"8": A Play about the Fight for Marriage Equality


Uploaded by AmericanEqualRights on 03.03.2012

Transcript:
girl: Mom, guess what I learned in school today?
mom: What, sweety? girl: I learned how a prince
married a prince, and I can marry a princess.
Peterson: Think it can't happen?
It's already happened.
When Massachusetts legalized gay marriage,
schools began teaching second graders
that boys can marry boys.
The courts ruled parents had no right to object.
woman: Under California law, public schools
instruct kids about marriage.
Teaching children about gay marriage
will happen here unless we pass Proposition 8.
Yes on 8.
Spencer: Kris and Sandy, one night after work,
had us sit down in the family room, which they never do,
so of course we knew something terrible was going to happen,
or something really fun.
So we sat down, and Kris was like,
"I was approached and asked
if I wanted to be a part of this case."
And I'm--"Okay, what case?"
And she says it was whether to see if Proposition 8
was unconstitutional or not.
Elliott: But I would have soccer practice and soccer games
throughout the entire week.
Then also be playing club soccer,
so it was basically I would have to miss a lot of that.
Spencer: And I'm a competitive fencer, so...
You associate the word "activism" with people who--
you know, with signs-- Not extremists,
but people who-- When I think of Kris and Sandy,
I think of people who, not humble,
but, you know, people that don't want to force
their views on people.
Elliott: I mean...we thought our parents were married.
Spencer: Yeah.
Elliott: That's how they explained it to us.
So when we think of marriage, we think of Kris and Sandy.
We think of our parents.
But I know for a fact
that there's a lot of kids in my school
who don't want to see them as married.
Spencer: So what do we expect?
I mean, I've never been in a courtroom
where my parents are testifying against their own government.
Um, I honestly can't tell you.
Because I think they might be shattered
with what's gonna happen.
clerk: Calling civil case 09-2292,
Kristin Perry versus Arnold Schwarzenegger.
Appearances, Counsel, please.
[applause]
[cheers and applause]
man: Say "all rise." clerk: All rise.
[cheers and applause]
journalist: On Election Day, 2008,
Californians voted in favor of Proposition 8,
thus rewriting the California State Constitution
to add a ban on marriage for gay and lesbian citizens
who were already enjoying that right.
Well, now two lawyers, most famous
for representing opposing sides of Bush v. Gore
have teamed up to take Proposition 8
to federal court.
Olson: Good morning, Your Honor.
Theodore B. Olson on behalf of the plaintiff.
Walker: Good morning.
Boies: Good morning, Your Honor.
David Boies on behalf of the plaintiff.
journalist: Chief Judge Vaughn Walker,
a Republican appointee, agreed with Mr. Boies and Mr. Olson
that the case could be broadcast,
but the defendants, the opponents of gay marriage,
turned to Charles Cooper.
Cooper: Good morning, Mr. Chief Judge.
Charles Cooper for the defendant-interveners.
journalist: Mr. Cooper filed an appeal
with the U.S. Supreme Court, which was successful,
and the Supreme Court blocked plans
to broadcast the trial.
And thus, the nation was denied access to the testimony
of plaintiffs Jeff Zarrillo and Paul Katami
and Sandy Stier and Kris Perry.
But the transcripts of this trial
could not be hidden.
And on June 16, 2010, the closing arguments
of this historic case commenced.
These are the words, the witnesses, the testimony
and the trial the defenders of Proposition 8
have fought so hard to keep from public view.
Spencer: Mom, mom! Right here.
Kris: Did you get through security okay?
Spencer: Yeah, obviously.
Sandy: So why didn't you come in with everyone else?
Elliott: They took us in a back way,
around all the press.
Spencer: Did you talk to any of the cameras?
Kris: Yeah.
Spencer: And?
Sandy: I just said this case is about us as Americans
wanting to be treated equally by our government.
And, under the law, we are going into court today
with that simple request.
Spencer: You did it like that?
[laughter]
Sandy: What's wrong with that?
Elliott: I mean, you seem really nervous.
Kris: Come on. Cell phones off.
Come on, let's go find our seats.
Elliott: Wait, will we be done in time for soccer practice?
Kris: I'm not sure. Come on. Let's go. Let's go.
Elliott: What do you mean you're not sure?
Sandy: Who knew we were gonna have to go
through an actual trial, Elliott?
I mean, who knows what we're gonna have to do today,
because, personally,
I have never sued Arnold Schwarzenegger before.
[laughter]
Now move it.
Walker: Obviously, the hiatus that we've had is not anything
that I would have hoped for.
But it may be appropriate that the case is coming
to closing argument now.
June is, after all, the month for weddings.
So I would simply propose
that we get right to business.
Mr. Olson, are you leading off for the plaintiff?
Olson: I am, Your Honor. May it please the court.
We conclude this trial, Your Honor, where it began.
This case is about marriage and equality.
The fundamental constitutional right to marry
has been taken away from the plaintiffs
and tens of thousands of similarly-situated Californians.
This state has rewritten its constitution
in order to place them into a special disfavored category
where their most intimate personal relationships
are not valid, not recognized, and second rate.
I'm going to, with your permission, Your Honor,
play some excerpts from the testimony of the plaintiffs.
Clerk: Raise your right hand.
Do you swear to tell the truth,
the whole truth, and nothing but the truth?
all: I do.
Olson: Would you tell us briefly
about your background?
Kris: I was born in Illinois, but my parents moved here
with me when I was two years old.
Sandy: Well--well, I grew up on a farm
in southern Iowa.
Going to public schools.
Kris: I am the executive director of a statewide agency
that provides services and support to families
with children zero to five.
Olson: Now today, you are in a committed relationship
with another gay man, correct?
Paul: I have found someone that I know
I can dedicate the rest of my life to.
And when you find someone
who is not only your best friend
but your best advocate
and supporter in life, it's a natural next step
for me to want to marry that person.
Jeffrey: March will be nine years.
Kris: Sandy and I live together
in Berkeley with our children.
Sandy: We each bring two biological children
to our family and each other.
Our two younger sons in high school.
Kris: I remember the first time I met Sandy,
thinking she was maybe the sparkliest person
I ever met.
[laughter]
And our friendship became deeper
and deeper over time,
and then, after a few years,
I began to feel that I might be falling
in love with her.
Olson: And how did she feel about you?
Kris: Well, she told me that she loved me too.
Olson: We will be asking her to verify that.
Kris: Okay. [laughter]
Jeffrey: It's always an awkward situation
at the front desk at a hotel.
The individual working at the desk
will look at us perplexed.
"You ordered a king-size bed.
Is that really what you want?"
It was certainly an awkward situation
walking into the bank and asking--saying,
"My partner and I want to open a joint bank account,"
and hearing, you know, "A business account?"
Paul: "An LLC or an S Corporation?"
"No, not my business partner. My partner."
Being able to call him my husband is so definitive.
It's something that everyone understands.
Kris: I'm a 45-year-old woman,
and I have been in love with a woman for ten years.
And I don't have a word to tell anybody about that.
Jeffrey: The word "marriage" has a meaning.
If it wasn't so important, we wouldn't be here today.
Kris: It symbolizes maybe the most important decision
you make as an adult-- who you choose.
Paul: Unless you have to go through that constant validation
of self, there's no way to really describe how it feels.
I love Jeff more than myself.
And being excluded in that way is so incredibly harmful to me.
I can't speak as an expert.
I can speak as a human being that's lived it.
man: Opponents of Prop 8 said gay marriage
has nothing to do with schools.
Then a public school took first graders to a lesbian wedding,
calling it a teachable moment.
Now this politician says schools aren't required
to teach about marriage,
yet his official Web site confirms teaching marriage
is required in 96% of schools.
And a leading Prop 8 opponent has warned
parents cannot remove children from this instruction.
Unless we vote Yes on Proposition 8,
children will be taught about gay marriage.
Gavin: Whether you like it or not.
[laughter]
Olson: Your Honor, the words they put into the hands
of California voters
focused heavily on: protect our children.
Protect our children from somehow learning
that gay marriage is okay.
That there is something wrong, sinister,
or unusual about gays, and their relationships are not okay
and decidedly not suitable for children.
For obvious reasons, however, the "gays are not okay" message
was largely abandoned during this trial in favor
of procreation and deinstitutionalization themes.
And I submit that the overwhelming evidence
in this case proves that allowing persons
to marry someone of the same-sex will not, in the slightest,
deter heterosexuals from marrying or from having babies.
Walker: Well, they have identified a difference
between opposite-sex and same-sex couples
in that opposite-sex couples can procreate
without the intervention of some third party.
Why is that difference not one
that the voters could rationally take into account?
