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Prince Research Excerpts on Gay Rights & Mormonism – “26 – Perry v. Hollingsworth”

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26 – Perry v. Hollingsworth


“Hollingsworth v. Perry refers to a series of United States federal court cases that legalized same-sex marriage in the State of California. The case began in 2009 under the name Perry v. Schwarzenegger in the U.S. District Court for the Northern District of California, where Judge Walker ruled that banning same-sex marriage violates equal protection under the law. This decision overturned the ballot initiative Proposition 8, which had banned same-sex marriage. After two governors of California, Arnold Schwarzenegger and Jerry Brown, refused to defend Proposition 8, same-sex marriage opponents appealed to the Supreme Court. It reached the United States Supreme Court as Hollingsworth v. Perry, who held that in line with prior precedent, the official sponsors of a ballot initiative measure did not have Article III standing to appeal an adverse federal court ruling when the state refused to do so.…

History of marriage

The plaintiffs called expert witness Nancy Cott, an American history scholar, who testified that ‘marriage has never been universally defined as a union of one man and one woman, and that religion has never had any bearing on the legality of a marriage’. The next day, she continued her testimony, which revolved around three key points: how marriage has historically been used ‘punitively’ to demean disfavored groups, how the legally enshrined gender roles in marriage had been disestablished during the 20th century and how the changes in the institution of marriage had mainly involved ‘shedding inequalities‘, which she said strengthens marriage. She emphasized the importance of the institution of marriage by noting that ‘when slaves were emancipated, they flocked to get married. And this was not trivial to them, by any means’.…


Professor George Chauncey of Yale University, a social historian who specializes in LGBT history, described how previous government campaigns had attempted ‘to demonize gay people as dangerous sexual deviants and child molesters’. He then analyzed campaign material from the Yes on 8 campaign to show how they played upon the same message. He analyzed the words of Dr. William Tam, which included assertions that, were California to fail to pass Proposition 8, other states would follow and ‘fall into Satan’s hands’, and that following legalization of same-sex marriage, the advocates of the ‘gay agenda‘ would attempt to ‘legalize having sex with children‘.…

Under cross-examination, defense witness David Blankenhorn revealed that he believed the principle of equal human dignity applied to gay and lesbian Americans, and that ‘we would be more American on the day we permitted same-sex marriage than we were on the day before.…


Examining the impact of same-sex marriage on children, the plaintiffs introduced Michael Lamb, a developmental psychologist at the University of Cambridge. He contended that there is a fairly substantial body of literature since the late 1970s that focuses specifically on the adjustment of children parented by gay men and lesbians which provides very good understanding of the factors that affect the adjustment of children being raised by gay and lesbian parents. This substantial body of evidence documents that children raised by gay and lesbian parents are just as likely to be well adjusted as children raised by heterosexual parents. He noted that for significant number of these children, their adjustment would be promoted were their parents able to get married. He added that a field of developmental psychology came to the conclusion that what makes for an effective parent is the same both for a mother or a father, and that children do not need to have a masculine-behaving parent figure, a father, or feminine-behaving parent figure, a mother, in order to be well adjusted. Testimony showed that California was supportive and viewed positively same-sex couple adoption, providing testimony of both the state’s experience of same-sex couples and parenting, which was not changed by Proposition 8. Defense witness David Blankenhorn, under cross-examination, concurred that the well-being of children raised by same-sex couples would improve should they be allowed to marry.…

District court opinion

On August 4, 2010, Walker announced his ruling in favor of the plaintiffs, overturning Proposition 8 based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. Walker concluded that California had no rational basis or vested interest in denying gays and lesbians marriage licenses:

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.…

Witness credibility

The expert witnesses presented by the plaintiffs were assessed as ‘amply qualified to offer opinion testimony on the subjects identified’ and ‘offered credible opinion testimony on the subjects identified.’ The defense proffered only two witnesses as experts, both assessed as poor quality who ‘either couldn’t or wouldn’t respond’ effectively to questions under cross-examination, despite the trial judge (in the analysis of watching legal analysts) ‘practically beg[ing] and cajol[ing] the Prop 8 lawyers to do better for their cause [and] to make more persuasive arguments’: David Blankenhorn, who had been allowed to testify, was ultimately judged as lacking ‘the qualifications to offer opinion testimony’. The court found that Kenneth P. Miller’s ‘opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence.’ In 2012, Blankenhorn said he had changed his opinion and now accepted same-sex marriage.…” (‘Hollingsworth v. Perry,’ Wikipedia, accessed 2/25/2016)


“The transcripts from this afternoon read like an episode of Law and Order, with the attorneys arguing with the judge over what documents ought to be introduced as evidence. These aren’t just any old documents, they are emails and letters sent back and forth between the Prop 8 campaign and Catholic, LDS, and Evangelical churches.

For example, one letter indicated that the LDS church had identified a volunteer for the campaign in every single zip code. This was a church document that was in the hands of a Prop 8 campaign official, and thus was discoverable. Andy Pugno, the general council for ProtectMarriage.com tried his darnedest to get Judge Walker to exclude it, but failed.…

This is perhaps the most explosive bit of all, from a document between the LDS Church and the campaign:

With respect to Prop. 8 campaign, key talking points will come from campaign, but cautious, strategic, not to take the lead so as to provide plausible deniability or respectable distance so as not to show that church is directly involved.

Get that? The LDS Church intentionally worked to hide behind the scenes to disguise their involvement in the public realm. The LDS Church is well aware that the general public does not have the most favorable opinion of them. Attention on their involvement could have hurt their cause, namely passing Prop 8.…” (Julia Rosen, “An Explosive Afternoon: LDS Church,” www.EqualityonTrial.com, January 20, 2010)


“Going over all these documents, we learned that over 20,000 Mormons were out door-knocking on the final few weekends. We learned that Mr. Jansson was playing a dual role, both as a leader within the Mormon hierarchy as well as in the protectmarriage.com executive board. We learned that Mormon/LDS Church leaders were powerful in the structure throughout the campaign. Of course, that was no real surprise.

Take the case of Gary Lawrence. He ran a consulting firm that did much of the polling for the Prop 8 campaign, and that role was widely acknowledged. That wasn’t the focus today, but rather the focus was Lawrence’s role of coordinating the entire Mormon effort within Orange County. Here you have a public consultant who is then running the Mormon programs while trying to hide one of these two roles. The line where the LDS Church stopped and the ProtectMarriage.com campaign began was so fuzzy as to subsume the distinction.

Of course, campaigns are often fueled by independent interest groups. It is not surprising to see a leader of an organization take leave to lead a campaign. Groups wrangle and cajole volunteers. Yet, rarely do you get word from a prophet ordering volunteers to show up. And rarely do you see a religious organization so completely subsume a campaign. Yet, the orders came in from on high, and that’s the way it was going to be.” (Brian Leubitz, “Your Right Hand is My Left Hand: The LDS Church and the Prop 8 Campaign,” www.EqualityonTrial.com, January 20, 2010)


“And when you seek ‘plausible deniability,’ we know that’s code for denying what is true. In this case, it was the Church of Jesus Christ of Latter-Day Saints’ extremely heavy and essential involvement in their successful efforts to strip LGBT Californians of their right to marry.

During this afternoon’s session in the suit to overturn California’s Proposition 8, Dr. Gary Segura of the Stanford Center for Democracy read some key memorandums from LDS leaders to the Prop 8 campaign. According to Prop8TrialTracker:

S: Reads document from Jansen who says since first Presidency of LDS church wrote letter, what will be our role? ‘As you know from the First Presidency this campaign is entirely under the direction of the priesthood…’

‘What is the next step in this campaign? I understand all grassroots organizing efforts in OC will be led by Gary Lawrence, who will report directly to the Protect Marriage.com Coalition leaders. He has also been hired…

That was interrupted by objections from the Prop 8 defense team. And while they argue, let’s review some background. Gary Lawrence was the State Grass Roots Area Director for Prop 8. He also said that to get a sense of what the war in heaven was like (in which Satan was expelled), you need to look no further than the Prop 8 campaign. ‘That battlefield is now California and the parallels between that pre-mortal conflict and the battle over the definition of marriage are striking,’ he wrote. Part of the Prop 8 defense in the trial is that their campaign wasn’t driven by animus against gay people. Comparing the battle to cast gays out of marriage with the battle to cast Satan out of heaven looks like, well, animus to me, don’t you think?

After Judge Vaughn Walker overruled the objection, Dr. Segura continued:

S: Reads document. Says Brother Jansen said LDS not to take lead, but to work through Protect Marriage. SLC had teleconference with 159 of 161 stake leaders in CA. Goal is $5million at $30 minimum donation per head.

S: Director Holland highlighted the luxury of having Mark Jansen key committees and that he will received direct communicate (sic) from him.

S: With respect to Prop. 8 campaign, key talking points will come from campaign, but cautious, strategic, not to take the lead so as to provide plausible deniability or respectable distance so as not to show that church is directly involved. We might look at religious belief as source of opposition and think that some folks would vote their religious conscience, but we would not know that this sort of direct church power is engaged. I have never seen this level of coordination in a political campaign.

…S: ‘You may know that Mormons have been out walking neighborhoods with about 20,000 volunteers.’ Speaks to breadth and size of power arrayed against gays and lesbians.

Julia Rosen calls this revelation ‘explosive.’ While these transcripts are rather crude and catch-as-catch-can, they give a sense of how deep the LDS was involved in Prop 8, and how anxious they were to hide their tracks.” (Jim Burroway, “Prop 8 Trial: Mormons Sought ‘Plausible Deniability,’” Box Turtle Bulletin, January 20, 2010)


“Andy Pugno, a lawyer for the Proposition 8 campaign, said in an interview that it was ‘astonishing’ that the court allowed into evidence internal communications of churches.

‘Today has been a major expression of religious bigotry,’ Pugno said of Wednesday’s testimony. ‘The gloves have clearly come off, and religious voters are in the cross-hairs.’” (Maura Dolan, “Prop. 8 challengers link campaign and church leaders,” Los Angeles Times, January 21, 2010)


“The transcripts for the trial are now online. Brian Moulton looks over the documents:

Perhaps the most interesting evidence presented so far were documents that detailed the coordination involved between the Catholic and Mormon churches and the Yes on 8 campaign. A letter from the Yes side’s leader thanked the Catholics for their ‘unusual’ support and the Mormons for their ‘financial, organizational, and managerial contributions.’ The Courage Campaign quotes a document between the Yes campaign and the LDS church as saying, the church will ‘… not to take the lead so as to provide plausible deniability or respectable distance so as not to show that church is directly involved.’

‘Plausible deniability’. In other words, Prop 8 was a front organization for religious groups to strip others of their civil rights on doctrinal grounds. And it was governed by a Big Lie, which is odd for a church to endorse, don’t you think?” (Andrew Sullivan, “The Mormon Hierarchy’s ‘Plausible Deniability,’” The Atlantic, January 21, 2010)


“The Church issued the following statement today in response to the ruling by Judge Vaughn R. Walker of the U.S. District Court for the Northern District of California in Perry et al v. Schwarzenegger et al:

‘The Church of Jesus Christ of Latter-day Saints regrets today’s decision.  California voters have twice been given the opportunity to vote on the definition of marriage in their state and both times have determined that marriage should be recognized as only between a man and a woman. We agree.  Marriage between a man and woman is the bedrock of society. 

‘We recognize that this decision represents only the opening of a vigorous debate in the courts over the rights of the people to define and protect this most fundamental institution—marriage.

‘There is no doubt that today’s ruling will add to the marriage debate in this country and we urge people on all sides of this issue to act in a spirit of mutual respect and civility toward those with a different opinion.’” 

(“Church Statement on Proposition 8 Ruling,” LDS Newsroom, August 4, 2010)


“Proponents abandoned previous arguments that asserted the moral superiority of opposite-sex couples because the state interest in marriage must be secular, not to enforce private moral or religious beliefs.…” (“Judge Vaughn Walker’s Ruling Overturns Proposition 8,” Reunion: The Family Fellowship Newsletter, Autumn 2010)


“This first appeared as an editorial [by Cary Crall] on September 7, 2010 in BYU’s The Daily Universe. It was taken off the website the same day it was printed, in the early afternoon:

The question remains that if proponents of Prop 8 were both unwilling and unable to support even one rational argument in favor of the amendment in court, why did they seek to present their arguments as rational during the campaign?

