HOPE NOT HATE. A Prop 8 supporter wears a "Yes on 8" T-shirt as he arrives at a football stadium in San Diego, California November 1, 2008. Thousands of people gathered to pray for the passage of Proposition 8.

SAN FRANCISCO — Should the pro-marriage votes of Catholics, Baptists and other people of faith in California be disregarded as irrational, “discriminatory” and unconstitutional?

That’s the extraordinary question being asked in a federal lawsuit argued on behalf of two same-sex couples to overturn Proposition 8, the 2008 measure passed by 52% of California voters to define marriage as the union of one man and one woman.

During two and a half weeks of rapid-fire testimony in San Francisco, the plaintiffs’ legal team worked to build a case claiming that Prop. 8 should be thrown out, in part, because it was swept to victory on a tsunami of “irrational” religious “prejudice and hostility,” generated by discriminatory “messaging” put out by a broad coalition of Mormons, evangelical Christians and Catholics.

“The votes of Christians and other people of faith are without question on trial in California,” said attorney Austin Nimocks of the Alliance Defense Fund, part of the ProtectMarriage.com legal team.

Flooding the court with printed “evidence” for their case, the homosexual activists’ legal team at one point submitted a section of the Catechism of the Catholic Church and other Catholic teachings on homosexuality as evidence, presumably implying that these teachings display unconstitutional “prejudice and hostility” toward an allegedly powerless minority.

Contributions of time and money to the Prop. 8 victory by Catholics for the Common Good, the California Catholic Conference, the Knights of Columbus, Oakland Bishop Salvatore Cordileone and others were also scrutinized and entered as exhibits. So was a Southern Baptist Convention resolution stating that the legalization of same-sex “marriage” would “convey a societal approval of a homosexual lifestyle, which the Bible calls sinful and dangerous both to the individuals involved and to society at large.”

“Religion is now on trial, along with marriage and everyone who supported Prop. 8,” said Bill May of Catholics for the Common Good on a blog. His lay Catholic coalition supported the ProtectMarriage.com campaign credited with getting the measure passed.

As witness testimonies in the federal trial, Perry v. Schwarzenegger, wrapped up in late January, plaintiffs’ attorney Chad Griffin said, “The truth that came out in court is that Prop. 8 is discriminatory, unconstitutional, harms gays and children, and does so for no good reason.”

Plaintiffs’ attorney David Boies said the anti-Prop. 8 legal team had proved three things: “that marriage is a fundamental right; that depriving gays and lesbians of the right to marriage hurts them and hurts their children; and that there was no reason, no societal benefit for preventing gays and lesbians from getting married.”

But attorneys defending the statute said the highly emotional case their opponents presented was legally weak.

“The plaintiffs put on a spectacular show trial of irrelevant evidence,” said Andy Pugno, lead counsel for ProtectMarriage.com. But he said their arguments were mostly “political” and “not legal support for the claim that the U.S. Constitution contains the right to homosexual ‘marriage.’”

“The opposition could not make their irrational political arguments work for them at the ballot box,” said Thomas More Law Center attorney Charles LiMandri, general counsel for the National Organization for Marriage in California. “Therefore, they picked the most gay-friendly federal courthouse in the nation to make the same political arguments the public would not accept.”

Describing the Prop. 8 trial as “a rank misuse of the courts for a purely political purpose,” LiMandri said, “This ill-conceived case was funded by the liberal Hollywood machine in an effort to undermine the vote of the people.” According to an investigative report in the January issue of California Lawyer, executives in the entertainment industry planned the lawsuit even before Prop. 8 won at the ballot box.

Outmoded Religious Teachings?
The plaintiffs’ attorneys called expert witness after witness in an attempt to prove only historical religious “prejudice and hostility” against homosexuals had driven Prop. 8 to victory.

Grassroots religious opposition to same-sex “marriage” was likened to the objections some religious groups once had to interracial marriage, implying that societal and religious definitions of marriage are fluid and continually changing.