Olson: Your Honor, you would have to make some statement
that allowing these other individuals to engage
in the institution of marriage will somehow stop
that procreation or stop people from getting married
or cause them to get divorced.
If we had time, Your Honor, I could not present
a more compelling closing argument
than simply replaying the testimony
in its entirety of the four plaintiffs.
But we have so much more.
There are eight experts, Your Honor, persons who have studied
and written about American history, marriage, psychology,
sociology, economics, and political science.
Professor Cott, for example. An expert in marriage.
Cott: Marriage, the ability to marry, to say, "I do,"
is a basic civil right.
It expresses the right of a person
to have the liberty to consent validly.
And this can be seen very strikingly
in American history through the fact that slaves
lacked that very basic liberty of person to say,
"I do," with the force that "I do" has to have.
Boies: And what happened when slaves were emancipated?
Cott: When slaves were emancipated,
they flocked to get married.
It was said by an ex-slave
who had also been a Union soldier,
"The marriage covenant is the foundation
of all our rights."
Meaning that it was the most everyday exhibit
of the fact that he was a free person.
Boies: No further questions, Your Honor.
Walker: Mr. Cooper, you may cross-examine.
Cooper: In the 19th century many Americans engaged
in informal marriages, correct?
Cott: That is true.
Cooper: And pregnancy or childbirth was the signal
for a couple to consider themselves married, correct?
Cott: Well, not always. Sometimes.
Cooper: Well, let's look at Public Vows, your book,
which has been admitted, page 31.
Cott: Page 31 you said?
Cooper: It reads in part,
"Marriage frequently followed upon a sexual relationship
"between a man and a woman proving fruitful,
"rather than preceding it.
"Pregnancy or childbirth was the signal
for a couple to consider themselves married."
You believed that when you wrote these words, didn't you?
Cott: Well, yes, but, as I said,
frequently, not always.
Cooper: And you provided a statement
to the Vermont legislature
when it was considering same-sex marriage?
Cott: Not to the legislature.
To their joint judiciary committee.
Cooper: I see. And, when you provided
that statement in Vermont, the law that resulted
was a compromise between Catholics--
gave something to Catholics and other conservative groups
and something to the LGBT community, is that correct?
Cott: It did state in its first line,
"Marriage is between a man and a woman."
And then it went on to grant a civil union arrangement
that gave all the rights and benefits
to same-sex couples...yes.
Cooper: Your Honor, we have no further questions.
Thank you, Professor.
Jeffrey: A civil union?
A domestic partnership would relegate me
to a level of second-class citizenship,
maybe even third-class citizenship.
It doesn't give due respect to the relationship
that we've had for almost nine years.
Only a marriage could do that.
Paul: "Husband" is definitive.
It's something that everyone understands.
There is no subtlety to it.
It is absolute, and it comes with the understanding
that your relationship is not temporal,
it's not new, it's not something
that could fade easily.
We would love to have a family, but the timeline for us
has always been marriage first,
because it solidifies the relationship.
And we gain access to that language that is global,
where it won't affect our children in the future.
They won't have to say,
"My dad and dad are domestic partners."
Because, truth is, not everyone knows
what a domestic partnership is.
We want our children to be protected
from any awkwardness like that.
We want to focus on raising our kids.
[applause]
Meyer: [clears throat]
I think it's quite clear that the young children
do not aspire to be domestic partners.
Uh... [laughter]
For young people, and certainly for people later on,
marriage is a desirable and respected type of goal that,
if you attain it, it's something
that gives you pride and respect.
Boies: Dr. Meyer, as one of the leading experts
on stigma and discrimination, do you have an opinion
as to whether domestic partnerships
enjoy similar symbolic and social meaning?
Meyer: In my mind,
Proposition 8, in its social meaning,
sends a message that gay relationships
are not to be respected, that they are of secondary value,
if any value at all, that they are certainly not equal
to those of heterosexuals.
And, to me, that's-- in addition
to not allowing gay people to marry, it also sends
a strong message about the values of the state,
and, in this case, the Constitution itself.
Cooper: Are you aware that same-sex marriage
has been legal since 2004 in Massachusetts?
Meyer: Yes.
Cooper: Do LGB individuals
suffer from a lower prevalence of mental health disorders
in Massachusetts than in California?
Meyer: Well, the first answer is...
I don't really know.
But that's not how-- Um, I wouldn't expect it
exactly in that way that you are suggesting,
that that would be the test of that,
because Massachusetts is not-- an isolate of the United States.
And, certainly, I would think that people in Massachusetts
who are gay would feel more supported
and welcome, so to speak--
Cooper: But your answer is you don't know, correct?
Meyer: Well, I don't-- I don't have data on that.
Cooper: You don't have data?
Meyer: No. Right.
Cooper: Okay, okay, do LGB individuals suffer
from a lower prevalence of mood, anxiety,
and substance use problems
in Massachusetts than in California?
Meyer: Again, I don't know of a study
that compared California to Massachusetts
on any of those outcomes.
Cooper: Okay, okay.
And I was planning to ask you about the other outcomes,
but the answer would be the same, right?
Meyer: Right.
Cooper: No further questions, Your Honor.
journalist: With us today from New York and Virginia
we have Evan Wolfson, whose work is focused
on winning "marriage equality," and Maggie Gallagher,
who is President of the National Organization for Marriage.
[laughter]
Now... [applause]
Mrs. Gallagher, is it correct that you believe--
Gallagher: Here's the bottom line.
[laughter]
Not only do the majority of people,
but the majority of courts have recognized
that gay marriage is not a civil right.
The majority of people believe that it's a civil wrong.
Same-sex unions are not marriages.
And, yes, you have the right to live as you choose,
you may even need some benefits or some protections--
Wolfson: "May even"?
Gallagher: But you do not have the right to redefine marriage.
Wolfson: Yeah, but, see, we're not redefining marriage.
Gallagher: You are, Evan. You have to be in reality.
Wolfson: Please don't interrupt.
Gallagher: For the majority of American--
for a majority of Americans, you are redefining marriage.
Wolfson: The same groups that funnel their money
through Maggie Gallagher's organization are opposed
to partnerships and civil unions
and every other level of respect--
journalist: Maggie, is it true
that you oppose civil unions as well?
Gallagher: The National Organization for Marriage
does not take a direct issue on civil unions.
However, we would if it were interfering--
journalist: So if there were a ballot issue that said gays
can have civil unions, would you back off and stay out--
Gallagher: Let me just say,
our focus is on the marriage issue
and on the religious liberty consequences of other kinds
of benefits and protections--
Wolfson: Right! And what I said was that the same funders
who are funneling their money through this organization
are opposed to partnerships
and every other measure of respect, and--
Gallagher: Evan, the National Organization--
Wolfson: May I finish?
Gallagher: I have fought for the marriage issue for 25 years,
Evan, because I believe the ideal for a child
is a married mother and father.
Marriage is not a relationship invented by the government.
Marriage is a social institution
with deep roots in nature--
Wolfson: Listen, Mrs. Gallagher, you're entitled
to believe whatever you want.
What I said is that the funders
who funnel their money through--
Gallagher: You do not believe--
That is not true, Evan.
Wolfson: Please stop interrupting. Please.
You're under investigation
for violating campaign laws
in three states, and you know that.
Gallagher: We obey the laws of this country.
Wolfson: Then why are you under investigation
for flouting those laws?
[applause]
Olson: Your Honor, the plaintiffs
are in the same position as Mildred Jeter
and Richard Loving, who in 1967 had no interest
in diluting the institution of marriage.
They only wanted to marry the person they loved,
the person of their choice,
who happened to be a person of a different race.
That's all the plaintiffs desire, the right to marry
the person they love, the person of their choice,
who happens to be of the same sex.
Walker: Well, now, the Supreme Court decided
that the issue which we are confronted with here
was not ripe for the Supreme Court to weigh in on.
That was 1972.
What's happened in the 38 years since 1972?
Olson: The Supreme Court in Lawrence vs. Texas
reversed Bowers vs. Hardwick with a 6-3 decision.
And the majority of that opinion,
Justice Kennedy and four other justices,
decided that case on the basis of due process.
Walker: The statute in Lawrence was a criminal statute.
Olson: Yes.
Walker: The denial of the right to marriage
of same-sex couples doesn't have any criminal sanction.
Olson: I submit it doesn't make any difference.
Our fundamental rights cannot be taken away
unless the state has a very, very fundamental,
strong, compelling reason to do so,
and it acts with surgical precision so that it takes
no more than the compelling reason justifies.
We are talking about a group of individuals who meet
every one of the standards for suspect classification.
They are a minority.
There wasn't any dispute about that.
It's an immutable characteristic.
The witnesses said that.
Kendall: I was a very precocious kid.