It is time for LDS supporters of Prop 8 to be honest about their reasons for supporting the amendment. It’s not about adoption rights, or the First Amendment, or tradition. These arguments were not found worthy of the standards for finding facts set up by our judicial system. The real reason is that a man who most of us believe is a prophet of God told us to support the amendment. [This is a privately held religious belief that we are using to support legislation that takes away a right from a minority group. If our government were to enact legislation based solely on such beliefs, it would set a dangerous precedent, possibly even more so than allowing a homosexual to marry the person he or she loves.] We must be honest about our motivation, and consider what it means to the delicate balance between our relationship with God and with His children here on earth. Maybe then we will stop thoughtlessly spouting arguments that are offensive to gays and lesbians and indefensible to those not of our faith.”

(Cary Crall, “Defending Proposition 8 – It’s time to admit the reasons,” Q Salt Lake, September 30, 2010)


“CARY: I returned from my mission in early July of 2008. My first family home evening activity in my singles’ ward was a hybrid political rally/Sunday school lesson where my duty to support Prop 8 was compared to Captain Moroni’s duty to uphold the title of liberty in the Book of Mormon. This was hard for me to swallow along with most of the other things I heard about Prop 8 in a church setting and the ensuing months were some of the most difficult of my life.…

In Sean Penn’s Oscar acceptance speech for his role portraying deceased gay activist Harvey Milk, he said, “I think that it is a good time for those who voted for the ban against gay marriage to sit and reflect and anticipate their great shame and the shame in their grandchildren’s eyes if they continue that way of support.” This comment pierced me to the core. It slapped me in the face. It changed my mind about how public I was going to be with my views.…

In an e-mail correspondence with an editor at the Daily Universe, I was informed that my letter had been pulled because there were some concerns about the letter and it was pulled from the web while being reviewed. The editor was not present at the meeting in which the concerns were expressed so she does not know what they are. She said the future of the letter on the web is in the hands of BYU faculty.…” (“Interview with BYU student Cary Crall,” ByCommonConsent.com, September 9, 2010)


“After Proposition 8 passed, Crall continued to wrestle with questions of obedience and conscience. In August 2010, when Judge Vaughn Walker of California’s Northern District Court issued his ruling overturning the same-sex marriage ban, Crall read the ruling in its entirety, paying close attention to the ruling’s numerous ‘findings of fact’ that showed many of the major claims made by Proposition 8 supporters unsupportable by evidence.

Walker’s ruling moved Crall to put his thoughts to paper, working with editors of the Brigham Young University student newspaper the Daily Universe to produce an editorial asking hard, earnest questions about what motivated Mormon participation in the Yes on 8 campaign.

The editorial (which I’ll reprint in full here for reasons that will soon become clear) went up on The Daily Universe’s Web site in the early morning hours of Tuesday, September 7:

Defending Proposition 8—It’s time to admit the reasons


Perry v. Schwarzenegger, the recent United States District Court case that overturned Proposition 8, highlighted a disturbing inconsistency in the pro-Prop. 8 camp. 

The arguments put forth so aggressively by the Protect Marriage coalition and by LDS church leaders at all levels of church organization during the campaign were noticeably absent from the proceedings of the trial. This discrepancy between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court shows that at some point, proponents of Prop. 8 stopped believing in their purported rational and non-religious arguments for the amendment.

Claims that defeat of Prop. 8 would force religious organizations to recognize homosexual marriages and perform such marriages in their privately owned facilities, including LDS temples, were never mentioned in court. Similarly, the defense was unable to find a single expert witness willing to testify that state-recognized homosexual marriage would lead to forcing religious adoption agencies to allow homosexual parents to adopt children or that children would be required to learn about homosexual marriage in school.

Four of the proponents’ six expert witnesses who may have been planning on testifying to these points withdrew as witnesses on the first day of the trial. Why did they go and why did no one step up to replace them? Perhaps it is because they knew that their arguments would suffer much the same fate as those of David Blankenhorn and Kenneth Miller, the two expert witnesses who did agree to testify.

Judge Vaughn Walker, who heard the case, spent 11 pages of his 138-page decision meticulously tearing down every argument advanced by Blankenhorn before concluding that his testimony was ‘unreliable and entitled to essentially no weight.’ Miller suffered similar censure after it was shown that he was unfamiliar with even basic sources on the subject in which he sought to testify as an expert.

The court was left with lopsided, persuasive testimony leading to the conclusion that Proposition 8 was not in the interest of the state and was discriminatory against gays and lesbians. Walker’s decision is a must-read for anyone who is yet to be convinced of this opinion. The question remains that if proponents of Prop. 8 were both unwilling and unable to support even one rational argument in favor of the amendment in court, why did they seek to present their arguments as rational during the campaign?

It is time for LDS supporters of Prop. 8 to be honest about their reasons for supporting the amendment. It’s not about adoption rights, or the first amendment or tradition. These arguments were not found worthy of the standards for finding facts set up by our judicial system. The real reason is that a man who most of us believe is a prophet of God told us to support the amendment. We must accept this explanation, along with all its consequences for good or ill on our own relationship with God and his children here on earth. Maybe then we will stop thoughtlessly spouting reasons that are offensive to gays and lesbians and indefensible to those not of our faith.

After running online for hours, Crall’s editorial disappeared from the Web edition of The Daily Universe by the morning of September 8. (I called The Daily Universe’s Editor in Chief on September 8 at about 11 a.m. PST to inquire about the status of the article; my call was not returned.) At 4 p.m. MST on September 8, The Daily Universe issued the following statement on the Web page where Crall’s article had been:

The Daily Universe made an independent decision to remove the student viewpoint titled ‘Defending Proposition 8’ after being alerted by various readers that the content of the editorial was offensive. The publication of this viewpoint was not intended to offend, but after further review we recognized that it contained offensive content. This is consistent with policy that he Daily Universe has, on rare occasions, exercised in the past.

To be sure, there’s some fancy footwork going on in that statement. But setting aside the question about who took what kind of offense from Crall’s forceful but well reasoned essay, what I find truly revealing about the story of Cary Crall and his publication-then-censorship by The Daily Universe is the window it provides on how Mormon communities are just beginning to reckon with the legacy of Proposition 8.

In August, after Judge Vaughn Walker issued his ruling, I asked here at RD:

How will Mormons who gave copiously of their time and resources process this ruling? Will Mormon communities put behind us the half-truths and insinuations about same-sex-marriage as a threat to religious freedom and the welfare of children generated by paid Yes on 8 strategists, circulated anonymously through LDS Church channels and Mormon networks, and taken by many members as gospel truth?

Two years after that fateful campaign season, I’m hearing more orthodox rank-and-file Mormons say that the heavy-handed Yes on 8 campaign sowed long-lasting divisions in their families, congregations, or neighborhoods. And the Mormon grapevine is hot with reports that Church officials have been heard to say ‘we’ll not be doing that again.’

The story of Cary Crall shows that the wheels of self-examination are turning inside Mormon communities.

And the story of Cary Crall shows that Mormon traditional values of truth-seeking, kindness, pragmatism, and ‘daring to be different’ can empower Mormons to take brave if unpopular stances in the service of conscience.

Finally, the story of Cary Crall is important because his publication-then-censorship by the Brigham Young University student newspaper shows how very conflicted, sensitive, and ambivalent Mormons at the institutional heart of our community remain about why we were asked to fight the Yes on 8 fight, what was won, what was lost, and what ends it has ultimately served.” (Joanna Brooks, “Everyone Should Know the Story of Cary Crall,” Religion Dispatches, September 12, 2010)


“The attorney who represented proponents of California’s Proposition 8 in U.S. District Court lectured Brigham Young University law students at a J. Reuben Clark Law School forum sponsored by the BYU chapter of the Federalist Society.

Charles J. Cooper’s argument for upholding Prop 8 was that marriage is, by definition, a union between a man and a woman.

‘A marriage between a man and a woman is not the core of the institution, it defines the institution,’ he said.…

Cooper said same-sex marriage could harm heterosexual couples in the long run.

‘The question is not can a same-sex couple raise a child as well as a heterosexual couple,’ Cooper said. ‘It is about the long-term effects, including contributions to society.’

In a question-and-answer period following his presentation, Cooper was asked how same-sex marriage would harm heterosexual marriage. According to BYU student Marshall Thompson, his reply was, ‘Recognizing homosexual marriage would not harm heterosexual marriage at all,’ and that it was never a point he felt he needed to prove in court.…” (“Pro-Prop 8 Lawyer Lectures at BYU,” Q Salt Lake, September 16, 2010)


“’If the decisions of federal courts can override the actions of state lawmakers on this subject [marriage],’ Oaks said, ‘we have suffered a significant constitutional reallocation of lawmaking power from the lawmaking branch to the judicial branch and from the states to the federal government.’…” (Rosemarie Winters, “LDS spread Oaks’ speech on Constitution, marriage,” Salt Lake Tribune, September 23, 2010)


“In August, a BYU student named Cary Crall who had half-heartedly participated in the Yes on 8 campaign read Judge Vaughn Walker’s ruling in Perry vs. Schwarzenegger, noting especially the failure of Proposition 8 proponents to mount evidence in support of their claims that gay and lesbian civil equality threatened religious freedom, child welfare, and ‘traditional’ family life. Crall wrote an editorial for BYU’s Daily Universe student newspaper calling upon Mormons to stop using ‘indefensible’ and ‘offensive’ rationale for their support of Proposition 8 and to ‘admit’ that they supported the measure because Church leaders asked them to. On September 7, the Daily Universe published the editorial, then pulled it from the web 24 hours later, calling it ‘offensive’ to some readers.…” (Joanna Brooks, “Mormon Leader: ‘I’m Sorry’ for Hurtful Legacy of Prop. 8,” Religion Dispatches, October 4, 2010)


[p. 733] On May 26, 2009, the California Supreme Court rejected arguments that Proposition 8 was an improper attempt to revise, rather than amend, the California Constitution and upheld the referenda.… 

On May 22, 2009, a few days before the decision upholding Proposition 8, Ted Olson and David Boies filed suit in federal court on behalf of same-sex couples, challenging Proposition 8 under the U.S. Constitution.…

[p. 734] All of the governmental defendants refused to defend Proposition 8, with the exception of the Attorney General, who conceded that it was unconstitutional. Judge Walker allowed the official proponents of Proposition 8 to intervene and defend the initiative.…

From January 11, 2010 to January 27, 2010, Judge Walker conducted a trial, inviting the parties to present and cross-examine both lay and expert witnesses to explore whether any evidence supported California’s refusal to recognize marriage between two people because of their sex. The plaintiffs presented eight lay witnesses, including the four plaintiffs, who offered moving testimony on the reasons marriage was important to them. In addition, nine highly-qualified experts on the history of marriage, the sociology and psychology of various forms of child rearing, and the economic effects of same-sex marriage testified as to the benefits of same-sex marriage and the lack of justification for excluding same-sex couples from marriage. 

The proponents of Proposition 8 “vigorously defended the constitutionality of Proposition 8” but “eschew[ed] all but a rather limited factual presentation.” The proponents presented only one witness, David Blankenhorn, to address the government’s interest in denying marriage to same-sex couples. Blankenhorn, founder and president of the Institute for American Values, was presented as an expert on marriage, fatherhood and family structure. Blankenhorn did not have a doctorate, and while he had published, he had never published in a peer-reviewed journal. Eventually, Judge Walker rejected Blankenhorn’s testimony, not simply because he lacked [p. 735] personal expert qualification, but rather because “Blankenhorn’s opinions [were] not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony. The court therefore [found] the opinions of Blankenhorn to be unreliable and entitled to essentially no weight.” 

The trial was the most extensive ever conducted on the question of whether there is any rational reason for the state to deny same-sex couples the right to marry. Judge Walker, having conducted a serious factual trial, cast most of his conclusions as findings of fact. Because they are findings of fact rather than conclusions of law, appellate courts have limited authority to reverse Judge Walker’s decision. 

On the basis of the testimony presented to him, Judge Walker found that “[m]arriage in the United States has always been a civil matter.” Indeed, Judge Walker’s opinion included a lengthy discussion of the history of the institution of marriage, including its traditional organization “based on presumptions of a division of labor along gender lines.” It noted that “[m]en were seen as suited for certain types of work and women for others. Women were suited to raise children and men were seen as suited to provide for the family.” Judge Walker found, however, that “California has eliminated [p. 736] marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependants.” Furthermore, he made extensive factual findings about contemporary understandings of the benefits of marriage—familial, emotional, psychological, and material—which are no longer gendered. 

Turning to the question of sexual orientation, informed by expert opinion, Judge Walker found that sexual orientation “is fundamental to a person’s identity” and that “California has no interest in asking gays and lesbians to change their sexual orientation . . . . Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.” Inaddition, rejecting Proposition 8 proponents’ claims that allowing same-sex marriage would undermine heterosexual marriage, Judge Walker found: “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry. . . .” 

In a key factual finding, Judge Walker also found that “[t]he children of same-sex couples benefit when their parents can marry.” He made extensive findings that whether a child is well-adjusted does not depend on the gender or sexual orientation of the parents. 