Yale history professor George Chauncey stated under oath that “people often do hold deeply sincere religious convictions which seem to them timeless, but historians have shown and have seen how they, in fact, change over time and naturally are shaped by the larger culture in which they live.”

Disputing the claim that marriage is “evolving,” Prop. 8 defense attorney David Thompson entered into evidence an observation by former U.S. Sen. James Talent, R-Mo., who said it’s “an act of hubris to believe that marriage can be infinitely malleable: that it can be pushed and pulled around like Silly Putty without destroying its essential stability.”

“Marriage goes, then the family goes,” Talent said, “and if the family goes, we have none of the decency or ordered liberty which Americans have been brought up to enjoy and to appreciate.”

Immutable Sexual Desires?

Pugno said the plaintiffs’ constitutional claim to “marriage” requires them to prove that sexual orientation — like race and gender — is immutable.

In an attempt to illustrate this point, a 26-year-old homosexual from Denver testified that the “reversal therapy” he underwent as a teen to change his sexual orientation drove him to the brink of suicide.

But one of the plaintiffs’ own witnesses — psychology professor Gregory Herek of the University of California at Davis — admitted under hours of cross-examination that the evidence for homosexuality being hardwired is “weak.”

“We don’t understand or know the origin of sexual orientation in men or women,” Herek said.

A Powerless Minority?

On day eight of the trial, “religious bashing ran rampant with Catholics and Southern Baptists as targets,” Bill May observed.

Stanford University political scientist Gary Segura testified that in the Prop. 8 battle, homosexuals lacked significant political power and faced a powerful and “unprecedented” opponent in a broad coalition of Mormons, Catholics and evangelical Christians who joined forces against them.

The Catholic Church was portrayed as a monolithic power.

When asked about Catholics, Mormons and Jews who dissent from their religious body’s official teachings, Segura replied that “there is pretty good evidence to suggest that [these dissenting groups] are very small and that they have very little influence within their churches.”

The notion that homosexuals need special protection under the law because they’re a “powerless” minority was sharply contested by defense witness Kenneth Miller, a professor at Claremont McKenna College. Miller said homosexuals have so much political clout in California that neither Republican Gov. Arnold Schwarzenegger nor any other statewide office holder would endorse Prop. 8.

But Miller observed that perhaps the best measure of homosexuals’ power in the state was the $43 million they amassed in their failed attempt to defeat Prop. 8 in 2008. That was $3.4 million more than what Prop. 8 supporters raised.

“Gay and lesbian interests are well represented, can get anything they like passed through the Legislature, raise millions and millions of dollars,” Miller said. “You just can’t with a straight face say gays and lesbians are a politically weak minority in California.”

Defending Marriage and the Faith

In what may have been the only direct defense of the Catholic faith in thousands of pages of sworn testimony, Miller stated, “My understanding of the Catholic Church’s position is that there’s a balance between moral disapproval of homosexual activities and desire to respect the dignity of the individual.”

A second defense witness, David Blankenhorn, president of the New York-based Institute for American Values, capped the proceedings by saying that although he supports same-sex “domestic partnerships,” it’s every child’s birthright to be raised by a father and mother. Blankenhorn said that redefining marriage to include same-sex couples would further weaken and devalue the already fragile institution of marriage in our society and could usher in new “family forms” like polygamy.

The court is now in recess as Chief U.S. District Judge Vaughn Walker takes time to review the evidence before allowing closing arguments, probably in March or April. He has no deadline for reaching a decision.

All statements and evidence entered in the district court record are now available for attorneys’ use should this case reach the U.S. Supreme Court. A decision there could determine the future of marriage for the entire country.

Meanwhile, the district court trial “has wound down in some respects, but it’s not over,” Nimocks said. “There’s still plenty of opportunity for legal fireworks in San Francisco.”

Sue Ellin Browder writes from Ukiah, California.