So one day I ended up looking up the word "homosexual"
in the dictionary.
Something along the lines of a romantic attraction
between members of the same sex.
And it slowly dawned on me that that's what I was.
Boies: So, given your prior testimony about homosexuals,
how did you feel when you realized that you were gay?
Kendall: Well, once I realized what a homosexual was,
I was scared by that.
I realized that this was bad news for me.
So I hid it as far away from everyone as I could.
Boies: Around this time, did you talk
to anyone about being gay?
Kendall: When I was in the seventh grade,
I remember being taunted about being gay.
I was called faggot. I was called a homo, a queer.
It was scary going into that building,
realizing these kids were taunting me with a word
that was so close to the truth.
I would go home crying.
Boies: Did your parents ever find out that you were gay?
Kendall: When I was 13 years old,
my parents discovered my journal.
And for the first time I had admitted
to myself that I was gay.
And I had actually written those words.
And they found that and read it.
Boies: And what happened when they read that journal?
Kendall: They were very upset. They were yelling.
I remember my mother looking at me and telling me
that I was going to burn in hell.
It was shocking.
I had never heard anything like that from my mother.
I mean, you don't get much worse than eternal damnation.
Boies: And what is NARTH?
Kendall: NARTH stands for the National Association
for Reparative Therapy of Homosexuality.
It's a reversal therapy organization
based in Encino, California.
Boies: Mm-hmm. And how long were you at NARTH?
What ages?
Kendall: 14 to 16.
Boies: And, during the time that you were at NARTH,
how was your home life?
Kendall: Um...
my mother would tell me that she hated me.
Once she told me that she wished
she had had an abortion instead of a gay son.
She told me that she wished I had been born
with Down syndrome or that I had been mentally retarded.
Boies: Who did you meet with at NARTH?
Kendall: I met with Dr. Joseph Nicolosi.
Boies: Where would you meet with Mr. Nicolosi?
Kendall: I did actually fly out to California
to do in-person sessions.
I recall Nicolosi saying that, you know,
"Homosexuality is incompatible with what God wants for you,
and your parents want you to change,"
and that this was a bad thing.
Boies: And were you given any advice
on how you would be able to suppress
your homosexuality in these therapy sessions?
Kendall: I remember it was a general admonishment,
but not a specific technique, no.
Boies: No further questions, Your Honor.
Walker: Mr. Cooper, you may cross-examine.
Cooper: Mr. Kendall, have you ever lived
in the state of California?
Kendall: No, I have not.
Cooper: You've never read a scientific study
addressing the concept of sexual orientation; isn't that true?
Kendall: That is true.
Cooper: And isn't it also true that you have never studied
whether a person's sexual orientation can change
throughout the course of his or her lifetime?
Kendall: No, I haven't studied it.
Cooper: And nothing involved in this conversion therapy
was your decision; it was all your parents' decision.
Isn't that true?
Kendall: Yes.
Cooper: And at some point you communicated to your parents
your objections to the counseling treatment.
But your parents compelled you to go against your will?
Kendall: That is correct.
Cooper: Your only goal for conversion therapy
was to survive the experience; isn't that true?
Kendall: Absolutely true.
Cooper: You didn't have the goal of changing
your sexual orientation-- I'm sorry, correction.
You didn't have the goal of changing
your sexual attraction; is that correct?
Kendall: That's correct.
Cooper: Indeed, you admit
that you did not truly want to reduce
your sexual attraction to persons of the same sex.
Isn't that true?
Kendall: That's correct. It's my experience
that people don't want to go to programs like NARTH.
Cooper: Well...
[laughter]
you acknowledged in your deposition, did you not,
that some people report to have effective results
with this conversion therapy. isn't that true?
Kendall: Yes.
Cooper: I have no further questions, Your Honor.
Boies: And was this therapy successful
in that you were able to suppress your homosexuality?
Kendall: Nope. I was just as gay as when I started.
[laughter and applause]
Boies: While you were in conversion therapy,
were you introduced to any people who purported--
or were purported to you
to have successfully undergone conversion therapy?
Kendall: I remember during one of the group therapy sessions
Nicolosi trotted out his perfect patient,
the guy who had been cured of his homosexuality,
and-- and his name was Kelly.
Boies: Did meeting Kelly have any impact
on your views of conversion therapy?
Kendall: I remember once,
when Nicolosi stepped out of the room,
we were talking amongst ourselves,
and Kelly told me that later that night
he was going to a gay bar...
[laughter]
and that he was just pretending to be cured
for the sake of his family.
Boies: And why did you stop going to reversal therapy?
Kendall: During this whole thing,
my life had kind of fallen apart.
I didn't have the world that I grew up in,
my faith, which was very important to me;
my family, which was even more important to me.
Everything had just kind of stopped,
and I just couldn't take anymore,
and I realized, at one point,
that if I didn't stop going, I wasn't going to survive.
Boies: What did you mean by that?
Kendall: Um...
I would have--I would have probably killed myself.
Cooper: Your Honor, our submission, obviously,
is that sexual orientation is not an immutable trait,
that it is--th-- [stutters]
it is an accident-- an accident of birth, which--
Walker: What do you mean "an accident of birth"?
Cooper: An accident of birth in the sense that
the term has been used
consistently by the Supreme Court
to identify the kinds of immutable characteristics
that go into the calculus
on whether heightened scrutiny should apply.
The Ninth Circuit Court in the High Tech Gays case said,
unequivocally, "sexual orientation
is not an immutable characteristic."
That is a quote.
But perhaps the most vivid evidence
was an APA study which indicated that over a ten-year period,
for women who identified themselves as homosexuals,
some two-thirds of them had experienced
a change in their sexual orientation
at least once over the course of their lifetime.
Sandy: I had a hard time relating to the concept
of being in love
when I was married to my husband.
I honest-- just couldn't relate to people
when they said they were in love.
I thought they were overstating their feelings...
[laughter]
making a big deal out of something.
It--it just seemed dramatic.
When you grow up in the Midwest and in a farming family,
there's a pragmatism that's part of the fabric of life,
and I remember as a young girl talking to my mom
about love and marriage and she would say,
"You know, marriage is more than romantic love.
It's more than excitement. It's hard work."
And, uh, in my family that seemed really true.
[laughs]
Um, so I thought that's what I was signing up for
when I got married to him.
Not that it would be bad,
but that it would be hard work.
When I first met Kris I was teaching a computer class,
and she was a student.
But then we ended up being friends,
and I began to realize that the feelings I had for her
were really unique,
and they were absolutely taking over my thoughts
and my entire self, and I grew to realize
I had a very strong attraction to her
and that I was falling in love with her.
and not only were we in love,
but we wanted to join our families
and have the kind of life of commitment and stability
that we both really appreciated.
Olson: How convinced are you that you are gay?
You've lived with a husband. You said you loved him.
Some people might say,
"Well, it's this,
and then it's that, and it could be this again."
Sandy: I'm convinced, because at 47 years old
I have fallen in love one time, and it is with Kris.
Paul: I have been gay as long as I can remember.
Jeffrey: I have no attraction...
desire to be with a member of the opposite sex.
Kris: I have always felt strong attraction
and interest in women and I have only ever
fallen in love with women. I'm 45 years old.
I don't think I'm anything other than gay.
Herek: The American Psychiatric Association,
the American Psychological Association,
the major professional mental health associations
have all gone on record affirming
that homosexuality is a normal expression of sexuality.
Kris and Sandy: Finding of fact number 46.
Herek: "Individuals do not generally choose
"their sexual orientation.
Paul: "No credible evidence supports a finding
"that an individual may...
Jeffrey: "through conscious decision,
"therapeutic intervention...
Sandy: "or any other method,
change his or her sexual orientation."
Boies: Professor Herek,
can you please describe your educational background?
Herek: Yes. I received my doctorate
in social psychology from the University of California.
My dissertation focused on heterosexuals' attitudes
towards lesbians and gay men.
Boies: And turning to your opinions, Dr. Herek,
what is sexual orientation?
Herek: Sexual orientation is a term we use to describe
an enduring sexual, romantic, or intensely affectional attraction
to men, to women, or to both men and women.
It's used to refer to an identity or a sense of self
that is based on one's enduring patterns of attraction.
Boies: So is homosexuality considered a mental disorder?
Herek: No. There were empirical studies
that had been conducted that had failed to support
the view of homosexuality as a mental illness.
Boies: Okay, looking at the study,
"The Definition and Scope of Sexual Orientation."
It says: "We suggest the term sexual preference is misleading,
"as it assumes conscious or deliberate choice
"and may trivialize the depth
"of the psychological process involved.
