When Proposition 8 was fought at the ballot box in California to deny the newly-minted right to marry for gay and lesbian couples, those leading the charge were mainly religious. The Mormon Church gave more than $180,000 in efforts to repeal the new marriage law. That was peanuts though compared to the nearly $730,000 in cash and services provided by Colorado-based Focus on the Family and the $1.275 million given by the Catholic Church group the Knights of Columbus.
The religious argument against marriage equality for gays and lesbians may have won the round at the ballot box, but in the San Francisco courtroom where the legal battle to overturn Prop. 8 wraps up its first week, religion has been largely absent. Religious arguments don’t hold a lot of legal water, so anti-marriage equality proponents are forced to use their secular arguments, and reading reports from the courtroom (since the U.S. Supreme Court nixed video coverage of the trial), they’re leaking fairly badly as well.
Without being able to argue that God ordained one man and one woman for life (never mind all that Old Testament polygamy) and so we cannot deviate from that pattern, those opposed to same-gender marriage are instead focusing on issues like parenting, economic impact, discrimination, and child rearing.
In their opening arguments, defense attorneys laid out their case:
Charles Cooper, the lead attorney for the Proposition 8 defense (…) is hitting the main points in the defense: that the voters have spoken on the issue, and gay couples in California enjoy strong legal protections under domestic partnership laws. (…) Cooper finished his opening statement, defending the need for society to preserve the traditional definition of marriage and limit it to heterosexual couples for its procreative purposes. He told the judge that marriage must be “pro-child,” and that would be at risk if same-sex couples were allowed to marry. Cooper insisted that the courts should stay out of the issue and allow the voters to decide whether they want to allow same-sex marriage, but the judge questioned that thesis. “There are certainly lots of issues taken out of the body politic. Why isn’t this one of them?” the judge asked at one point.
Throughout the week, the plaintiff’s lawyers have taken a whack at each of those issues, and more. Harvard University historian Nancy Cott was the first to dismiss the idea that marriage should be reserved for procreation.
Her task to start the second day of trial is to knock down one of the central arguments of gay marriage foes: that the state has a compelling interest in restricting marriage to heterosexual couples because of the procreative purpose of marriage.
Asked by plaintiff’s attorney Theodore Boutrous whether procreation is a central purpose of marriage, Cott scoffed, nothing that President George Washington, “the father of our country,” was sterile by the time of a later marriage.
“Procreative ability has never been a qualification for marriage,” she testified.
It was on her cross examination by Prop. 8 attorney David Thompson that Jesus made an appearance:
Thompson is challenging one of Cott’s ideas that modern marriage laws are shaped now by civil law and social developments; the defense attorney is pushing hard on the anti-gay marriage thesis that heterosexual marriage is tied to history and religion restricting unions to men and women. He repeatedly suggested in his questions that marriage laws are tied to Christianity. At one point, asking Cott about monogamy being the result of the teachings of Jesus and his apostles, the professor got a little impatient. “I know very little about Jesus Christ and his apostles,” Cott shot back at Thompson.
Certainly, Cott should not need to know about Jesus and his apostles to make the case that marriage should be open to same-gender couples. While marriage between a man and woman has been tradition, so has the idea that women are the property of men. Much of the “tradition” of marriage has changed over the course of history. Opening up marriage to same-gender couples certainly won’t destroy marriage, and according to UCLA professor Letitia Peplau, it won’t affect heterosexual marriages:
Peplau… noted that even if gay marriage is allowed, only about 2 percent of all marriages in the nation would be same-sex. “I think it would have no impact on the stability of heterosexual couples,” Peplau testified.
The defense was really grasping for religious straws, however, during cross examination of George Chauncey, a Yale University expert on the history of discrimination against gays and lesbians. Chauncey laid out “how gays and lesbians have been discriminated against and demonized through much of the first half of the 20th century.”
(They were) the target of criminal enforcement by local police whenever they gathered. “They had to hide the fact they were gay,” he testified, describing sweeps of bars where gays and lesbians were found. Chauncey then moved forward in history, through banning gays from the military at the outset of World War II and up through employment discrimination in more modern times. (…) (He testified) about the public campaigns “demonizing” gays and lesbians for decades, from newspaper accounts in the 1930s to Anita Bryant’s famous campaign against homosexuality during the 1970s.
Prop. 8 attorney Thompson tried to show that gays and lesbians don’t have it as bad as they say they do, pointing to a growing tolerance of homosexuality in society. Laughably, his examples were the popularity of the TV show Will & Grace and the movies Brokeback Mountain and Philadelphia. It got even more absurd when Thompson tried to argue that religious groups were even becoming more accepting and tolerant:
Chauncey has pointed out that the religious groups he (Thompson) cited—MCC, Unitarians, etc.—are not the majority of Christian groups.
Chauncey: “There’s a growing debate [in religions], but most religious groups are not with us.”
Thompson: “Most evangelicals oppose same-sex marriage, but isn’t it true that demonization of homosexuals has become less accepted?” Now, they’re showing some video footage of Pastor Rick Warren—who said that everyone should be accepted and show “common grace to each other” but we shouldn’t be “redefining marriage.”
As the week wrapped up, the discussion turned back to children as the plaintiffs sought to show that gays and lesbians, while not “pro-creative” themselves, do often have children through previous marriages, adoption, or artificial insemination procedures, and they make for good parents.
It is pretty clear why the plaintiffs have Cambridge professor Michael Lamb on the stand as an expert. He quickly got to the opinions he’ll outline on gay parenting, saying there is “substantial evidence” that children raised by same-sex couples “are just as likely to be as well-adjusted as children raised by heterosexual parents.” The testimony is designed to undercut one of the fundamental arguments against same-sex marriage: that it undermines traditional heterosexual marriage and its role in child-rearing. Indeed, there already has been ample evidence in the trial that the Prop. 8 campaign warned voters that gay marriage was an outright threat to children generally.
The only thing Prop. 8 attorneys had to try to discredit Lamb was to reveal his membership in the ACLU, NOW, the NAACP, and his tendency to contribute money to PBS.
For all the religious wrangling before last November’s vote on Prop. 8, the religious examples put forth in the courtroom so far have fallen flat—touting the unmarried Jesus as a model for monogamy and the toleration of gays and lesbians by liberal churches. Instead, the trial so far has shown that far from causing the downfall of civilization and further secularization of our nation, allowing marriage equality for gays and lesbians will help our society economically and socially, result in less discrimination, and perhaps bring more well-adjusted children into the world. Why, in God’s name, would anyone oppose that?