Still sticking to the facts as shown by the expert evidence, Judge Walker found that Proposition 8 reminds LGBT couples in “committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships.” Judge Walker found that “[d]omestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.” Furthermore, Judge Walker found that “[p]ublic and private discrimination against gays and lesbians occurs in California and in the United States.” Addressing the Proposition 8 campaign, Judge Walker found, as a matter of fact, that the “campaign relied on [negative] stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.” 

[p. 737] Turning from facts to law, Judge Walker noted that “[t]he parties [did] not dispute that the right to marry is fundamental.” The question presented was “whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.” Judge Walker held that “[p]laintiffs do not seek recognition of a new right . . . . Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.” Therefore,Judge Walker held that Proposition 8 is subject to strict scrutiny under the plaintiffs’ due process claim. “Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest . . . . Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny[.]”…

But Judge Walker concluded that the law also discriminated on the basis of sexual orientation: “sex and sexual orientation are necessarily interrelated, as an individual’s choice of romantic or intimate partner based on sex is a large part of what defines an individual’s sexual orientation. . . . Sexual orientation discrimination is thus a phenomenon distinct from, but related to, sex discrimination.” 

This was an important move. Reviewing the marriage law under the heightened scrutiny applicable to sex discrimination would have made Judge Walker’s decision more vulnerable on appeal because it is far from clear whether the Ninth Circuit or the Supreme Court would agree that the law should be subject to heightened scrutiny. But all laws must at a minimum satisfy rational basis review. 

[p. 738] After scrutinizing the justifications offered for Proposition 8, the court held that it failed to satisfy even rational basis review: 

Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus toward gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. . . . ‘The Constitution cannot control private biases, but neither can it tolerate them’ . . . . California’s obligation is to treat its citizens equally, not to ‘mandate [its] own moral code.’ ‘[M]oral disapproval, without any other asserted state interest,’ has never been a rational basis for legislation. 

On August 4, 2010, based on the foregoing findings of fact and conclusions of law, the district court held that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.…

On February 7, 2012, a three-judge panel of the Ninth Circuit affirmed the district court’s judgment in a 2-1 decision authored by Judge Stephen Reinhardt.… Rather, relying heavily on the Supreme Court’s opinion in Romer v. Evans, the court held that ‘[b]y using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so the People of California violated the Equal Protection Clause.” Because California is the only state where the right to same-sex marriage was repealed by referendum after such marriages had already legally taken place, the opinion does not mandate same-sex marriage beyond California.” (Michael D. Sant’Ambrogio and Sylvia A. Law, “Baehr v. Lewin and the Long Road to Marriage Equality,” University of Hawaii Law Review 33:705-53, 2011)


“Shortly after the 9th U.S. Circuit Court of Appeals issued its ruling that California’s Proposition 8 banning same-sex marriage is unconstitutional, The Church of Jesus Christ of Latter-day Saints issued a response. 

The Church of Jesus Christ of Latter-day Saints regrets todays decision, said LDS Church spokesman Michael Purdy. California voters have twice determined in a general election that marriage should be recognized as only between a man and a woman. We have always had that view. Courts should not alter that definition, especially when the people of California have spoken so clearly on the subject.

Millions of voters in California sent a message that traditional marriage is crucial to society, the LDS statement continued. They expressed their desire, through the democratic process, to keep traditional marriage as the bedrock of society, as it has been for generations.

… As far as Latter-day Saints are concerned, there are no survey numbers available specifically on the subject of gay marriage. But in a recent Pew Research Center survey of www.pewforum.org/mormons-in-america/ Mormons in America, self-identified Latter-day Saints were asked if homosexuality should be accepted or discouraged by society. Sixty-five percent of survey respondents said homosexuality should be discouraged by society, with 26 percent saying that it should be accepted.” (Joseph Walker, “LDS Church, other religious groups respond to Prop 8 ruling,” Deseret News, February 7, 2012)


“In the past year, national public opinion polls have shown that Americans are evenly split or slightly in favor of legalizing gay marriage. In a Gallup poll last May, 53 percent supported recognizing same-sex marriages — a jump of nine percentage points from the previous year. In Utah, where voters overwhelmingly approved a ban on same-sex marriage in 2004, a majority still oppose legalizing gay unions.

Sen. Orrin Hatch, R-Utah, blasted the 2-1 decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals.

‘Today, two federal judges substituted their own values for those of the 7 million Californians who enacted Proposition 8. This is judicial activism at its worst,’ said a statement from Hatch, a member of the Senate Judiciary Committee. ‘This decision was not about the law, but about judges taking power away from the people.’…” (Rosemary Winters, “Utahns react to gay-marriage ruling in California,” Salt Lake Tribune, February 7, 2012)


“A federal appeals court Tuesday struck down California’s ban on same-sex marriage, clearing the way for the U.S. Supreme Court to rule on gay marriage as early as next year.

The 2-1 decision by a panel of the U.S. 9th Circuit Court of Appeals found that Proposition 8, the 2008 ballot measure that limited marriage to one man and one woman, violated the U.S. Constitution. The architects of Prop. 8 have vowed to appeal.…

In a separate decision, the appeals court refused to invalidate Walker’s ruling on the grounds that he should have disclosed he was in a long term same-sex relationship.  Walker, a Republican appointee who is openly gay, said after his ruling that he had been in a relationship with another man for 10 years. He has never said whether he and partner wished to marry.

ProtectMarriage, the backers of Proposition 8, can appeal Tuesday’s decision to a larger panel of the 9th Circuit or go directly to the U.S. Supreme Court. The high court is expected to be divided on the issue, and many legal scholars believe Justice Anthony Kennedy will be the deciding vote.…” (“Prop. 8: Gay-marriage ban unconstitutional, court rules,” Los Angeles Times, February 7, 2012)


“A federal appeals panel in San Francisco ruled Tuesday that California’s Proposition 8, which bans same-sex marriage, is unconstitutional, a decision that could lead to the Supreme Court’s consideration of the controversial social issue.

By a vote of 2 to 1, the panel overturned the measure, which in 2008 amended the state’s Constitution to limit marriage to a man and a woman.

‘Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples,’ U.S. Circuit Judge Stephen Reinhardt wrote. ‘The Constitution simply does not allow for laws of this sort.’” (Robert Barnes, “Calif. Same-sex marriage ban ruled unconstitutional,” Washington Post, February 7, 2012)


“The first LDS response to the court’s opinion came from a member of the 9th Circuit Court panel that heard the appeal: Judge N. Randy Smith, a native of Logan, Utah and graduate of Brigham Young University and the BYU Reuben Clark Law School, who wrote the dissent.…

In his dissent, Judge Smith cited two factors that he believed could legitimate a state interest in a heterosexuals-only definition of marriage: 

(1) a responsible procreation theory, justifying the inducement of marital recognition only for opposite-sex couples, because it ‘steers procreation into marriage’ because opposite-sex couples are the only couples who can procreate children accidentally or irresponsibly;


(2) an optimal parenting theory, justifying the inducement of marital recognition only for opposite-sex couples, because the family structure of two committed biological parents—one man and woman—is the optimal partnership for raising children (22).

According to Smith, allowing gays and lesbians to marry would weaken the status of marriage for heterosexuals and result in increased heterosexual cohabitation and therefore ‘less stable circumstances for children.’…” (Joanna Brooks, “LDS Church Response to Prop. 8 Begs Question of Polygamy,” Religion Dispatches, February 8, 2012)


“One of the most remarked-upon aspects of the first round of Prop 8 litigation, that concluded this week with a 2-1 defeat for the initiative at the 9th Circuit Court of Appeals, was the weakness of the case against gay marriage. As Andrew Cohen explained at the time, at every turn Judge Vaughn Walker, who presided over the trial, expressed frustration at the fact that the opponents of gay marriage either had no case or couldn’t be bothered to make one. Arguing for the gay marriage ban, seasoned attorney Charles Cooper called only two witnesses (the plaintiffs called 17), one of whom was not deemed qualified to testify as an expert. As Cooper finally explained in his closing argument, ‘Your honor, you don’t have to have evidence for this. … You only need to go back to your chambers and pull down any dictionary or book that defines marriage,’ Cooper told the judge. ‘You won’t find it had anything to do with homosexuality.’

This defense satisfied almost no one.…

The evidence, the data, and the experts overwhelming agree that gay marriage does not harm children. And that leaves opponents of gay marriage to argue a tautology: Gay marriage is wrong because it’s wrong.

One thing is certain: The problem for proponents of Prop 8 wasn’t that they hadn’t had enough time to hone their argument. Four months later, during the argument at the appeals court, Charles Cooper again found himself unable to articulate a single plausible reason for why the ban existed in California. A far more empathetic judge in Randy Smith tried to coax one from Cooper: ‘But what is the rational basis for [the] initiative when California law says homosexual couples have all the rights of marriage, all the rights of child rearing, all the rights that others have?’ asked Smith. ‘What is the rational basis then [for Proposition 8] if in fact the homosexual couples have all the rights that heterosexual couples have? We’re left with a word: marriage. What is the rational basis for that?’

At the podium, Cooper’s answer was more or less a Zen koan: ‘Your honor, you’re left with a word, but a word that essentially is the institution,’ said Cooper. ‘If you redefine the word, you change the institution. You cannot separate the two.’ It was either the sound of one hand clapping or the perfect response to a question that appears to have no good answer.

It was, in any event, enough for Judge Smith. Unable to get a satisfactory answer from Cooper, Smith tried valiantly to muster one for himself in a lengthy dissenting opinion. What he produced was slightly less oddly metaphysical than Cooper’s statements at trial, but not much more filling. (Lest you think this is a partisan charge, here’s Maggie Gallagher making the same observation at the National Review Online about a timid dissent that amounts to nothing more than ‘don’t go after me!’)…

Smith’s reasoning does an incredible thing: It produces a justification for why the proponents of a gay marriage ban need offer no justification. Where Cooper could only deliver a ‘because-I-say-so’ theory of jurisprudence, Smith attempts to come to the rescue with a ‘because-someone-says-so’ theory of his own.…” (Dahlia Lithwick, “’Is That All You Got?’ How the proponents of a gay marriage ban just ran out of arguments,” slate.com, February 9, 2012)


“But what happens when the tide shifts? What happens when more states vote to legalize marriage equality? Will you then change your tune and call it the will of the people, or will you again call foul at media outlets and activists who voice support for gay marriage? Let’s not forget that democratically elected representatives in Washington, Washington, D.C., New Jersey, Maine and New York have all voted to legalize same-sex marriage.…” (Seth Bracken, “’Deseret News’ editorial board, stop the whining,” Q Salt Lake, May 23, 2012)


“The Supreme Court entered the debate over gay marriage, saying it would hear cases challenging a federal law and a California law that limit the rights of same-sex couples.…

The San Francisco-based Ninth U.S. Circuit Court of Appeals found Proposition 8 unconstitutional because it withdrew rights from a minority group.…” (Jess Bravin, “High Court Will Rule on Gay Marriage,” Wall Street Journal, December 7, 2012)


“[p. 784] This genealogy was provoked by two particularly riveting moments that occurred during the litigation of California’s Proposition 8 (‘Prop 8’), revealing the crux of the constitutional controversy over banning same-sex marriage. First came the ‘I don’t know’ moment. During a pretrial hearing, the federal district court judge asked counsel representing the Prop8 proponents how recognizing same-sex marriage impaired the state’s interest in regulating procreation via marriage. The Prop8 proponents’ counsel responded, ‘Your honor, my answer is: I don’t know. I don’t know.’ Not surprisingly, media reports highlighted what seemed like a critical admission. The Prop 8 proponents argued on appeal, however, that their counsel’s meaning was clarified by his full [785] statement that ‘it depends on things we can’t know’ because the impact of same-sex marriage ‘can’t possibly be known now.’ 