"We recommend the term 'sexual orientation,'
"because findings indicate that homosexuals' feelings
"are a basic part of an individual's psyche
"and are established much earlier
than conscious choice would indicate."
Do you agree with that?
Herek: Yes. Boies: [clears throat]
Herek: Yes, I do.
Walker: But these immutability characteristics,
they really are not the important factor, are they,
in deciding what the level of scrutiny is?
Cooper: Well, Your Honor, yes.
With respect, it is a critical--it is--
It is a critical element, but it isn't--
it isn't more or different-- differently critical than, say,
political power, and-- Your Honor,
under the Supreme Court's test for political powerlessness,
we would submit to you, again,
that the evidence is overwhelming
that gays and lesbians are not politically powerless.
Notwithstanding Dr. Segura's testimony.
Olson: Dr. Segura, how have ballot initiatives
in this country affected the rights
of gay men and lesbians in terms of political power?
Segura: Well, for starters, I would include in this
undocumented aliens, who are a distant second,
there is no group who has been targeted by ballot initiatives
more than gays and lesbians.
The number of ballot initiative contests since the late 1970s
is probably at or above 200.
Gays and lesbians lose 70% of the contests,
and a 100% of the contents--con--contests
over same-sex marriage and adoption.
Olson: Are gays and lesbians under-represented
in political office in the United States?
Segura: At last count, only six people have ever served
in the House of Representatives who have been openly gay,
and only two of those were elected as openly gay.
There has never been an openly gay Senator,
or cabinet member, or certainly President,
And only about 1% of the state's legislatures are gay.
Olson: So how does the lack of participation or representation
in government positions undermine the political power
of gay men and lesbians?
Segura: There are members of the United States Senate
who, in public speeches, have compared same-sex marriages
to marrying a box turtle.
Senator Coburn has gone on record saying
that the gay and lesbian agenda
is the greatest threat to the freedom
in the United States today.
And a Senator from South Carolina
said that gays and lesbians
shouldn't be allowed to teach in the public schools.
It's difficult to imagine an elected official
saying such a thing about, really,
almost any other citizen group.
Now, that's not the fringe,
that's a United States' Senator, and as a consequence,
it legitimizes some of these deeply hostile beliefs.
Kris: I don't want to draw people's criticism.
In fact, quite the opposite.
I would really like people to like me.
[laughs] I would, so since I know I have this trait
that I can't change that people don't like,
I go to great lengths to develop other traits
that people will like.
So I put a significant amount of time and energy
into being, well, likable, [laughs]
so that when discriminatory things happen,
maybe I can turn it around.
The decision every day to come out or not, at work,
at home, at PTA, at music, at soccer, it's--
it's exhausting.
If, for example, I'm on a plane and somebody comes up
and I've saved a seat for Sandy, but she's not there yet,
and they say, "Is that saved?"
and I say, "Yes, it's for my partner,"
And they say, "Oh, well, then could you please move
so I could sit there?"
Or if we're at a store, and people want to know
if we're sisters, or cousins, or friends, and...
I have to decide every day if I want to come out
everywhere I go and take the chance
that somebody will have a hostile reaction,
or just go there and buy the microwave
we went there to buy
without having to go through all that again.
[sighs]
[applause]
Walker: Let me throw in a question here.
Assume I agree with you that the state's interest in marriage
is essentially procreative.
How does permitting same-sex marriages
impair or adversely affect that interest?
Cooper: Your Honor, that gets to
the fundamental disagreement there.
They say that it's not enough for opposite-sex unions
to further and advance these vital state interests,
that we have to prove that including same-sex unions
into the definition of marriage
would actually harm those purposes and interests.
That is not Equal Protection construct--
Walker: I am asking you to tell me
how it would harm opposite-sex marriages.
Walker: All Right.
Let's playper: All Right.
on the same playing field for once, okay?
Cooper: Your Honor, my ans--
my answer is...
I don't know.
I...
I don't know.
[applause]
Walker: Does that mean--
does that mean if this is not determined
to be subject to rational basis review...
you lose?
Cooper: No, Your Honor.
Walker: Just haven't figured out
how you're going to win on that basis yet?
Cooper: Your Honor,
by saying that the state and its electorate are entitled,
when dealing with radical proposals for change,
to move with caution-- Keep in mind,
this same-sex marriage is a very recent innovation.
Its implications of a social and cultural nature,
uh, not to mention its impact on marriage over time,
can't possibly be known!
Walker: So this is a political question,
and the Court should abstain? Is that it?
woman: Same-sex marriage.
Have you really thought about it?
man: What it means when gay marriage
conflicts with our religious freedoms.
man: Why it was forced on us by San Francisco judges
when gay domestic partners
already have the same legal rights.
woman: What it means when our children
are taught about it in school.
woman: Have you thought about what same-sex marriage means?
girl: To me?
woman: Think about it.
Voting yes restores traditional marriage.
Yes on Proposition 8.
Paul: I was in traffic in Los Angeles,
and that's like having coffee
with someone in the car next to you.
[clears throat] You deal with sitting next to this person
over and over again for miles.
And I noticed that this person
had a "Yes On 8" campaign sticker
on their bumper,
and I thought, "I want to see who this person is."
And I pulled up, and I looked over,
and I got a very distinctive "What?" look back,
and I said, "I just disagree with your bumper sticker."
She said, "Well, marriage is not for you people, anyway."
And I thought, "God, do I have a gay flag on my car?"
Like--like, "How does she even know I'm gay?"
And normally I think I'm pretty good about
being able to come back with,
you know, something to--to support myself,
but I was in shock.
And I remember it was a yellow bumper sticker,
and it had an image that looked like
a parent and a child, connected, because "Protect the Children"
was a big part of their campaign.
But when I think of protecting your children,
you protect them from people
who will perpetrate crimes against them.
You protect yourself from things that can harm you
physically, emotionally, and the insinuation
that I would be a part of that category,
that--that my getting married to Jeff
is going to harm some child somewhere--
it's so damning, and it's so angering,
because if you put my nieces and nephews on the stand right now,
I'd be the "cool uncle."
And to think that you had to protect someone from me,
from Jeff, from our friends, and from our community,
there's no recovering from that,
and unless you've experienced that moment,
regardless of how proud you are, you feel ashamed.
It rocks your world.
Olson: I'm willing to acknowledge
that there are plenty of good Californians
that voted for Proposition 8 because they are not--
well, let's say they are uncomfortable with gay people.
They are uncomfortable with gay people
entering into marriage, and they are uncomfortable
with the very idea that gay people are just like us.
But they didn't hear, and too bad
they couldn't have seen the evidence in this trial.
The Supreme Court has said that:
"Marriage is the most important relation in life.
"It is the foundation of society.
"It is essential to the orderly pursuit of happiness.
"It is a right of privacy older than the Bill of Rights
"and older than all of our political parties,
a right of intimacy to the degree of being sacred."
There are 14 Supreme Court decisions
that talk about the right of marriage
and the testimony of all these expert witnesses
and the testimony of the plaintiffs.
That erects an insurmountable barrier
to the proponents of this proposition.
It will not hurt Californians. It will benefit Californians.
But as long as it doesn't hurt Californians
to get rid of a handful-- or let's say,
a harmful stigma in their Constitution
that's labeling people into classes,
then it's unconstitutional.
Thank you, Your Honor.
Walker: Very well. Thank you, Mr. Olson.
[applause]
We have come to lunchtime and,
Mr. Cooper, you are up at 1:00,
and I look forward to hearing from you at that time.
Maggie: It's not discrimination. It's not discrimination
to treat different things differently.
I have a message for our good friends
who don't agree with us.
The 52% of Californians who came together
across lines of race and creed and color to protect marriage
as the union of husband and wife are not haters.
There is rather powerful evidence
that human beings are a two-sex species,
designed for sexual rather than asexual reproduction.
If this is true, then the absence of desire
for the opposite sex represents, at a minimum,
a sexual dysfunction.
Kris: Spencer, aren't you hungry?
Spencer: Uh, no, not really.
Elliott: I can't miss practice again and still start on Friday.
Spencer: Yeah, and I have a test.
Three tests, actually.
Elliott: How long do we have to be here?
Maggie: At its deepest level, this thing called marriage
stands for the reality that our bodies have meaning,
that it's not an accident that we are born male and female,
that the deepest yearnings of our hearts
and even our bodies have a purpose.
A baby, as you know,
is God's opinion that the world should go on.
It is not a creature of government,
something invented and reinvented for the latest fad.
Elliott: But, I mean, they're not really
doing anything in there.
They're just providing lots and lots of dense evidence.
I mean, I just hear it, and I'm like,
"Uh, okay, who cares?"
Spencer: You know, I thought it was interesting, personally,
but their side, they're just--they're so--
Elliott: Subpar, Spencer.
