Burden of proof to overturn Prop. 8 was unmet, backers say as testimony ends

San Francisco, Calif., Jan 28, 2010 / 18:31 pm

The testimony period of the trial of California’s Proposition 8 ended on Wednesday. Backers of the measure claimed that those seeking to overturn it did not meet the burden of proof but had produced a “spectacular show trial of irrelevant evidence.” Opponents claimed it was based in discredited religious beliefs and prejudice comparable to racism.

Chief U.S. District Judge Vaughn R. Walker said he would review evidence before the closing arguments, which will likely be held in March or April.

Prop. 8, the contested 2008 ballot measure, passed by more than 52 percent of voters and restored the definition of marriage in California as a union of a man and a woman.

Backers of Prop. 8 have said there is a rational, nondiscriminatory basis for the voters’ action. Opponents have contended that a rational basis was unproven and that the measure must pass a higher standard.

They said that homosexual rights are entitled to the standard of legal protection as racial minority rights, claiming that homosexuals lack political power and have been discriminated against on the basis of a characteristic they claim cannot change.

The plaintiffs’ lawyers argued that the U.S. Supreme Court had recognized marriage as a fundamental right and therefore there was no legal reason to deny marriage to homosexuals. They claimed Prop. 8 was a product of anti-homosexual prejudice rooted in long-discredited religious and psychological theories about homosexuality.

"We said on the first day of trial we would prove three things," commended plaintiffs’ lawyer David Boes after the trial testimony ended, cbs5.com reports. "Marriage is a fundamental right; that depriving gays and lesbians the right to marry hurts them and hurts their children; and there was no reason, no societal benefit in not allowing them to get married."

Alliance Defense Fund (ADF) Senior Lead Counsel Austin R. Nimocks reported on the ADF website that one of the defense’s witnesses was David Blankenhorn, a liberal Democrat who has historically supported homosexual political causes including domestic partnerships.

However, he believed marriage should be reserved to a union between man and woman.

Blankenhorn’s opposition to overturning Prop. 8 threw “a huge wrench” into the plaintiffs’ case, according to Nimocks.

Andy Pugno, general counsel of Prop. 8 backer ProtectMarriage.com, thought his team did a “remarkable job” in its defense.

He said in a statement that “sensationalism” should not excuse the plaintiffs’ burden of proof.

“Contrary to their public relations claims, the outcome of this case does not depend on whether the Prop 8 sponsors can prove that homosexual marriage will harm traditional marriage. The controlling legal issue is not whether homosexual marriage is good or bad, but rather whether the people have the right to decide what is best,” Pugno argued. “The plaintiffs simply did not carry that burden.”

Nonetheless, he said the defense had shown that the longstanding definition of marriage is rational because marriage “benefits children, not just the adults.” A household with a mother and a father is “best for a child” and marriage between a man and a woman is the only relationship that can “biologically serve that distinct purpose,” Pugno said.

“A same-sex relationship can never offer a child both a mother and father. It's that simple.”

Pugno claimed the plaintiffs had produced a “spectacular show trial of irrelevant evidence” with assertions that recognizing same-sex “marriage” would increase tax revenues, help homosexual couples accumulate greater wealth, and improve their self-esteem.

He said these were social and political arguments, not legal arguments pertinent to the constitutionality of Prop. 8.