Second came the ‘you don’t have to have evidence’ moment. During closing argument, the Prop8 proponents’ counsel emphasized, ‘[R]esponsible procreation is really at the heart of society’s interest in regulating marriage.’ When the trial court interjected and asked counsel to identify the evidence from the trial that supported this contention, counsel replied, ‘[Y]ou don’t have to have evidence of this point.’ Again, the proponents argued on appeal that their counsel’s full response clarified his meaning: ‘You don’t have to have evidence of this point if one court after another has recognized [it].’ …

[787] Why then has the responsible-procreation defense emerged as the primary defense? Perhaps it remains because the other doctrinal arguments simply fail to withstand contemporary constitutional jurisprudence. The formal argument—asserting that the same-sex- marriage ban merely follows the definition of marriage to include only opposite-sex couples—fails on its own circularity, just as any definitional exclusion begs the question of its justification. The historical argument—asserting that the ban preserves the tradition of including only opposite-sex couples—fails because tradition alone does not suffice to justify denials of liberty and equality. The doctrinal argument—asserting that the ban is constitutional because the Supreme Court has not recognized same-sex marriage as a fundamental right or same-sex couples and their children as a suspect class so as to warrant heightened scrutiny—fails because the Court has yet to reach these questions and also because both Romer v. Evans and Lawrence v. Texas demonstrate that discrimination against gays sometimes fails even rationality review. The moral argument—asserting that the societal majority disapproves of [788] homosexuality as unnatural and/or immoral—fails because moral disapproval alone is not a sufficient justification for denials of equality or liberty. The structural argument—asserting that separation-of-powers principles would leave the question to the legislature and federalism principles would leave it to the states fails because the judiciary must enforce constitutional protections of liberty and equality against both the legislature and the states.… Finally, the typical last resort slippery-slope argument—asserting that allowing same-sex marriage will lead to a parade of horribles such as polygamy or incest or the like—fails because the law draws lines every day, and the duty of the judiciary is precisely to examine the constitutionality of these lines as challenges arise.…

[821] At trial, the proponents (1) abandoned their prior campaign reliance on morality as a defense of Prop 8; (2) failed to fulfill their promise to provide evidence demonstrating ‘twenty-three specific harmful consequences’ caused by allowing same-sex marriage; and (3) withdrew four of their six designated witnesses. Proponents called only two witnesses: one think-tank founder whose credibility was undermined by his failure to support his opinions with reliable evidence or otherwise explain his methodology, and one professor of government whose credibility was undermined by the inconsistency between his testimony and his prior publications, and by his minimal familiarity with issues relating to the relative political power of lesbians and gays.…

[822] The district court then made roughly eighty factual findings supported by over 330 subparts citing to specific evidence in the record, and it further incorporated seventy-five citations to evidence in its legal analysis.…

[823] Although the proponents of Prop 8 abandoned their campaign’s morality-based justification for Prop 8 at trial, the district court nonetheless found that the evidence at trial revealed that a belief that opposite-sex couples are morally superior to same-sex couples was ‘the most likely explanation for its passage’ and that the campaign played on fears about the dangers of exposing children to homosexuality; the court also found that the evidence at trial demonstrated that those fears were ‘completely unfounded.’ The district court concluded that Prop 8 enacted ‘a private moral view that same-sex couples are inferior,’ which alone was an improper basis for denying rights and was not supported by any rational justification.…

[824] While marriage is traditional, it also has undergone enormous change. For example, the district court emphasized that racial restrictions that were ‘once common’ are now ‘shameful’ and unconstitutional and that ‘once-unquestioned’ gender restrictions, such as the husband’s ‘coverture’ of his wife, are now regarded as ‘antithetical to the notion of marriage as a union of equals.’ The district court, therefore, focused on those characteristics of marriage that have survived throughout history and described the core components of marriage as two parties freely consenting to form a relationship that forms the foundation of a household, including mutual support of one another and of any dependents.…

The district court turned to the evidence at trial and concluded that the traditional exclusion of same-sex couples in the United States was never about procreation but was ‘an artifact of a time when the genders were seen as having distinct roles in society and in marriage,’ which has now passed. The district court also emphasized that same-sex couples are situated identically to opposite-sex couples regarding their ability to perform the core rights and obligations of marriage.…

[825] Regarding the protection of the fundamental right to marry under the Due Process Clause, the district court noted that courts must apply strict scrutiny when legislation infringes on fundamental rights and that a majority of voters may not deny such rights. The district court then reasoned that, because Prop 8 failed even rational basis review, it could not survive strict scrutiny and therefore violated due process.…

[831] The Commonwealth of Virginia’s brief to the Supreme Court emphasized that the constitutionality of interracial marriage bans had been ‘thoroughly settled’ by an ‘exhaustive array of judicial authority’ in a ‘virtually uninterrupted line of judicial decisions’ ‘covering a period of almost one hundred years.’ The Prop 8 proponents in the Perry appeal have asserted a nearly identical claim that the constitutionality of banning same-sex marriage is well settled. 

Virginia’s brief also argued that ‘an inquiry into evidence of a scientific nature’ was ‘clearly impermissible’ and ‘irrelevant.’ The Prop8 proponents similarly have argued against the consideration of evidence.…

Supporters of Prop 8 similarly have argued that the original framers of the Fourteenth [832] Amendment would not have intended for it to prohibit banning same- sex marriage.…

[835] Shortly before this Article went to press, a panel of the Ninth Circuit issued its 2–1 ruling in Perry v. Brown and affirmed the district court’s ruling that Prop8 violated the Fourteenth Amendment. The panel determined that Romer v. Evans governed its analysis and concluded that Prop 8 served ‘no purpose,’ and had ‘no effect, other than to lessen the statute and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.’…

[836] As a technical matter, the Ninth Circuit panel framed its ruling narrowly to establish binding precedent only as to the unconstitutionality of Prop 8 and did not purport to resolve the broader question of whether a state may ever deny same-sex couples the right to marry.…

[837] After considering and rejecting each potential justification, the panel inferred from Prop 8’s effect that the voters took away the designation of marriage because they disapproved of gays and lesbians ‘as a class.’…” (Julie A. Nice, ‘The Descent of Responsible Procreation: A Genealogy of an Ideology,’ Loyola of Los Angeles Law Review, Vol. 45:781-847, 2012)


“The CoJCoL-dS, along with a coalition of other churches (though I suspect the Church put most of the work into the document), have filed their amicus brief.

Looking back at the previous arguments made by Prop 8 supporters, this brief is shorter, the arguments more polished.  The main set of arguments can be summarized thusly:

  • The 14th Amendment (equal protection clause) does not prohibit states from preserving the traditional definition of marriage, because ‘value’ judgments are present in any lawmaking.
  • Only a demeaning view of religion and religious believers would dismiss advocacy for Prop 8 as ignorance, prejudice or animus.
  • Man-and-woman marriage is an axiom of Western civilization, not an attack on gay and lesbian civil rights.… It is false and overly dramatic to claim same-sex marriage is a ‘defining civil rights issue of our time.’…

The rhetoric of this is telling.  The Church is obviously wanting to take an ‘objective’ approach here, claiming that the hype over gay marriage as a ‘civil right’ is a result of manufactured drama over the years.  I do think this is true to a certain extent, as a lot of money and time goes into gay interests, which affects people’s minds, gay and straight alike.  But it is more dramatic to paint the issue of ‘redefining marriage’ as a ‘civilizational’ issue, since in the end, when the country has gay marriage, Western civilization will be fine.  The only thing that won’t be fine is that the Church will seem more out of touch.

The Church suggests that Prop 8 had a very ‘narrow and limited’ effect, since it was just about the word ‘marriage’ and not about…say, anti-sodomy laws that would throw sodomizers into jail or something.  The Church puts it thusly:  ‘We intended only to disapprove of same-sex marriage [i.e, affirm traditional marriage], rather than pass judgment on same-sex couples as people.’…” (“Church files Amicus Brief against Marriage Equality,” Main Street Plaza, February 2, 2013)


“In a statement on Monday, Affirmation, a national group for gay and lesbian Mormons, questioned why the Mormon Church would participate in a legal brief in favor of Prop 8 after backing off its support of anti-gay measures since the passage of the California’s constitutional ban on same-sex marriage in 2008.…

Spencer Clark, who’s straight and president of Mormons for Marriage Equality, said he agrees the law should provide a foundation for strong families, but said Prop 8 harms children being raised by same-sex parents. 

‘Unfortunately, Proposition 8 provides no additional benefits to straight couples while denying substantial benefits and legitimacy to gay and lesbian couples who are also raising children,’ Clark said. ‘The brief argues for a conception of marriage that blatantly ignores the hundreds of thousands of children in the United States being raised by same-sex couples, pretending that these loving families don’t exist.’

In 2008, the Church of Jesus Christ of Latter-Day Saints was among the strongest advocates of Prop 8 when it came before California voters as a ballot measure. The church called on members to become involved with the campaign, who contributed as much as half of the $40 million raised and consisted of up to 90 percent of the initial volunteer force to support the ballot measure.… 

A spokesperson for the Mormon Church in Salt Lake City said she couldn’t respond in time for Blade deadline on why the church was participating in a legal brief after adopting a more pro-LGBT tone.…

The same religious groups — including the Mormon Church — also filed a 22-page friend-of-the-court brief before the Supreme Court in favor of the Defense of Marriage Act.…” (Chris Johnson, “Mormons, religious groups file brief in support of Prop 8,” Washington Blade, February 4, 2013)


“Affirmation is also requesting clarification from LDS church officials on whether same-sex couples with or without children will be welcomed within congregations of the Mormon Church.…” (“Affirmation Contests Proposition 8 Amicus Brief Filed by LDS Church,” Affirmation.org, February 4, 2013)


“A few years ago, the Church of Jesus Christ of Latter-day Saints took a public relations beating with its financial and ecclesiastical support of California’s Proposition 8, a ballot initiative that enshrined bigotry into California’s constitution much like Amendment 3 has done in Utah. Since that time, it seemed to many that the LDS Church was entering a new era, a kindler, gentler era in which they were taking a softer stance on LGBT issues. First, a church spokesman openly endorsed non-discrimination ordinances in front of the Salt Lake City Council. Next, they remained mostly quiet during the marriage equality debates in Colorado, Washington, and North Carolina. Recently they even launched a new website, mormonsandgays.org, which took a much softer tone than the previous rhetoric, although many (including myself) view that as more of a PR stunt than an actual softening of position.

If you were wondering about this kinder, gentler Mormonism, you can stop wondering. It’s still the same old bigotry.

On January 29, 2013 Von Keetch of Kirton McConkie filed a brief with the United States Supreme Court on behalf of LDS, Inc., defending California’s Proposition 8 on the grounds that, ‘Marriage defined as the union of one man and one woman is an axiom of Western civilization…’  I guess that whole period of Mormon history where one man was married to several women didn’t really happen?

The brief argues that the LDS Church, along with several other bigoted ‘faiths,’ consider heterosexual monogamous marriages to be the cornerstone of society. It further argues that allowing same-sex couples to wed not only interferes with their religious freedom, but also spells the doom of modern civilization. They bring out all of the old, tired rhetoric and discredited studies in arguing that children of heterosexual married couples in which both are the biological parents are somehow more stable and well-adjusted.

But this is not an attack on gays. Oh, no. Arguing that same-sex couples are inherently unworthy of being parents should not be construed as insulting. No, this is just Mormons (and other evangelicals) exercising their freedom of religion. To ‘redefine marriage’ as they claim, this would be allowing gays and lesbians to destroy their faith. Makes me wonder just how strong that faith is.…” (Bob Henline, “Kinder, Gentler Mormons?” Q Salt Lake, February 14, 2013)


“The federal government recognizes four minority suspect classes that automatically fall under strict scrutiny protection. Laws which single out people or groups based on race, religion, alienage or national origin are likely to be deemed unconstitutional unless the laws are compelling, narrowly tailored and temporary ones, often such as those which deal with national security, defense or affirmative action.…

Sexual orientation is not currently a suspect class in the eyes of the federal courts…

Olsen and Boies’ arguments in the Prop 8 cases reflect the idea that sexual orientation should be protected by a higher standard than rationality – that same-sex couples are indeed part of a suspect class. Court criteria for finding groups that qualify as suspect classes include: (1) the group has been historically discriminated against and/or has been subject to prejudice, hostility, and/or stigma, perhaps due to stereotypes; (2) they have an immutable and/or highly visible trait; (3) they are powerless to protect themselves using political processes; and (4) the group’s distinguishing characteristic does not inhibit it from contributing meaningfully to society.…” (Laura Compton, “Scrutinizing scrutiny: Same-sex rights on trial,” NoMoreStrangers.org, February 15, 2013)


“Following the ruling by Judge Walker, the case was appealed to the United States Court of Appeals for the Ninth Circuit. By a vote of two to one, the Circuit Court panel upheld Judge Walker’s ruling but on much narrower grounds than the judge had articulated. (The lone Circuit Court dissent was filed by Randy Smith, the LDS judge.) The majority relied on the precedent of Romer v. Evans, holding that by taking the right to marry away from same-sex couples, Prop 8 was based on ‘animus’ toward gay couples rather than rational grounds.…

The Church’s Amicus Brief

I will refer to it as ‘the LDS brief’ because Salt Lake City’s Kirton McConkie, the Church’s primary outside counsel, filed it and there seems little doubt that the Church is the controlling party. The other co-amici probably contributed to the funding of the brief.…

The Kirton McConkie lawyers who are listed on the brief are all shareholders of the firm—Von Keetch, Alexander Dushku and Shawn Gunnarson. While I don’t know any of them personally, by reputation they are all fine lawyers who have acknowledged expertise in the area of First Amendment law. All three received both their bachelors and law degrees from Brigham Young University. Keetch is the chief outside counsel for the Church and was ranked first in his law school class.…

Is One-Man One-Woman Marriage an Axiom of Western Civilization? The Church leads off, in the very first sentence of the ‘Summary of Argument,’ with this observation: ‘Marriage defined as the union of one man and one woman is an axiom of Western civilization….’ (Brief, Page 1) This, of course, is the same argument that politicians and lawyers used against the Church in the nineteenth century as they passed various anti-polygamy laws targeting Mormons. Here is a quote from the Supreme Court decision in Reynolds v. U.S. (1878), the most famous of the anti-polygamy cases:

‘Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.’