Spencer: "Subpar," that's the perfect word.
Thank you, Elliott.
Elliott: And it's nothing we don't know already,
so why are we here?
Maggie: What are activist judges proposing to do?
To redefine what the word "husband" means.
To redefine what the word "wife" means.
To redefine what the word "parent" means.
So that no longer has these deep roots
in the natural order.
Kris: Hey, we'll get tapas at Fonda's on our way home.
How about that?
Elliott: Whatever. We'll just get takeout and walk home.
Sandy: Oh, your moms, huh?
It's that special kind of torture to be, like,
at a restaurant with your moms, right?
Spencer: It's not that bad. I think you're interesting, Sandy.
Kris: [laughs] G--
Sandy: Just one more night, and we'll be back to normal.
Kris: And you'll be really, really bored again, I promise.
Sandy: [laughs]
Maggie: So what is this thing called "same-sex" marriage?
I'll tell you what it is.
It amounts to a vast social experiment...
on children.
And rewriting the basic rules of marriage puts all children,
not just the children in unisex unions, at risk.
And that's the real truth, thank you very much.
[applause]
Walker: Mr. Cooper, good afternoon.
Cooper: Good afternoon, Your Honor.
The New York Court of Appeals observed in 2006 that,
until quite recently, it was an accepted truth
for almost everyone who lived in a society
in which marriage existed that there could be marriages
only between participants of different sex.
So the first question is,
"Why has marriage been so universally defined
"by virtually all societies at all times in human history
as an exclusively opposite-sex institution?"
It is because marriage serves a societal purpose
that is equally ubiquitous--
a purpose that makes marriage fundamental
to the very existence and survival of the human race.
And the historical record leaves no doubt
that the central purpose of marriage
in virtually all societies and at all times
has been to channel
potentially procreative sexual relations
into enduring, stable unions to increase the likelihood
that any offspring will be raised by a man and woman
who brought them into the world.
Mr. Olson often quotes the Supreme Court's statement
that "marriage creates the most important relation in life."
That quote comes from the Maynard case,
and the Maynard court explained why the institution of marriage
is uniquely imbued with public interest.
Walker: Do people get married to benefit the community?
Cooper: Your Honor?
Walker: When one enters into a marriage, you don't say,
"Oh, boy, I'm going to be able to benefit society
by getting married."
What you think of is, "I'm going to get a life partner."
Cooper: Yes, Your Honor.
Walker: Somebody that I can share my life with,
maybe have children, but all sorts of things
come out of a marriage.
Cooper: Yeah, but if you--
Walker: But is this purpose
of marriage for individuals to benefit society?
Cooper: Well, it may well be
that individuals who get married aren't doing it
in order to benefit the community,
although that is the ultimate result of it.
But the question has to be, "Well, why does the government
regulate this relationship? Why--"
Walker: That's a good question.
Why doesn't it leave it entirely up to private contract?
Cooper: It is because this relationship is crucial
to the public interest because, Your Honor,
the procreative sexual relation
is an enormous benefit to society,
and it represents a very real threat to society's interests.
Walker: A threat? Cooper: A threat.
A threat in the sense that to whatever extent
children are born into the world
without this stable, enduring marital unit and--
and raised by both of the parents that brought them
into this world, then a host
of very, very negative social implications arise.
Walker: But the state doesn't withhold the right
to marriage to people who are unable to produce children
of their own.
Are you suggesting that the state should?
Cooper: No. No, s-- Your Honor, no.
I-i-it is by no means a necessary, uh--
a necessary condition or a necessary requirem--
Walker: Well, then the state
must have some interest wholly apart from procreation.
Cooper: Your Honor, it isn't a necessary requirement
that the state actually insist that individuals
who get married have children or be able to have children.
How-- How would it go about
administering such a requirement?
It would be-- We'd have to have a pre--
premarital fertility testing,
some kind of premarital pledge
in which the couple found to be fertile,
some kind of intrusive process--
also pledge to actually have children.
Your Honor, th-these kinds of Orwellian--Orwellian--
Walker: It is Orwellian.
But isn't that the logic that flows
from the premise that marriage is about procreation?
Cooper: It is enough if the state or the society seeks
to attempt to ensure and increase the likelihood--
really, that's what it boils down to--
increase the likelihood
that naturally procreative sexual relationships
will take place in an enduring and stable family environment
for the sake of raising children.
Walker: Isn't the state indifferent with respect
to how the child was conceived?
Cooper: The state and every state and every society
for the millennia, Your Honor, has attempted
to channel naturally procreative sexual conduct
between men and women
into an enduring, stable union for the sake of--
Walker: Let's move on
from the millennia to the three weeks in January
when we had the trial.
What does the evidence show?
Cooper: Thank you. Thank you, Your Honor.
I--I believe the evidence shows overwhelmingly
that this interest in what many call--
and the United States Congress calls--
"responsible procreation" is really at the heart
of society's interest in regulating marriage.
Walker: Okay.
Cooper: Because, for example, what the evidence shows
i-is that imminent-- Walker: I'm just--
What was the witness who offered the testimony?
What was it and so forth?
Cooper: Yes, Your Honor. Uh...
Sociologist Kingsley Davis has described
the universal societal interest in marriage
as recognition and approval of a couple engaging
in sexual intercourse and marrying and rearing offspring.
Blackstone, Your Honor, said that
there are two great relations in private life--
first, that of husband and wife--
Walker: I don't mean to be flip,
but Blackstone didn't testify.
Kingsley Davis didn't testify.
What testimony in this case supports the proposition?
Cooper: But, Your Honor, you don't have to have evidence
for this from these authorities.
This is in the cases themselves.
Walker: I don't have to have evidence?
Cooper: You don't-- You don't have to have evidence
of th--of this point if one court after another--
Your Honor, most courts-- most of the courts--
at least 2/3, Your Honor-- or just approximately anyway--
2/3 of all the judges that have looked at this issue before you
have--have upheld the traditional--or would have--
would have upheld the traditional definition
of marriage on this rationale-- this--this rationale.
And the plaintiffs say there is no way to understand
why anyone would support Proposition 8
except through some irrational, dark motivation,
some animus, some-- some kind of bigotry.
[chuckles] Your Honor,
that is just not only a slur on 7 million Californians
who supported Proposition 8.
It is a slur on 70 out of 108 judges who have--
Walker: Let me ask...
If you have got 7 million Californians
who took this position, 70 judges, as you pointed out,
and this long history that you have described,
why in this case did you present but one witness on this subject?
One witness.
And I think it fair to say that his testimony
was equivocal in some respects.
[laughter, applause]
Boies: The defense in this case started
with a long list of witnesses, but you see,
it's easy for people who want to deprive gays and lesbians
of their rights to make all kinds of statements
in campaign literature or on TV
where they can't be cross-examined.
But when they have to come into court
and defend those opinions under oath,
well, initial depositions--
their expert witnesses started having second thoughts.
That included Dr. William Tam, one of the very men
who worked to put Proposition 8
on the ballot in the first place.
What is your relationship
to the Traditional Family Coalition?
Tam: I am the executive director of Traditional Family Coalition.
Boies: All right, this is an email that you wrote
on May 15, 2008, is that correct?
Tam: Yes. Mm-hmm.
Boies: And the last sentence of this says, "We can't lose
"the battle for Proposition 8,
"or God's definition of marriage
will be permanently erased in California."
Now was that your motivation for participating
with protectmarriage.com
in promoting Proposition 8?
Tam: Mm, the other reason is... I think it is very important
that our children do not grow up thinking--
fantasizing or thinking about,
"Should I marry Jane or John when I grow up?"
Boies: Then you go on to say, "What will be next?
"On their agenda list is legalizing
having sex with children."
And this was something that you were putting out
in order to convince people to vote for Proposition 8.
Is that correct?
Tam: Mm-hmm. Yes.
Boies: And then the last sentence says,
"If sexual orientation is characterized as a civil right,
then so would pedophilia, polygamy, and incest."
Do you agree with that, sir?
Tam: Yes, I agree.
Boies: And that's what you were telling people
in order to convince them to vote for Proposition 8.
Is that correct?
Tam: Yes.
Boies: Let me go down to point four where you say that
"countries that legalized same-sex marriage
saw alarming moral decline."
You believe that after the Netherlands
legalized same-sex marriage, the Netherlands went on
after that to legalize incest and polygamy and...
[laughter]
Who told you that, sir?
Tam: It's in the Internet.
[laughter]
[applause]
Boies: In the Internet?
And you just put it out there to convince voters
to vote for Proposition 8?
Tam: Yeah.
Boies: [scoffs]
[laughter]
After his deposition,
Dr. Tam chose to avoid the subpoenas
compelling him to appear in court under oath.
