Paul Katami and Jeff Zarrillo are two of the plaintiffs in the Prop 8 trial. The trial is in its third week in a federal courtroom in San Francisco. – Photo: Diana Walker

Prop 8 trial continues in California

“This case is about marriage and equality. Plaintiffs are being denied both the right to marry, and the right to equality under the law,” said attorney Theodore Olson of the American Foundation for Equal Rights.

With those words, Olson opened his attack on the constitutionality of Proposition 8, the ballot measure banning same-sex marriage in California that voters approved in November 2008.

In the federal case Perry v. Schwarzenegger, Olson and attorney David Boies represent two same-sex couples — Paul Katami and Jeff Zarrillo and Kris Perry and Sandy Stier — who want to marry.

In 2000, Olson and Boies were adversaries in a significant case before the U.S. Supreme Court — Olson represented George W. Bush and Boies represented Al Gore in the dispute over counting Florida ballots in the presidential election.

Observers in U.S. District Court Judge Vaughn Walker’s courtroom in San Francisco said the attorneys worked well together — like a married couple — in the first weeks of the trial, which is expected to continue through this week.

A glance at the first weeks:

• The court viewed the video deposition of William Tam, a pro-Prop 8 activist, who wrote an e-mail during the ballot initiative fight that stated: “They lose no time in pushing the gay agenda — after legalizing same-sex marriage, they want to legalize prostitution. What will be next? On their agenda list is: legalize having sex with children.”
• The defense dropped four people from its witness list, leaving only two. Attorneys said people were reluctant to testify, fearing publicity.
• Zarrillo, Katami, Perry and Stier testified. “The word ‘marriage’ has a special meaning. …If it wasn’t so important, we wouldn’t be here today,” Zarrillo said. “I want to be able to share the joy and the happiness that my parents felt, my brother felt, my friends, my co-workers, my neighbors, of having the opportunity to be married. It’s the logical next step for us.”
  “I want to marry Sandy. I want to have a stable and secure relationship with her that then we can include our children in,” Perry testified. “And I want the discrimination we are feeling with Proposition 8 to end and for a more positive, joyful part of our lives to be begin.”
• Harvard history professor Nancy F. Cott challenged the defense position that procreation is the “central and … defining purpose of marriage.” She said, “I would certainly agree it is one of the purposes, but certainly not the central or the defining purpose. It’s a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile.”
• Yale professor George Chauncey testified about the history of discrimination. Prop 8, he said, played on stereotypes used historically to portray “homosexuals as perverts who prey on young children, (who) entice straight people into sick behavior.”
• University of California professor Letitia Peplau testified that there is no evidence to suggest that marriage equality would harm others.
• San Francisco economist Edmund Egan testified that Prop 8 is a drain on government budgets, and that legalizing same-sex marriage would generate significant revenues.
• Cambridge University professor Michael Lamb testified, “We have a substantial body of evidence documenting that (children) being raised by same-sex parents are just as likely to be well-adjusted as children raised by heterosexual parents.”

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