Isn’t it interesting how the worm turns? Now the lawyers for the Church are using the ‘western civilization’ argument in an attempt to stigmatize a non-traditional marriage practice, just as non-Mormons did in the nineteenth century when attacking Mormon polygamy.

One wonders how much longer the argument can be made that one-man one-woman marriage is axiomatic of western civilization. There are now eleven countries in which same-sex marriage is legal, and several others where it is legal in certain parts. All of these countries are western nations. Bills are pending in another ten or so western countries which would legalize same-sex marriages if passed. Indeed, the last countries to accept same-sex marriage are likely to be the Islamic fundamentalist nations (many of which, of course, have legalized polygamy and are seen as hostile to women and other minorities).…

Were the Campaigners for Prop 8 Motivated by Animus Toward Homosexuals? The lawyers for the Church are understandably eager to counter any suggestion that Mormons were motivated by animus. ‘Those among us who campaigned for this law,’ they say, ‘did not do so out of anti-gay animus or a benighted ‘judgment about the worth and dignity of gays and lesbians as a class.’’ (Page 7)

Unfortunately, as many of us who lived through the Prop 8 campaign in California can attest, a great many of the supporters of Prop 8, including Church members, were quite open in their disparagement of gays and lesbians as a class of people. I have personally heard members decry the fitness of gays and lesbians to be parents, opine that most homosexuals are promiscuous, claim that being gay is a choice and that those who choose it are committing a sin, and even declare that the AIDS epidemic was God’s judgment on homosexuals. One woman expressed in testimony meeting her regret that her niece had gone to Stanford where she had ‘gotten involved with drugs, sex and supporters of gay marriage.’ In a talk from the pulpit, a member of our stake presidency compared opponents of Prop 8 to Satan’s minions; however, to be fair, he was quoting from an article in Meridian Magazine written by the leader of the Church’s California campaign.…

A brochure titled ‘10 Reasons to Protect California’s Marriage Law with a Constitutional Amendment‘ was passed out at Church meetings. So as not to get bogged down, I’ll only quote three of its astounding arguments (emphasis in the original):

Children Need Fathers: Same-sex marriage deliberately creates motherless or fatherless families. If same-sex marriage becomes common, social scientists predict the majority of same-sex couples with children would probably be lesbians. This means there would be more children growing up apart from fathers. Studies are conclusive that fatherless households increase crime. Boys whose parents divorced or never married are two to three times more likely to end up in jail as adults.…

The first paragraph relates to broken heterosexual homes; no legitimate studies have shown that children raised by gay parents are more likely to be criminals.…

Another flyer that was passed out in Church meetings was called ‘Six Consequences the Coalition Has Identified If Prop 8 Fails.’[7] These so-called adverse consequences were legal in nature. Some reflected animosity toward homosexuals in addition to being factually inaccurate. (‘Children in public schools will have to be taught that same-sex marriage is just as good as traditional marriage.’) Others were based on legal cases, but they were cases that arose from existing laws prohibiting discrimination against homosexuals, not laws permitting same-sex marriage, and thus were irrelevant to Prop 8. I became personally involved in rebutting that handout by writing ‘A Commentary on Six Consequences if Prop 8 Fails.’ Although I was led to believe by Church authorities, after publishing my commentary, that use of the Six Consequences would be discontinued, apparently any such direction failed to reach many on the local level and I know personally of instances of its being handed out in some wards on the eve of the election.…

Do the proponents of same-sex marriage have a vision of marriage that ‘competes’ with heterosexual marriage? My question is this: Why do these two visions of marriage need to be seen as ‘competing?’ Can’t marriage serve both functions—rearing children and providing for the well-being of the marriage partners?…

The District Court made some eighty findings of fact based on the evidence presented at trial. Here is just a sampling:

  • Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.
  • California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California.
  • California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children.
  • The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.
  • Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.
  • The children of same-sex couples benefit when their parents can marry.
  • Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.
  • Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.
  • The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.
  • Studies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents in stable, long-term relationships.
  • Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes.
  • The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.…

In this case the District Court determined that religious value judgments cannot be a reason to deny same-sex couples the right to be married because those value judgments are not based on factual evidence of any societal benefit. This is not the case with gambling and prostitution, both of which can easily be shown to have provable negative consequences.…

The objective fact is that same-sex marriages do nothing to harm traditional marriages, they do not have a harmful impact on morals, nor do they adversely impact children. Quite the contrary, the District Court found that permitting same-sex couples to marry would have a positive effect on public morals and beneficent impact the children of those couples.…” (Morris A. Thurston, “Prop 8 in the Supreme Court: The Church Weighs In,” NoMoreStrangers.org, February 19, 2013)


“David Blankenhorn, founder of the family-focused Institute for American Values think tank, was the prime witness in 2010 in the opening round of the federal trial of Prop. 8. Blankenhorn struck up unlikely friendships with gays while debating the issue in public, and he was sitting at his desk one day last year, when one called and told him to go to a website with a strident, anti-gay article.

‘He said, ‘Are you sure that this is the side you are on?’‘ Blankenhorn recalled. He put down the phone, and in that moment realized he had already changed his mind.

‘I have a kind of intellectual reason for shifting from one foot to the other foot,’ he said ‘But I really, honestly think that it was through just personal interactions… if you want to stick with your position, don’t get to know people who disagree with you.’…” (Peter Henderson, ‘Insight: Silent or supportive, conservatives give gay marriage momentum,’ Reuters, March 25, 2013)


“U.S. Supreme Court decisions striking down DOMA and California’s Proposition 8 mean a reflective morning for Mormon people. No religious group invested more heavily in the fight against marriage equality in California than members of the Church of Jesus Christ of Latter-day Saints, who make up 2% of California’s population but who are estimated to have contributed between 50%–70% of the $40 million raised by the Yes on 8 campaign and the majority of its on-the-ground volunteer labor force.…

Meanwhile, Mormon conservatives seem to be accepting the news quietly, with some staking out a defensive position in defense of religious freedom.…

Who has fully counted the costs to Mormon families and congregations of having our places of worship mobilized as political cells in a gravely expensive, divisive, and futile political campaign? I simply cannot count the number of Mormons who have told me that the reason they started to question their church or left it altogether was Proposition 8, nor can I begin to enumerate the strain on relationships in Mormon families and congregations and between Mormons and their non-Mormon friends and neighbors.…” (Joanna Brooks, “Mormons Absorb SCOTUS Prop 8 Ruling,” Religion Dispatches, June 26, 2013)


“The Church of Jesus Christ of Latter-day Saints released the following statement today regarding the decisions announced by the United States Supreme Court on cases involving marriage:

By ruling that supporters of Proposition 8 lacked standing to bring this case to court, the Supreme Court has highlighted troubling questions about how our democratic and judicial system operates. Many Californians will wonder if there is something fundamentally wrong when their government will not defend or protect a popular vote that reflects the views of a majority of their citizens.…

Notably, the court decision does not change the definition of marriage in nearly three-fourths of the states.”

(“Church Responds to Supreme Court Marriage Rulings,” LDS Newsroom, June 26, 2013)


“Our theology begins with heavenly parents, and our highest aspiration is to attain the fulness of eternal exaltation. We know this is possible only in a family relationship. We know that the marriage of a man and a woman is necessary for the accomplishment of God’s plan. Only this marriage will provide the approved setting for mortal birth and to prepare family members for eternal life.…

For example, we believe that, as an essential part of His plan of salvation, God has established an eternal standard that sexual relations should occur only between a man and a woman who are married.…

Outside the bonds of marriage between a man and a woman, all uses of our procreative powers are to one degree or another sinful and contrary to God’s plan for the exaltation of His children.…

Our knowledge of God’s plan for His children explains why we are distressed that more and more children are born outside of marriage—currently 41 percent of all births in the United States—and that the number of couples living together without marriage has increased dramatically in the past half century. Five decades ago, only a tiny percentage of first marriages were preceded by cohabitation. Now cohabitation precedes 60 percent of marriages.…

Other pressures would confuse gender or homogenize those differences between men and women that are essential to accomplish God’s great plan of happiness.

Our understanding of God’s plan and His doctrine gives us an eternal perspective that does not allow us to condone such behaviors or to find justification in the laws that permit them. And, unlike other organizations that can change their policies and even their doctrines, our policies are determined by the truths God has identified as unchangeable.

Our twelfth article of faith states our belief in being subject to civil authority and “in obeying, honoring, and sustaining the law.” But man’s laws cannot make moral what God has declared immoral.…

Similarly, laws legalizing so-called “same-sex marriage” do not change God’s law of marriage or His commandments and our standards concerning it. We remain under covenant to love God and keep His commandments and to refrain from serving other gods and priorities—even those becoming popular in our particular time and place.…

We must never deviate from our paramount desire, which is to achieve eternal life. We must never dilute our first priority—to have no other gods and to serve no other priorities ahead of God the Father and His Son, our Savior, Jesus Christ.” (Dallin H. Oaks, “No Other Gods,” General Conference address, October 2013; Ensign, November 2013)


“Human laws may change to include same-sex marriage, but moral laws don’t, two high-ranking Mormon leaders said Sunday.

God meant marriage for a man and a woman, they said. Anything else is sin.…

On the second and final day of the LDS Church’s 183rd Semiannual General Conference, apostle Dallin H. Oaks bemoaned America’s dropping birthrates, later marriages and rising incidence of cohabitation as evidence of ‘political and social pressures for legal and policy changes to establish behaviors contrary to God’s decrees about sexual morality and the eternal nature and purposes of marriage and child-bearing.’

These pressures ‘have already permitted same-gender marriages in various states and nations,’ Oaks told 20,000 Mormons gathered in the Conference Center in downtown Salt Lake City and millions more watching worldwide via telecasts and the Internet. ‘Other pressures would confuse gender or homogenize those differences between men and women that are essential to accomplish God’s great plan of happiness.’

An LDS eternal perspective does not allow Mormons ‘to condone such behaviors or to find justification in the laws that permit them,’ said the apostle, a former Utah Supreme Court justice. ‘And, unlike other organizations that can change their policies and even their doctrines, our policies are determined by the truths God has declared to be unchangeable.’

The LDS stance against same-sex marriage might be misunderstood, elicit ‘accusations of bigotry’ or trigger ‘invasions of our free exercise of religion,’ he said. But ‘we should remember our first priority — to serve God — and, like our pioneer predecessors, push our personal handcarts forward with the same fortitude they exhibited.’

Apostle Russell M. Nelson, a former surgeon, echoed Oaks’ sentiments about same-sex marriage.

‘Marriage between a man and a woman is fundamental to the Lord’s doctrine and crucial to God’s eternal plan,’ Nelson said. ‘Marriage between a man and a woman is God’s pattern for a fullness of life on Earth and in heaven. God’s marriage pattern cannot be abused, misunderstood or misconstrued.’…” (Peggy Fletcher Stack, “Leaders: Mormons Cannot Condone Same-Sex Marriage,” Salt Lake Tribune, October 7, 2013)


“California: An explosive strategy

The mantra of the legal community seeking a right to gay marriage in 2009 was still the same: slow and steady progress; don’t risk making bad law for the whole country.

But Ted Olson’s legal strategy more resembled a jailbreak.

Hired against type by Hollywood celebrities to overturn California’s ban on same-sex marriage, known as Proposition 8, the conservative, Republican Olson was ready to go for broke. His lawsuit, filed in San Francisco, said that all state prohibitions violated the U.S. Constitution.

He intended to quickly bring the issue before the Supreme Court, a familiar venue where he had argued dozens of cases and represented Bush in Bush v. Gore.…

But the advocates hated Olson’s strategy. They feared that years of work would be lost if he had miscalculated the Supreme Court’s readiness to rule in favor of gay marriage.

They caught a break when U.S. District Judge Vaughn R. Walker slowed things down. He, too, knew that the case was likely headed to the Supreme Court and insisted on making the record complete with a trial, with witnesses, cross-examination and ‘a full airing of the issues,’ he said in a recent interview.