In effect, Dr. Tam went on the lam,
refusing to testify.
And after our depositions of their potential witnesses
were complete, only two--
two were still willing to testify.
Their only remaining expert on marriage was a Mr. Blankenhorn.
[laughter]
[cheers and applause]
clerk: Raise your right hand, please.
Do you swear to tell the truth, the whole truth,
and nothing but the truth?
Blankenhorn: I do.
Cooper: Mr. Blankenhorn, what is the primary purpose
of marriage in human groups?
Blankenhorn: We're embodied as male and female.
That's the basic division in the species.
We-- we reproduce sexually.
In fact, the famous anthropologist
Claude Levi-Strauss once described marriage
as a social institution with a biological foundation.
He was saying that, across societies,
that the man and the woman whose sexual union makes the child--
that those same two individuals
are also the social and legal parents of the child.
And there is only one institution in the world
that performs the task of bringing together
the three dimensions of parenthood--
the biological, the social, and the legal--
That institution... is marriage
because we know how important this is for children.
Walker: Very well. Mr. Boies, you may cross-examine.
Boies: Well, all right. Uh...
Let me try to make this as simple as I can.
[laughter]
Have any of the-- any of the scholars
that you've said you relied on said that permitting
same-sex marriage will cause a reduction
in heterosexual marriage?
That's "yes," "no," or "I don't know."
Blankenhorn: Well, I know the answer.
The-- I cannot answer you correctly
if the only words I'm allowed to choose from is "yes" or "no."
I can give you my answer in a very brief sentence.
Walker: If you know the answer, why don't you share it with us?
Blankenhorn: I-- Well, I would be happy to,
but he's only permitting me to give "yes" and "no."
I-- And--
I cannot do that and be accurate.
[laughter]
Walker: He is giving you three choices:
"yes," "no," "I don't know." Blankenhorn: But I do know.
I do know the answer.
Walker: Then is it "yes," or is it "no"?
Blankenhorn: Your--Your Honor, I can answer the question,
but I cannot give an accurate answer
if the only two choices I have are "yes" and "no."
I--If you give me a sentence-- I can answer this in--
One sentence is all I'm asking for.
[laughter]
Walker: All right, let's take a sentence. One sentence.
Blankenhorn: Can you ask me the question again, please?
[laughter, applause]
Boies: Yes.
Have any of the scholars who you say you relied on
asserted that they believe permitting same-sex marriage
will result in a reduction
in the heterosexual marriage rate?
Blankenhorn: [clears throat]
My answer is
that I believe that some of the scholars I have cited
have asserted that permitting same-sex marriage
would contribute to the deinstitutionalization
of marriage, one of the manifa--
manifestations of which would be
a lower marriage rate among heterosexuals,
but I do not have sure knowledge that, in the exact form of words
you are asking me for, they have made the direct assertion
that permitting same-sex marriage would directly lower
the marriage rate among heterosexuals--
Boies: Mr. Blankenhorn.
Blankenhorn: That wasn't that long.
[laughter]
Boies: Questions and answers.
Walker: If I were to take that as an "I don't know,"
would that be fair?
Blankenhorn: Well, with res-- with respect, Your Honor,
I would disagree with you.
I know exactly my answer to this question,
and I have just stated it.
And I would be happy to restate it.
Walker: The record is clear on what you said.
Cooper: [sighs] Your Honor, if you will,
I want to address the issue of whether or not
there is a legitimate basis for people to be concerned
that redefining the traditional understanding of marriage
presents any basis for concern about the harm that--
that may result.
But before analyzing this, I think
we have to begin with two propositions.
The first one is that redefining the institution
will change the institution.
And I think Mr. Blankenhorn really summed it up quite well.
[laughter]
Blankenhorn: It's impossible to be
completely sure about a prediction of future events.
But I do have a great deal of confidence
in the likelihood of the weakening of marriage
through the process of deinstitutionalization
to a greater degree than would be the case otherwise.
If you change the definition of the thing,
it's hard to imagine
how it could have no impact on the thing.
So while I don't think anyone here
can say that they know from scientific study
that they--that they know with absolute certainty
that this will happen,
I sincerely believe
that this is the most--
this-- this is a likely outcome--
a likely result of adopting same-sex marriage.
[laughter]
Boies: And when you say, "based on the scholars
that have studied this," that's because you're simply
repeating the things that these scholars say.
You are just a transmitter
of the findings of these scholars, is that correct?
Blankenhorn: Now you're--you're putting words in my mouth now.
Boies: No, sir.
Blankenhorn: Yes, sir. I was simply trying
to report the view of some scholars
that I was basing my arguments on.
I'm saying there are scholars-- respected scholars--
who have made this argument based on ethnographic research,
and I've read them.
And that's the basis for my assertion.
That's all. Boies: Your Honor,
could I ask this witness be instructed
to listen to the question, answer my question,
and not make a statement that is not responsive
to the question, even if he believes it's important?
Blankenhorn: I don't need such instruction.
That's what--that--My intention is to do exactly that.
Walker: Mr. Blankenhorn, one of the instructions
that the court gives to the jury when an expert witness testifies
is to consider the witness' background,
training, and all of the other evidence in the case.
And that other evidence includes the demeanor of the witness.
So I would urge you to pay close attention
to Mr. Boies' questions and to answer them directly.
Succinctly.
So bear that in mind.
Blankenhorn: Yes, sir. I will.
[laughter]
Boies: I'm really just addressing
whether I was putting words in your mouth.
Uh, if you look at page 300, lines 7 through 12,
you said that you are basing your analysis
on the work of highly regarded scholars.
And then you say-- Blankenhorn: Okay.
Oh, a gotcha moment. [chuckles]
I used the word "I'm a transmitter of findings
of eminent scholars." Gotcha, okay, okay.
Boies: No, that's not a gotcha.
I'm just trying to--
Blankenhorn: Okay.
I said "transmitter" seven months ago in a deposition.
Boies: And what you meant there was that
you weren't making these conclusions on your own.
You were simply repeating what these scholars had to say.
Is that correct?
Blankenhorn: If I may say so in my own words--
Well, I was basing-- Boies: Well, let me, uh--
Boies: Look at your own words. Let's look at your own words.
Page 300.
"I am simply repeating things that they say.
"I can assure you, these are not my own conclusions.
I am--I'm--I'm a transmitter here of findings--"
[applause]
"of findings of these eminent scholars."
Did you give that testimony at your deposition?
Blankenhorn: That's what I said at the deposition.
Cooper: Your Honor, you will not find
anywhere in the pages of history, nowhere,
any suggestion
that the traditional definition of marriage,
across cultures, across time,
had anything whatever to do with homosexuality!
Had nothing to do with it!
Walker: You heard Mr. Olson this morning
recount the background of the Loving decision
by the Supreme Court in 1967.
And up to that time, numerous states had laws on the books
which prohibited interracial marriage.
Why are we not at that same tipping point here
with respect to same-sex marriage?
Cooper: Your Honor, several reasons.
Among the most important is this.
What legitimate purpose of marriage,
recognized historically or anywhere else,
provided a rational basis for the State of Virginia
to say that an interracial couple could not get married?
It certainly wasn't core procreative purpose.
Walker: Excuse me for interrupting,
but you recall the rationale that was used by the courts
was that the mixing of the races
would have serious corrosive effects on society.
Cooper: Your Honor, those racist, racist sentiments
and policies had no foundation
in the historical purpose of marriage, and, in fact,
they actually made people have illegitimate children,
illegitimate natural children,
which, again was the purp--
The purpose of marriage, as Justice Stevens says,
is to license cohabitation
and produce legitimate children.
As the Eighth Circuit said, Your Honor,
only opposite-sex couples can procreate naturally
and, therefore, it is only opposite-sex couples
who uniquely address this fundamental historic--
Walker: But you don't draw any distinction
between the state's interest where an opposite-sex couple
have had to require some form of intervention
in order to produce children.
The state's interest is exactly the same, is it not?
Cooper: Your Honor, not.
They are not quite the same, no.
Walker: Well, then, what's the difference?
Cooper: I really think the state's main concern,
or certainly among the state's main concerns
in regulating marriage and in seeking to channel
naturally procreative sexual conduct
into stable and enduring unions
is to minimize what I call irresponsible procreation.
It's not a good term,
but I can't think of a more serviceable one.
And that is, procreation that isn't bound by social norms
and that often leads to children being raised
by one parent or the other or sometimes neither parent.
Walker: And my point was that there are a number
of heterosexual couples who do not naturally procreate,
who require the intervention of some third party
or some medical assistance of some kind.
Cooper: Yes, Your Honor.
