to each other or other individuals.”
Amending civil marriage laws to include same-sex partners does not overturn this aspect of the family code.
However, the defense appear to be arguing that once you grant equal access to marriage for same-sex couples, the next logical and inevitable step is granting multi-partner marriage, and that bisexuals would be the gateway for this.
This relies on the assumption that a bisexual would want more than one spouse because of their attraction to both sexes, and seems to infer that bisexuals are less capable of monogamy than heterosexuals, which is actually broadly offensive and blurs the line between sexuality and the useful social convention of monogamy to an extreme.
It will be interesting to see if the pro-Proposition 8 side revisit this argument as part of their closing statement, which, although as yet unscheduled, is likely to be heard in the next few months.
Go to Website