‘At bottom, the constitutional issues associated with same-sex marriage are not all that complicated,’ Walker said. It seemed clear that equal protection and due process rights were compromised by denying marriage licenses to gay couples, ‘so I thought it would be useful to see just what the state’s justification was.’…

Witnesses had to be experts in their fields, sworn in to tell the truth, challenged by cross-examination.

On Aug. 4, 2010, Walker handed down a 136-page ruling in Perry v. Schwarzenegger, finding that Prop 8 violated both the Equal Protection and Due Process clauses of the 14th Amendment. His opinion listed 80 findings of fact about marriage and child-rearing drawn from the trial testimony.

‘It made a record for everybody else,’ Olson said. ‘Other judges throughout the country constantly cited that, and it influenced public opinion.’…

‘People who said kids don’t do well in gay households — we were able to say, ‘Where’s your evidence?’ ’ Olson recalled. ‘People said it would damage traditional marriage. We said, ‘Where’s your evidence?’ ’…” (Robert Barnes, “Decades of battles converged for momentous decision: From Hawaii to White House, gays’ right to marry seemed far from inevitable,” Washington Post, June 27, 2015)

Perry v. Schwarzenegger Trial Transcript

Day 1, January 11, 2010


[p. 33] The history, a point I was just about to make, of [p. 34] marriage has evolved. It has changed to shed irrational, unwarranted and discriminatory restrictions and limitations that reflected the biases, and prejudices, and stereotypes of past. 

Marriage laws that disadvantaged women or people of a disfavored race or ethnicity have been eliminated. Some of those changes have come from court decisions, and some of those changes have come from legislative changes. 

But those changes have not harmed the institution of marriage. They have not harmed the institution of marriage.…

[p. 41] The State of California, the State of California, who has this proposition in its constitution, has no justification, none, for the decision to eliminate the fundamental right to marry for a segment of its citizens. It offers no defense.…

And the evidence will show that each of the rationalizations for Proposition 8, invented, invented by its proponents, is without merit. 

They mention procreation. Procreation cannot be a justification, inasmuch as Proposition 8 permits marriage by persons who are unable or who have no intention or no ability, whatsoever, to have children or produce children. 

[p. 42] Indeed, the institution of marriage, civil marriage in this country, has never been restricted or tied to the procreative activity of those who enter into it. 

Proposition 8 also has no rational relationship to the parenting of children — although, this is what the proponents are now saying — because same-sex couples and opposite-sex couples are equally, in California, permitted to have and raise children in this state.…

And as for protecting, the point you made earlier, traditional marriage, our opponents — you asked this question. Our opponents don’t know how permitting gay and lesbian couples to marry would harm the marriage of opposite-sex couples. 

And, needless to say, guesswork, speculation about what might happen or what might not happen is an inadequate [p. 43] justification for discrimination.…

At the end of the day, whatever the motives of the — whatever the motives of its proponents, Proposition 8 enacted — and this goes back to yet another one of your points — enacted an utterly irrational regime to govern entitlement to the fundamental right to marry, consisting of four separate and distinct classes of citizens: 

First, heterosexuals, including convicted criminals, substance abusers, and sex offenders, who are permitted to marry. And their marriage is recognized in California. 

Second, 18,000 same-sex couples married between June [p. 44] and November of 2008, are allowed to remain married. But if they divorce or if they lose their spouse by widowhood, they can’t remarry. 

And, third, thousands of same-sex couples, as of the first of the year, who were married in certain other states prior to November of 2008, those marriages are now valid and recognized in California. People who were married someplace else and came to California, their marriage are recognized. 

But, fourth, the fourth category are the people that we represent, the plaintiffs and hundreds of thousands of other Californian same-sex couples who are prohibited by
Proposition 8 from marrying. 

At the end of the day, there is no rational justification for this unique pattern of discrimination. 

Proposition 8 and this irrational pattern of category, category, category –…


[p. 55] Only five states, your Honor, have opened the institution of marriage to same-sex couples and three of those had it imposed upon them by judges.…


[p. 194] A. I began my book by focusing on the place of marriage in the views of the founders of the American republic. And they were very much aware of what a minority, in among all the peoples of the globe, their form of marriage constituted. 

They were very aware that most of the peoples in the globe, at that time, practiced polygamy or group marriage, or as they saw among Native Americans, other forms of marriage quite different from their own. 

And, in fact, that was one of the great discoveries of colonization and exploration by Europeans and British people in the rest of the globe, that forms of marriage were so various in other cultures and among other peoples. 

So that, simply from my expertise in American history, makes me very aware that there have been many forms of marriage that have been qualified and sanctioned by the societies that have invented them.…

[p. 195] Q. In what manner has the institution of marriage in the United States historically been deemed a civil matter as opposed to a religious matter or some other type of entity?

A. This has been characteristic in all the states of our nation since their founding, that the civil law has been supreme in defining and regulating marriage. 

Even while most of the people involved in writing these laws were — found no objection to religious ceremonies, they felt that marriage was a civil matter. So much of it had to do with property and inheritance and the economy, things that civil law was principally concerned with. 

And in all the American states, at the founding of the nation and then continuingly, the civil law has controlled marriage.

Q. In your evaluation from a historical perspective, what role has religion played in the institution of marriage in the [p. 196] United States?

A. Religion has been in the background of many, perhaps most Americans’ understanding of marriage, and has influenced their own practices, whether sacramental or otherwise, and often their ceremonial practices. That’s been extremely common. But these are apart from and have no particular bearing on the validity of marriages. 

Any clerics, ministers, rabbis, et cetera, that were accustomed to seeing — performing marriages, only do so because the state has given them the authority to do that. And they do that as the delegate of the state.…

[p. 207] The restrictions on marriage as they have been removed have tended to make the institution more appealing, more — more clearly an equal right that people share. And so I would say that the removal of such restrictions has tended to strengthen the institution.…

[p. 208] Q. Let me ask you this. How does the cultural value and the meaning, social meaning of marriage, in your view, compare with the social meaning of domestic partnerships and civil unions? 

A. I appreciate the fact that several states have extended — maybe it’s many states now, have extended most of the material rights and benefits of marriage to people who have civil unions or domestic partnerships. But there really is no comparison, in my historical view, because there is nothing that is like marriage except marriage. 

Day 2, January 12, 2010


[p. 219] Q. Professor Cott, I have displayed on the screen one of Mr. Cooper’s statements yesterday about the purpose of marriage. And I will read it for the record. Mr. Cooper said that: 

“The purpose of the institution of marriage, [p. 220] the central purpose, is to promote procreation and to channel naturally procreative sexual activity between men and women into stable and enduring unions … it is the central and we would submit defining purpose of marriage.” 

In your work as a historian, have you examined the purposes of marriage in the United States?

A. Yes.

Q. Could you give me your views, as an expert in the history of marriage in the United States, as to that statement by
Mr. Cooper in his opening statement.

A. I could.

Q. Would you do that for me.

A. Let me begin by saying, when I’m speaking of the purposes I mean from the point of view of the state that sets up and defines the terms of marriage. 

And as I look at the history of the institution in our country, I would certainly agree that this is one of the purposes. But it is by no means the central or the defining purpose of marriage. 

In fact, picking this out rather — when I heard it yesterday, it rather reminded me of the story about the seven blind men and the elephant, in that each of them is feeling the animal at some side of it; and the one that feels the trunk [p. 221] says, oh, this animal is just like a snake. 

That is, marriage has many purposes. It is, as I mentioned yesterday, a capacious, complex institution. And the state’s interest in having sexual activity between men and women channeled into stable unions is one of the purposes of marriage. 

But I think that the larger understanding of marriage, from the state’s point of view, and the larger purpose would put an emphasis on the household formation that marriage founds, and the stability of that household formation, its contribution to social order, to economic benefit, to governance.…

And long ago marriage had an important political governance purpose. It set up men as heads of households who would be responsible economically for their spouses and for any [p. 222] of their dependents, whether those were biological children, adopted children, stepchildren, slaves, apprentices, et cetera. 

But the point of establishing marriage and giving certain benefits to it was to ensure that the sovereign would be able to govern the amorphous, large, variable population in smaller subunits which were households. 

Now, that political governance purpose of marriage today is — has shifted rather dramatically, because we no longer assume that a single head of household governs everyone below it. We have a much more individualized distribution of political power in our population, particularly since 1920, when women got the right to vote. 

However, still today, the purpose of the state in licensing and incentivizing marriage is to create stable households in which the adults who reside there and are committed to one another by their own consents will support one another as well as their dependents. 

The institution of marriage has always been at least as much about supporting adults as it has been about supporting minors, children, as the proponents tend to emphasize the child’s side.…

[p. 223] Of course, people beyond procreative age have always been allowed to marry. And known sterility or barrenness in a woman has never been a reason not to allow a marriage.…

But this is just a rather striking example of the extent to which procreative ability has never been a qualification for marriage. Nor has it been a ground — the lack of same has never been a ground for divorce.…

[p. 237] Q. Now, at some point, the racial restrictions and the limits on marrying persons across color lines were abolished, correct? 

A. Yes.

Q. And when — when that happened, were alarms sounded in the populace regarding what might happen to the institution of marriage?

A. Yes. These –

Q. Could you describe how people reacted, and the kind of arguments that were made at the time.

A. Yes. Of course, these were state laws. And the shifts and change in them, both the passage of them and the removal of them, there were a lot of cycles. 

There was a big burst of these laws being passed in 1913, for instance. Even though one might think they were being seen to be overly restrictive, they recurred through American history. 

In fact, it’s quite striking that even though the [p. 238] U.S. Supreme Court, in 1923, first named the right to marry as a fundamental right, the very next year, in 1924, Virginia passed the most restrictive law in the nation about whites and blacks marrying. 

Now, there has always been — just by the same token that these laws were defended as naturally-based and God’s plan just being put into positive law, the efforts to undo them met extreme alarm among those who thought these laws were correct. 

And while the question of the constitutionality of these laws could have come before the U.S. Supreme Court earlier than the Supreme Court did decide on that question, because this was thought to be such a hot-button issue and be such a matter of controversy, the U.S. Supreme Court approached it extremely cautiously, and did not take it — although, they could have taken a case in 1955, which would have brought this issue before the nation, they waited until the case that was decided in 1967, which came from Virginia and from that extremely restrictive law passed in 1924. 

So, yes, there have — all along that history was — the subject was extremely controversial, and the people who supported such laws saw these as very important definitional features of who could and should marry, and who could not and should not. 

Q. Did proponents of those laws argue that the abolition of them would ruin the institution of marriage? 

[p. 239] A. I don’t know whether the word “ruin” was used. But, certainly, they assumed that should couples across the color line be admitted to marriage, that the institution would be degraded, that their own marriages would somehow be devalued. Q. And, as a historical matter, in your view, were they correct or incorrect in those assumptions? 

A. I think they were incorrect. 

Q. Why is that?

A. Well, there has been no evidence that the institution of marriage has been become less popular because — or less valued by people or by the state, even though couples needn’t — white people can marry whoever they want. So that it doesn’t seem, to me, to have been borne out in the history.…

[p. 248] Q. Do you have a view, based on your historical research and study, as to how those trends bear on the issue of whether individuals of the same gender should have the right to marry?

A. It does seem to me that that direction of change leans consistently toward — toward the appropriateness of allowing same-sex couples to marry. 

Q. Why is that?

A. Because if gender symmetry and equality and the couples’ own definition of spousal roles are characteristic of marriage, then same-sex couples seem perfectly able to fulfill those roles. 

There is no longer an expectation that the man-woman difference need found household, given that the sexual division of labor is no longer so pronounced in our society and isn’t, I hope, a founding feature of our economy and how economic benefit is created.…

[p. 250] Q. Are you aware of any evidence, empirical evidence, [p. 251] that bears on the issue of whether a law allowing individuals of the same gender to marry would affect the divorce rate?

A. My only comment can come from observation of my home state of Massachusetts, which has had same-sex marriage for five years now. And this is, of course, only a correlation, but Massachusetts has the lowest divorce rate in the nation. 

Q. And has it increased since marriage between individuals of the same sex has been recognized?

A. No. It has fluctuated but — around a tenth of a percentage point. But, if anything, the direction has been down rather than up.…

[p. 252] Q. Do you believe that a law recognizing the ability of individuals of the same sex to marry would be consistent and would include those characteristics you have just identified as being defining? 

A. Yes.

Q. Why?

A. It seems to me that couples of the same sex have expressed many of the same motivations as couples of different sex to marry and to establish stable households. 

And, in that regard, especially in an era when families can have children that are not the result of biological procreation, and so many families do, that it seems to me same-sex couples fulfill the aims of marriage from the point of view of the state. 