And it is not those opposite-sex couples either
that the state is concerned about in terms of--
in terms of the threats to society
and the concerns that society has
from irresponsible procreation.
Walker: Why don't those same values you have described
apply to lesbian couples and gay couples...
coming together, supporting one another,
providing love, comfort, and support for one another?
Why don't all of those considerations apply
just as much to the plaintiffs here
as they apply to John and Jane Doe?
Cooper: Your Honor...
Your Honor, I want to conclude this piece of my argument
by calling the court's attention to a case
from the 11th Circuit called Lofton.
It was a case in which the 11th Circuit
upheld a Florida statute that prohibited gay adoptions.
Taking all of this available information into account,
the legislature could rationally conclude
that a family environment with married opposite-sex parents
remains the optimum social structure
in which to bear children,
and that the raising of children by same-sex couples
presents an alternative structure for child-rearing
that has not yet proven itself to be as optimal
as the biologically-based marriage norm.
Walker: I'd like to ask you something.
Why should Mr. Blankenhorn's testimony be admitted?
Does he meet the Daubert standards?
Cooper: His professional life for 20 years
has been devoted to the study of one subject,
the subject of marriage.
He's written two books on this subject matter--
Walker: Were they peer reviewed?
Cooper: I think the Ninth Circuit's standards
for qualifying an expert are particularly liberal.
And I don't think they require--
they certainly don't insist that an expert's publications
have been peer reviewed.
So, Your Honor, again, I really didn't come...
Walker: All right.
Cooper: here to particularly reargue that,
but I do believe-- I-I--
[laughter]
Will the court entertain... uh, well...
Walker: A break?
Cooper: Uh, maybe five minutes.
Walker: Why don't we take a little more than that
and resume at ten minutes after the hour?
Elliott: What did that mean?
Kris: What?
Elliott: "Irresponsible procreation"?
"Illegitimate natural children."
What was he talking about in there?
Sandy: They're going to say whatever they have to.
It doesn't mean it's true or that it's about you.
You two certainly weren't accidents.
Kris: God knows.
Spencer: So he was talking about us, me and Elliott?
Specifically. To our faces.
Kris: Spencer, it's not--
Elliott: Technically, his back was to us, Spence.
He didn't even say it to our faces.
Kris: When I was 21 and she was 19,
my sister was diagnosed with inoperable brain cancer.
The summer I graduated from college, she died.
I was the only biological child my parents had left.
Losing Karin changed us all...
not necessarily for the best.
We all fumbled through the sadness for years after that.
It really felt like we'd be devastated and broken forever.
My 20s were so wrapped up in grieving and healing,
but I eventually came out of it.
And when I did, I felt crystal clear
that I wanted a family,
I wanted to give birth,
I wanted to feel connected to my kids
the way I had to my parents and Karin when she was alive.
I was unequivocal in my desire to have kids
and bring the best parts of my sister,
our family, and our future together.
The rest is pretty typical.
My partner of seven years and I
started the process of learning how to get pregnant.
Yes, lesbians have to learn how.
I went to a "Considering Parenthood" class for lesbians.
We chose a donor. We started inseminating.
And after a year and a half,
I decided to use fertility medication,
and that's when it worked.
I got pregnant the spring of 1994.
I was 8 months pregnant on my 30th birthday
and bigger than our little house.
You boys were born at UCSF on October 30th by c-section.
I will not give you the O.R. details,
but you were not accidents.
You were not "irresponsible."
You two are about the most responsible,
important, meaningful things
I will ever do in my whole life,
and don't you ever let anyone
ever make you feel any different.
You got it?
Elliott: Yes, Mom. Spencer: Yes, Mom.
But we still don't want to eat out tonight.
Kris: Fine. Tacos, takeout, whatever you want.
[laughter, applause]
Sandy: Hey, it's our turn.
If you want to hear the rest, we should go back in.
Come on.
[laughter]
[laughter]
Boies: Now, you believe that gays and lesbians today
are raising children, correct?
Blankenhorn: Of course, yes.
Boies: And, in fact, hundreds of thousands of children
are being raised by gay and lesbian couples.
Is that correct?
Blankenhorn: I don't know how many.
Boies: Did you ever try to find out?
Blankenhorn: I did.
Boies: And were you able to make an approximation?
Blankenhorn: I was. Yes, sir, I was.
Boies: And what was that approximation?
Blankenhorn: I can't recall.
[laughter]
Boies: Can you recall approximately?
Blankenhorn: No, sir.
Boies: Okay.
And you recognize that in some cases
gay and lesbians are raising a child
that is the biological child of one of the parents,
and in some cases they are raising adopted children.
That's correct?
Blankenhorn: Those would be two--two of--
Yeah, of course they would be.
Those would be examples of--
Those would be examples of children
in gay and lesbian homes, yes.
Boies: And you believe that permitting
gay and lesbian couples to marry
would significantly advantage
the gays and the lesbians themselves
and the children that they are raising.
Is that correct, sir?
Blankenhorn: When you say "advantage,"
do you mean improve the well-being of?
Boies: Yes.
Blankenhorn: My answer to your question is...
that...I believe that...
adopting same-sex marriage
would...be likely to im--improve
the well-being of gay and lesbian households
and their children.
[laughter]
Boies: In fact, the studies show that,
all things being equal,
two adoptive parents raising a child from birth
will do as well as two biological parents
raising a child from birth, correct?
Blankenhorn: No, sir, that's incorrect.
Boies: Well, sir--
Blankenhorn: May I say another word on that, please?
Boies: You will have an opportunity to redirect.
Blankenhorn: Okay, well...
It was a clarifying thing,
and it actually supports something you just said.
[laughter]
The studies show that adoptive parents, um...
because of the rigorous screening process
that they undertake before becoming adoptive parents,
actually, on some outcomes,
outstrip the biological parents
in terms of providing protective care for their children.
Boies: Yes, I was going to come to that.
I appreciate you for getting there.
Now, in binder number one,
we have a copy of your book, "Future of Marriage."
And the last two sentences.
"After all, part of the reason
"why the principle is so revolutionary
"is that it can grow and deepen over time.
"Groups that had long been considered
"effectively outside its moral reach--
"African-Americans, women,
"people of certain colors or languages or religions--
"can, over time and often as a result of great struggle,
enter into its protective sphere."
And then you get to two sentences
I want to particularly direct your attention to.
You say,
"I believe that today the principle of equal human dignity
must apply to gay and lesbian persons."
Do you see that?
Blankenhorn: Yes. Yes, sir.
Boies: And the "I" there is you, correct?
Blankenhorn: Th-that's correct.
Boies: And you say that,
"In that sense, insofar as
"we are a nation founded on this principle,
we would be more--" Emphasize "more"--
"American on the day we permitted same-sex marriage
than we were on the day before."
And you wrote those words, did you not, sir?
Blankenhorn: I wrote those words.
Boies: And you believe them to be correct?
Blankenhorn: Yes. Yes, I now believe them--
That's correct.
Boies: Your Honor, I have no more questions.
[applause]
When they come into court
and they have to support and defend their opinions
under oath and cross-examination,
those opinions just melt away.
There simply wasn't any evidence.
There weren't any empirical studies.
It's made up. It's junk science.
And it's easy to say that on television,
but the witness stand is a lonely place to lie.
And when you come into court, you can't do that.
And that's what we did.
We put fear and prejudice on trial.
[applause]
Cooper: Your Honor, Mr. Blankenhorn's testimony
was utterly unnecessary for this proposition!
Utterly unnecessary for this proposition.
Walker: This goes back to
the "You don't need any evidence" point.
[laughter]
Mr. Cooper, carry on.
Cooper: The plaintiffs think that the consequences
dominantly will be good consequences.
But it's not something that they can possibly prove.
And we would submit to you,
because I have heard this and read this
more than any three words that I have ever spoken:
"I don't know."
I don't know how many times
I wish I could have taken those words back--
Walker: Well--
Cooper: Because, Your Honor,
whatever your question is,
I damn sure know there's a risk.
And we want to see what happens in Massachusetts.
We want to see what happens right here and elsewhere.
Walker: But the "I don't know"
or "We don't know where it's going to lead" answer,
is that enough to impose upon some citizens
a restriction that others do not suffer from?
Cooper: We don't have to prove that redefining marriage
to include same-sex marriage
would visit harm upon the institution
and the interests that it serves.
Rather, we only have to prove
that including same-sex couples
would not serve those interests.
The California Court of Appeals
actually upheld the traditional definition of marriage,
and one of the points it made, Your Honor,
really goes to the heart of the matter:
"It is the proper role of the legislature, not the court,
to fashion laws that serve competing public policies."
There is a debate about the morals and the practicalities
and the wisdom of this issue
that really goes to the nature of our culture.
And the Constitution should allow that debate
to go forward among the people.
Thank you.
Walker: Thank you, Mr. Cooper.
Mr. Olson, why don't we just begin at that point
that Mr. Cooper just left off with?
And that is, in a sense, isn't the danger
not that you're going to lose this case,
either here or at the Court of Appeals
or at the Supreme Court, but that you might win it?
Olson: Well, I think the case you're referring to
has to do with abortion, Your Honor.
Walker: It does, indeed.
Olson: Your Honor, the cases upon which we rely
have been entirely different cases.
They have relied on fundamental,
established constitutional law.
Because the argument that Mr. Cooper makes
is essentially the same argument
that was made to the Loving Court, which, by the way,
the Loving Court unanimously decided to strike down.
And we stand here today thinking,
how could that have been?
In 1967--that's only 40 years or so ago--
we would have punished as a felon in the State of Virginia
the President's own mother and father
if they had tried to travel there and be married.
Now, Mr. Cooper's argument is--
and I know why he would like to take back these words--
"We don't know.
"We don't have to prove anything.
We don't have any evidence."
Yet he was reading from articles written by various persons
who did not come into this courtroom
and testify under oath and who did not subject themselves
to cross-examination by my colleague, Mr. Boies.
Some of them didn't come into court
because they had been cross-examined by Mr. Boies
in their depositions.
[chuckling]
But you do have to know.
He does have to prove.
The Romer Court specifically says,
"Under the lowest standard of review,
"you have to prove that you have a legitimate interest,
and that the subject--" Proposition 8 in this case--
"advances that legitimate interest."
So how does preventing same-sex couples
from getting married advance the interest of procreation?
What one single bit of evidence is there
that they are a threat to the "channeling function"?
If you accept that California has the right
in the first place-- and I do not.
I believe, Your Honor,
that there is a political tide turning.
I think that people's eyes are being opened finally.
People are becoming more understanding and tolerant.
The polls tell us that. There isn't any secret in that.
But that does not justify a judge in a court to say,
"I really need the polls to be just a few inches higher.
"I need someone to go out and take the temperature
"of the American public before I can break this barrier
and break down this discrimination."
Because if they change it here
in the next election in California, we still have Utah.
We still have Missouri, and we still have Montana.
This case is going to go to a court.
Some judge is going to have to decide
what we've asked you to decide.
And you have to have a reason, Your Honor.
And you have to have a reason that's real.
Not speculation, not built on stereotypes,
and not hypothetical.
That's what the Supreme Court decision tells us.
And I submit, at the end of the day,
"I don't know" and "I don't have to put on any evidence,"
with all due respect to Mr. Cooper, does not cut it.
It does not cut it when you're taking away
the constitutional rights,
basic human rights and human dignity,
from a large group of individuals.
You cannot say after the fact,
"We are going to take away the constitutional right
"to liberty, privacy, association,
and sexual intimacy that we already tell you you have!"
That is not acceptable.
And it's not acceptable under our Constitution,
and Mr. Blankenhorn is absolutely right.
The day we end that, we will be more American.
Thank you.
[cheers and applause]
Walker: So if there's nothing further...Mr. Cooper?
Cooper: Nothing.
[laughter]
Walker: Very well. The matter is submitted.
Elliott: Now what?
Sandy: I know, I know, it's too late for soccer,
but we're gonna go home.
We'll just pick up food on the way,
and you can study for your tests.
Spencer: And what, we're just supposed to wait?
Elliott: Yeah, how long do we have to wait?
Kris: I'm not sure, Elliott.
Spencer: Why not? You've got all these lawyers
and people in suits running around.
I mean, somebody's gotta at least have an approximation
of how long we have to wait.
I mean, give me a break. Sandy: Come on.
We'll fight these guys another day.
You've got soccer practice tomorrow,
you've got tests to study for.
Spencer: Fine. Sandy: Fine. Fine.
Elliott: Mom? Mom.
Kris: What? What is it?
Elliott: This whole thing was just ignorant.
I hated being here.
Kris: You're right. You're right.
You shouldn't have to had to have been here.
It's my fault...okay? I'm really sorry, Elliott, I am.
I'm just--let's just get out of here, okay?
Elliott: No. I just...
I just remember when you were up there
and looking around and seeing everyone crying around me...
and not even realizing myself, but I was crying too.
I mean, I just...saw my mom up there fighting for us...
and I'm glad I heard it. I am.
I just hated that we had to.
Kris: I know.
Elliott: That's all.
I'm proud of you.
I guess that's what I'm saying.
I love you, Mom.
Kris: I love you too, honey.
[applause]
Brown: On August 4, 2010,
Federal Judge Walker ruled unequivocally
that California's gay marriage ban,
Proposition 8, is unconstitutional.
And on February 7, 2012,
the Ninth Circuit Court of Appeals
affirmed that decision.
It was a momentous victory for gay rights supporters,
but it was not the end of the fight.
It was the beginning of what promises to be
a longer struggle, and one destined
for this country's highest court.
Judge Walker's decision was stayed
pending decisions by higher courts.
So tonight, like millions of other Americans,
Jeff Zarrillo and Paul Katami,
Sandy Stier and Kris Perry
still cannot be legally wed,
their families still unrecognized
and unprotected in the country they love.
Kris: I swear to tell the truth, the whole truth,
and nothing but the truth.
Sandy: The first time somebody said to me,
"Are you married?" and I said "Yes,"
I would think, "That feels good and honest and true."
I would feel less like I had to protect my kids
or worry that they feel any shame or sense of not belonging.
Paul: I shouldn't have to feel ashamed.
Being gay doesn't make me any less American.
It doesn't change my patriotism.
It doesn't change the fact that I pay my taxes
and I own a home and I want to start a family.
Jeffrey: I would be able to stand alongside my parents
and my brother and his wife,
to be able to stand together as one family
who have all had the opportunity of being married...
and the pride that one feels when that happens.
Kris: If Prop 8 were undone
and kids like me growing up in Bakersfield right now
could never have to know what this felt like,
their entire lives would be on a higher arc.
They would live with a higher sense of themselves
that would improve the quality of their entire life.
Sandy: And that's what I hope is the outcome of this case.
I hope for something for Kris and I,
but other people, over time,
would benefit in such an even more profound,
life-changing way.
That's what I hope for.
[applause]
[cheers and applause]
Reiner: Thank you very much. Thank you.
Thank you.
Thank you very much!
Thank you all for coming.
I want to introduce the author of tonight's play.
You all know him. Dustin Lance Black, come on up.
Black: Thank you guys for coming very much.
This is the last leg in this race for full equality.
That's what you always say.
And thank you so much for supporting that today.
We need your help to finish this fight
at the U.S. Supreme Court.
Thank you. Reiner: We also want to...
We also want to acknowledge
the actual plaintiffs who are here tonight--
Jeff Zarrillo, Paul Katami, Sandy Stier, Kris--
Kris, where are you? Come on up.
Oh, they're right here. Come on up!
Kris Perry, Sandy Stier.
Paul Katami and Jeff Zarrillo.
[cheers and applause continue]
Perry: Thank you. Thank you.
Everything you're doing is gonna push this over the finish line.
We needed all of you. We needed everybody here.
We needed the AFER team and Rob and Lance and Bruce
and everybody.
Thank you.
Reiner: Boys, you wanna say something?
You wanna say anything?
All right, and last but definitely not least,
are two of the most brilliant lawyers in the country.
We have the two greatest lawyers that ever practiced law--
Ted Olson and David Boies.
Come on up! Ted Olson and David Boies.
[cheers and applause]
Come on up.
Ted, go through here.
We also have...
we also have Spencer and Elliott.
Come on up, Spencer and Elliott.
Spencer and Elliott.
Olson: Thank you, thank you.
Thank you for this incredible cast
to take the words that took place during this trial
and the emotions and to bring it to life
before the American people.
It's such a gratifying thing for David and I to be here.
It's just fantastic. It was beautiful to watch.
Thank you.
Boies: There's a real poetic justice here,
because the defendants in the case
have done everything they could, and thus far, successfully,
to keep the videotapes of the trial
from the American people.
Because they don't want people to understand
what happened at that trial.
They don't want people to understand what the record was.
Now, if they had gone out,
they probably would have gone out on C-SPAN,
and I'm not sure how many people
actually would have watched the entire trial.
But today, because of this presentation,
because it's being streamed live on YouTube,
millions of people around the world
are gonna have an opportunity to see in condensed form
what the essence of this trial was like.
And you have all seen
that we did put fear and prejudice on trial,
and fear and prejudice lost.
[cheers and applause]
Reiner: Thank you very much!
We'll see you. Thank you very much.
Good night, everybody. Good night.