And, certainly, it’s up to any partner — intimate pair to decide whether they wish to be married or not. But seems to me that by excluding same-sex couples from the ability to marry and engage in this highly-valued institution, that society is actually denying itself another — another resource for stability and social order.…


[p. 384] In 1953, shortly after Dwight Eisenhower became president, one of his first executive orders decreed that civilian — that homosexuals would be prohibited from civilian as well as military employment in the federal government. 

And it actually also required private companies, which had contracts with the government, to ferret out and fire their homosexual employees.

Q. When — well, first, let me ask you, how did the McCarthy senate’s treatment of gay people in their investigation compare to their treatment of Communists?

A. Uhm, well, they — they gave a lot of attention, of course, to Communists, and were quite concerned about Communist infiltration into the State Department in particular, and other agencies of the government. 

But the historian who has done the closest study of this policy estimates that at the height of the McCarthy period in the 1950s, the State Department actually dismissed more suspected homosexuals than Communists.…

[p. 397] I think, in some ways the most dangerous stereotypes for homosexuals really developed between the 1930s and ’50s, when there were a series of press and police campaigns that identified homosexuals as child molesters. As not just effeminate queens you might laugh at but had no real reason to fear, but actually as hyper men who were unconstrained by women and who threatened the nation’s children. 

And this image was really driven home in a series of press campaigns around the country, usually sparked by some particularly awful murderer or attack on a child. Although, almost all of those attacks were men attacking girls. But under the theories of the day, that ended up being something you could lay at the feet of homosexuals.…

[p. 418] Q. Dr. Chauncey, would you tell the Court generally about the themes that were used in the Save Our Children campaign that Anita Bryant led in 1977? 

A. Yes. When they began the campaign their polling data showed that there was a margin of support for the anti-discrimination ordinance and that groups that they were worried would support it, they needed to persuade. 

And so they decided to focus on some of what they argued were the consequences of allowing an anti-discrimination law to stand, and they focused particularly on the effects that this might have on children. 

They made a variety of arguments, but two of them were that the simple tolerance of gay people — or allowing gay people to be open, particularly if they were teachers or in other positions where they might interact with children, would allow them to serve role models — as role models that would encourage children to become homosexual themselves. 

There was sort of — there was a presumption here [p. 419] that sexual identity is unstable, that children are easily swayed to homosexuality, and that this would be a real danger. 

And then they emphasized that point by drawing on the stereotypes, whose development I have described, to argue that homosexuals were child molesters and that, in effect, to allow this anti-discrimination ordinance to stand would be to release homosexual predators onto the children of Miami. 

I would comment, also, they periodically would sort of say, We are willing to tolerate homosexuals so long as they don’t flaunt their lifestyle, which was just basically to say so long as they aren’t open about being gay.…

Q. Dr. Chauncey, would you take a look at page 303 of Exhibit 64 to the book Out For Good. And look at the bottom of that page, the second to last paragraph, and read the language in [p. 420] quotes that is ascribed to Anita Bryant in connection with that campaign.

A. She is quoted here as saying: 

“Some of the stories I can tell you of child recruitment and child abuse by homosexuals would turn your stomach.” 

Q. Would you also quote from the newspaper advertisement that’s quoted further down in that paragraph?

A. (As read) 

“This recruitment of our children is absolutely necessary for the survival and growth of homosexuality, for since homosexuals cannot reproduce, they must recruit, must freshen their ranks. And who qualifies as likely recruits, a 35-year-old father or mother of two” — sorry. “Who qualifies as a likely recruit, a 35-year-old father or mother of two, or a teen-age boy or girl who is struggling, surging with sexual awareness?”…

[p. 421] Q. Would you take a look as well at the — I’m sorry. Going back to Out For Good, the Exhibit 864, the top of page 304, and read the material quoted from the Miami Herald advertisement that’s at that part of the book?

A. Okay. So this is from an ad. It reads: 

“There is no human right to corrupt our children. Many parents are confused and don’t know the real dangers posed by many homosexuals and perceive them as all being [p. 422] gentle, non-aggressive types.

“The other side of the homosexual coin is a hair-raising pattern of recruitment and outright seduction and molestation, a growing pattern that predictably will intensify if society approves laws bringing legitimacy to the sexually perverted.” 

Q. Dr. Chauncey, would you turn to page 306 of Out For Good and read the language quoted from Anita Bryant in the bottom paragraph about the middle of that paragraph? 

Well actually — yes. It begins, “Homosexuality is a conduct.”

A. (As read) 

“Homosexuality is a conduct, a choice, a way of life. And if you choose to have a lifestyle as such, then you’re going to have to live with the consequences. It’s not a sickness, but a sin.”…

[p. 429] Q. Professor Chauncey, I have one more question and the question is: Have you written about the parallels between from the religious debates over segregation and the religious debates over same-sex marriage? And if so, could you describe those parallels?

A. … What’s, I guess, striking to me is that — and many other historians have commented on this, written about this, is that, in fact, during the civil rights era, very many southern white Christians believed very deeply and sincerely that segregation was part of God’s will for humankind. 

Reverend Jerry Falwell himself preached a sermon in 1958 criticizing the Supreme Court’s Brown v Board of Education decision as going against God’s will and warning, actually, that it could lead to interracial marriage, which was then sort of the ultimate sign of black and white equality. 

And so, I guess, I just want to suggest here that there are — people hold their beliefs very deeply, and they read scripture by their own lights. You know, as we see in history, their interpretations of that scripture change over time. 

And that in the — I’m just struck by the degree to which religious arguments were mobilized in the 1950’s to argue that — against interracial marriage and integration as against God’s will in a way that arguments have been mobilized in this campaign and the other — many of the other campaigns I have described since Anita Bryant’s argue that we need to do this because homosexuality itself or gay people or the recognition [p. 441] of gay people, the recognition of their equality, is against God’s will.…

Day 3, January 13, 2010


[p. 575] Q. Is there any evidence, of which you are aware, that lesbians and gay men feel the same way about marriage as heterosexuals?

A. Yes. Of course, for, in most states, asking lesbians and gay men about marriage is a hypothetical question, but that question has been asked. 

In a recent survey conducted by the Kaiser Family Foundation the question asked was: “If you were able to legally marry someone of the same sex, would you like to do so at some time in your life?” 

And the majority of lesbians and gay men, 74 percent, said that, yes, indeed, they would like to get married if they had that option.…

[p. 576] Q. Dr. Peplau, are you aware of any research on the subject of whether people in this country value domestic partnerships to the same extent as they value marriage?

A. Researchers have been interested in whether lesbians and gay men would prefer to get married or would prefer other options such as civil unions or registered partnerships. 

Evidence on this point comes from research done by Gary Gates, Lee Badgett, and others. And what these researchers did was to ask the question — we now have several states that have options for civil unions or registered partnerships. And they asked the question, across all of those [p. 577] states that permit that: In the first year, what percent of same-sex cohabiting couples in the state actually took advantage of that option? 

And then they asked, in Massachusetts, where marriage is the option: In the first year that marriage was available to same-sex couples, what percent got married? 

And what they found was that, whereas, across the states that permit civil unions and partnerships, about 10 to 12 percent of couples in the first year took that option. 

In contrast, in Massachusetts, when marriage became available, something like 37 percent of the couples got married. Suggesting that couples were three times more likely to get married than to enter into one of these other quasi-marital options.…

Q. Are you aware of research regarding the impact of [p. 578] marriage, if any, on health?

A. There is a very large body of research on the impact for heterosexuals of marriage on health. These are studies that have compared the health of married individuals to the health of other adults who are not married. 

And the very consistent findings from those research are that, on average, married individuals fare better. They are physically healthier. They tend to live longer. They engage in fewer risky behaviors. They look better on measures of psychological well-being.

Q. Now, are you aware of any recent studies, of particular note, that document the health benefits associated with marriage?

A. Yes. One of the recent studies on that is a government study conducted by researchers at the Centers for Disease Control. 

And what they did was to interview a representative sample of Americans, a very large sample, more than a hundred-thousand people, and to do these comparisons between married individuals and other individuals on a range of questions about health. 

And what they found was that if you control for age and for income and education, for few things like that, for race, that across all of these groups, the married individuals did better on virtually every measure.…

[p. 597] Q. Dr. Peplau, is Exhibit 959 the study that you’re referring to, that you looked at about results, where couples have been permitted to marry, same-sex couples have been permitted to marry? 

A. What I was referring to before were government statistics about rates of marriage and divorce. 

[p. 598] One of the other things that I would predict would be that if we surveyed individuals who have gotten married in civil same-sex marriages in Massachusetts, that they would report benefiting from that. 

This is a collected 

And there is one study that addresses that issue. study by Ramos and others. They used data that was by the Massachusetts Department of Health.

The Department of Health was very interested in trying to understand what some of the impact might have been of marriage for same-sex couples in their state. 

And so, I believe, four years after marriage was permitted, they conducted a survey. It was not a representative sample, but it was a sample that included over 500 lesbians and gay men who had been married in Massachusetts. 

And the survey asked those individuals questions about why they had gotten married; whether they thought that marriage had improved their lives in a variety of ways. And for those individuals who were raising children, they also asked people’s beliefs about how the marriage had affected the children.

Q. And what did that study show as to the effects of access to marriage on same-sex couples?

A. One of the things the researchers found, I think, is not at all surprising. And that is that after they got married, many of the couples said they felt more committed to each [p. 599] other. I think heterosexual newlyweds might well say the same thing. 

But there were other things that the couples said that I think are particularly noteworthy. Many of the married lesbians and gay men said that they — they believed that their families were now more approving of their relationship. 

Many of them said that they felt less worried about legal problems. 

And a third of them said that either they or their spouse now had access to health benefits from an employer, that they had not had before getting married. 

And so they were reporting a number of benefits. 

And for those couples who had children — and, as I think I mentioned, that was about 25 percent of the respondents in this survey — they overwhelmingly reported that marriage had been beneficial to the children. 

95 percent of them said that they thought the children had benefited from the fact that they were now married.…

[p. 601]  There is nothing, that I am aware of, in the way of data or theory, that would suggest that same-sex civil marriage will lead fewer heterosexuals to marriage.…

Day 4, January 14, 2010


Day 5, January 15, 2010


[p. 1009] Q. Dr. Lamb, are you going to offer any opinions in this case?

A. I am, yes.

Q. What are they?

A. I’m going to offer two broad opinions. The first is that we have a substantial body of evidence documenting that children raised by gay and lesbian parents are just as likely [p. 1010] to be well adjusted as children raised by heterosexual parents. And I’m going to offer the opinion that for a significant number of these children, their adjustment would be promoted were their parents able to get married.…

[p. 1014] Q. Dr. Lamb, did you hold the view that children need a family structure with a male parent to adjust well?

A. You know, when I began my career in the early 1970’s, that was widely believed to be true. And so when I began my research, it was with the presumption or prediction that this was likely to be the case. 

My first research was concerned with exploring the attachments that young babies form to their mothers and fathers. And I explored in that early research the differences and the ways in which is mothers and fathers behaved and asked whether those differences, in fact, were important, whether they did show that children needed to be raised by a masculine as well as by a feminine parent. 

The results of both my research and, more significantly, the larger body of research that developed since the early 1970’s has made clear that that initial prediction was incorrect. 

And we have now as a field come to the conclusion [p. 1015] that I stated earlier; that what makes for an effective parent is the same whether or not you are talking about a mother or a father, and that children do not need to have a masculine-behaving parent figure, a father, in order to be well adjusted.…

[p. 1024] Q. So, Dr. Lamb, based on all of those studies we just [p. 1025] admitted into evidence, what conclusions have you drawn with respect to the impact of gay or lesbian parenting on children’s and adolescent’s adjustment?

A. Well, I think those articles are representative of a much larger body of research focused on this question documenting very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents. 

That’s a conclusion that has been documented in studies using, as I said, a variety of methods, a variety of ways of obtaining samples, asking different sorts of questions about various aspects of adjustment involving children and adolescents of different ages.…

Day 6, January 19, 2010


[p. 1339] Q. Let me ask you to look next at demonstrative 13. (Document displayed) 

Q. And could you explain what this means?

A. Yes. This is from a study I did a year or so ago where we gathered data from across the United States from different states that allow same-sex couples to either marry or have civil unions or domestic partnerships, and we looked at the rate of take-up, is what we call it, a take-up rate for those different legal statuses. 

We compared the numbers of couples marrying in Massachusetts to the number of same-sex couples in Massachusetts over just that first year, to take into account the fact that these statuses have been available for different periods of time. 

And so what you see here is that 37 percent of same-sex couples in Massachusetts got married in the first year that they were allowed to do so. 

When we look at the states that allow civil unions, only 12 percent of same-sex couples chose to enter a civil union in that first year.…

[p. 1346] Q. The last statement here says that: 

“93 percent of the respondents that were raising children in their homes agreed or somewhat agreed that their children were happier and better off as a result of their marriage.” 

Do you see that? 

A. Yes.

Q. And can you explain the significance of that?

A. Yes. Twenty-eight percent of the people who answered this [p. 1347] survey had children that they were raising in their homes, and almost all of them agreed that — that their children were better off, in the opinion of the parents.…

[p. 1361] Q. Did you see any evidence of any adverse impacts in Massachusetts of permitting same-sex marriage on heterosexual marriage or the institution of marriage?

A. No, I saw no such adverse effects. 

Q. Did you see any evidence of adverse effects in Massachusetts of permitting same-sex marriages on children, either children being raised by same-sex couples or children being raised by different-sex couples?

A. No. I see no evidence of any such adverse effects.

Q. What does the Massachusetts experience lead you to conclude about whether there would be adverse effects of permitting same-sex couples to marry in California? 

[p. 1362] A. I believe that the same effect would occur here in California; that is, that there would be no adverse effect on different-sex couples or on the institution of marriage here in California.…

[p. 1466] Q. Let me make sure I understand what you are saying. 

First, you are saying that after same-sex marriages were permitted in Massachusetts, the annual divorce rates declined, correct?

A. Yes, yes. That’s right.

Q. And you are saying that during that same period of time, annual divorce rates declined in the United States as a whole, but not by as much; is that correct?

A. That’s right.…

Day 7, January 20, 2010


[p. 1537] One of the chief critics of pluralism, E.E. Schattschneider, has a very famous quote. And the quote is [p. 1538] that, “The flaw in the pluralist heaven is that the heavenly chorus sings with a decidedly upper-class accent.”…

[p. 1543]  In fact, between 1990 and the middle part of the 2000s, there’s been probably like 150 — not even counting the same-sex marriage votes, there’s been like 150 votes on gay and lesbian — usually, on gay and lesbian antidiscrimination protections. And they lose about 70 percent of the time.…

[p. 1552] There is no group in American society who has been targeted by ballot initiatives more than gays and lesbians. The number of ballot initiative contests since the first one in the late 1970’s is probably at or above 200. Gays and lesbians lose 70 percent of the contests over other matters. They have essentially lost a hundred percent of the contests over same-sex marriage and now on adoption.…

[p. 1611] Q. And who do you understand Ron Prentice to be?

A. The chairman of ProtectMarriage.com, or the head.

Q. What about — what was it about this document, what portion of this document did you find shed light on the opinions that you formed, that you’re giving in this case?

A. On the second page, the paragraph about a third of the way down the page that begins with “the total.”

Q. Could you read that for the record.

A. (As read) [p. 1612] 

“The total projected cost for the qualification effort has been set at 1.5 million. Thus far, 1.25 million has been raised and spent. The monies have come from four primary sources thus far: The Catholic community of San Diego, due to the involvement of Auxillary Bishop Cordileone, Fieldstead & Company, who pledged 50 cents for each dollar raised in January for the effort, Focus on the Family, and small gifts from direct mail efforts by ProtectMarriage.com.”…

[p. 1625] Mr. Boutrous, Attorney for Plaintiffs: The fact that religious organizations participate in the political debate is a perfectly fine thing.

But once they do, and they’re public, there’s no support for the notion that we suddenly keep people’s names secret even though they are associated publicly.…

[p. 1627] Q. Professor Segura, if you could finish reading that paragraph, and then we can — we can move on to your opinions regarding this document as it relates to political power.

A. Okay. (As read) 

“He [Gary Lawrence] has also been hired by the coalition to do polling work for Prop 8. The main California grass roots leaders are in the process of being called as, quote, area directors, end quote, with the responsibility for areas that generally correspond to each of the 17 LDS coordinating councils for the LDS mission boundaries. Thereafter, priesthood leaders will call local prop coordinators over each stake and leaders by zip code within each ward – potentially working not only with LDS, but also LDS volunteers.”…

[p. 1634] Q. Professor Segura, give me your impression as to what this document, this portion of the document, relating to Legislative Update, is doing in terms of this memorandum.

A. As I read it, Mr. [Mark] Jansson is reiterating the strategy that’s to be employed, with how church leaders and church members should present themselves with respect to the Prop 8 campaign.

Q. And in what — what is it about this document that leads you to that conclusion?

A. Particularly, the first two sentences of the second paragraph. Quote: 

“Brother Jannson emphasized that we are not to take the lead on this proposition but to join in coalition with ProtectMarriage.com. Salt Lake City conducted a teleconference with 159 of 161 Stake presidents in the State of California, and told the presidents LDS are involved in this issue but are not to take the lead; teach youth and young adults [p. 1635] the doctrine of marriage by using the” — I assume that’s “letter read in sacrament meetings, and LDS are encouraged to contribute the fund-raising $30 suggested donation. Brother Jannson announced that 5 million is the projected goal in addition to general fund-raising. Donations are best provided to ProtectMarriage.com.”…

Q. And then how about the last sentence? 

A. (As read) 

“Director [Dennis] Holland highlighted the luxury of having Mark Jannson on key committees, and that he will receive direct communications,” I assume, “from him.” 

[p. 1636] Q. As a political scientist, what is it about this document and these statements that is relevant to analyzing the balance of political power between gay men and lesbians and religious organizations to the extent they’re involved in political activities in California? 

A. Well, with respect to the Proposition 8 campaign, it makes it clear that there was a sort of two-way flow of information, where strategic talking points were being provided to religious leaders by the campaign. And, in turn, the religious leaders were providing volunteers to the campaign. 

But there was this cautious strategic not-to-take-the-lead notion so as to provide a — I don’t know, plausible deniability or respectable distance between the church organization per se and the actual campaign.…

[p. 1637] Q. Have you ever, in your studies, in your review of the literature, and your analysis of political activity in the United States, ever seen this kind of structure constructed and deployed in an effort to eliminate a fundamental state constitutional right of a community group? 

A. This is new in my experience.…

[p. 1638] [Mr. Boutros, Attorney for the Plaintiffs, addressing the Court] MR. BOUTROUS: And, Your Honor, the foundation — there is no question this is an authentic document. It was sent to the — you know, the entire — basically, the entire executive committee, Mr. Dolejsi, Mr. Pugno himself, Mr. Jansson, Mr. Schubert, who is the political consultant, Jeff Flint, another political consultant. And it — it — and they are all copied on it. 

And the reason that it’s relevant, without disclosing the full contents, is that it really shows the degree of connection between ProtectMarriage.com and the organization that sent this document, in terms of the funding. 

And the ProtectMarriage.com in this court before Your Honor, and in the depositions, and in other context, have taken the position that these other organizations were not really [p. 1639] that connected to ProtectMarriage.com and the official campaign. 

This document goes directly to that. And, as relevant to Professor Segura’s testimony, demonstrates this significant, broad coalition that was connected by not only the same views about Proposition 8, but by an incredible fund-raising mechanism and relationships.…

[p. 1642] Q. Professor Segura, briefly, what is it about this document that reflects on political power, in your view?

A. Going to the heart of the matter, the last sentence of the first paragraph reads, quote: 

“You may know that the Mormons have been out walking neighborhoods the past two Saturdays, with about 20,000 total volunteers.” 

Q. And why is that important in evaluating the political power in this context?

A. Again, I — I would suggest that any political consultant would be thrilled to have 20,000 precinct walkers on any given Saturday. 

So I think it speaks to the — the breadth and size of the opposition to gay and lesbian interests.…

Day 8, January 21, 2010


[p. 1862] MR. BOUTROUS: Your Honor, I move admission of Plaintiffs’ Exhibit 398. 

MR. THOMPSON: No objection, your Honor.
THE COURT: 398 is admitted.
(Plaintiffs’ Exhibit 398 received in evidence.) 

Q. Now, Professor Segura, I would like you to just briefly peruse this, but — actually, before I do that, let’s turn to [p. 1863] the — if we could display that? Let’s publish Plaintiffs’ Exhibit 398, and I would like to go to the last page. 

While we are doing that — which is page five of five of this document. 

(Document displayed) 

MR. BOUTROUS: And if you could enlarge the very last paragraph? 


Q. And, Professor Segura, perhaps you could read it into the record? Beginning in — actually, not the last — it’s the paragraph that begins “Members of the Mormon faith.”

A. (As read) 

“Members of the Mormon faith played an important part of the Yes On 8 coalition, but were only a part of our winning coalition. We had the support of virtually the entire faith community in California. Prop 8 didn’t win because of the Mormons. It won because we created superior advertising that defined the issues on our terms, because we built a diverse coalition, and most importantly, because we activated that coalition at the grassroots level in a way that had never been done before.”…

Day 9, January 22, 2010


[p. 2028] Q. Has homosexuality ever, in the past, been seen as a mental disorder? 

A. Yes.

Q. Okay. And can you describe the history of that?

A. Well, if we go back to the early part of the 20th century, we see that there was a great deal of discussion and debate. 

In 1952, the American Psychiatric Association created its first official roster of mental illnesses.  It was called the Diagnostic and Statistical Manual of Mental Disorders, or the DSM for short.

And homosexuality was included in that first edition of the DSM. Over time, that inclusion was disputed, and there were many challenges to it such that by 1973, just about 20 years later, the American Psychiatric Association removed homosexuality from its DSM. 

And shortly after that, the American Psychological Association went on record strongly supporting the decision by the Psychiatric Association.…

Day 12, January 27, 2010

[There were no entries for Days 10 and 11]


Q. Now, we’ve talked a lot about the institution of marriage.  You would agree that the institution of marriage is constantly evolving, correct?

A. Yes, sir.

Q. And always changing, correct?

A. I wrote those words in my book.

Q. And no single universally accepted definition of marriage, correct?

A. I wrote those words, too.…

Perry v. Schwarzenegger: Credibility Determinations, Findings of Fact, Conclusions of Law:

[p. 9]  At oral argument on proponents’ motion for summary judgment, the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest.  Doc #228 at 21.  Counsel replied that the inquiry was “not the legally relevant question,” id, but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know. I don’t know.”  Id at 23. 

          Despite this response, proponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships” would effect some twenty-three specific harmful consequences.  Doc #295 at 13-14.  At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage.  Blankenhorn’s testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate.…

[p. 11]  Plaintiffs presented eight lay witnesses, including the four plaintiffs, and nine expert witnesses.  Proponents’ evidentiary presentation was dwarfed by that of plaintiffs. Proponents presented two expert witnesses and conducted lengthy and thorough cross-examinations of plaintiffs’ expert witnesses but failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.…

[p. 13]  Historian Nancy Cott testified about the public institution of marriage and the state’s interest in recognizing and regulating marriages.  Tr 185:9-13.  She explained that marriage is “a couple’s choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life.”  Tr 201:9-14.  The state’s primary purpose in regulating marriage is to create stable households.  Tr 222:13- 17.…

[p. 15]  As explained in the credibility determinations, section I below, the court finds the testimony of Cott, Peplau and Badgett to support findings on the definition and purpose of civil marriage; the testimony of Blankenhorn is unreliable.  The trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex.…

[p. 16]  Psychologist Gregory Herek defined sexual orientation as “an enduring sexual, romantic, or intensely affectional attraction to men, to women, or to both men and women.  It’s also used to refer to an identity or a sense of self that is based on one’s enduring patterns of attraction.  And it’s also sometimes used to describe an enduring pattern of behavior.”  Tr 2025:5-11.  Herek explained that homosexuality is a normal expression of human sexuality; the vast majority of gays and lesbians have little or no choice in their sexual orientation; and therapeutic efforts to change an individual’s sexual orientation have not been shown to be effective and instead pose a risk of harm to the individual. Proponents did not present testimony to contradict Herek but instead questioned him on data showing that some individuals report fluidity in their sexual orientation.  Herek responded that the data proponents presented does nothing to contradict his conclusion that the vast majority of people are consistent in their sexual orientation.…

[p. 17]  Psychologist Michael Lamb testified that all available evidence shows that children raised by gay or lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents and that the gender of a parent is immaterial to whether an adult is a good parent.  When proponents challenged Lamb with studies purporting to show that married parents provide the ideal child-rearing environment, Lamb countered that studies on child-rearing typically compare married opposite-sex parents to single parents or step-families and have no bearing on families headed by same-sex couples.  Lamb testified that the relevant comparison is between families headed by same-sex couples and families headed by opposite-sex couples and that studies comparing these two family types show conclusively that having parents of different genders is irrelevant to child outcomes.…

[p. 24]  An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters.  When challenged, however, the voters’ determinations must find at least some support in evidence.  This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough.  Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view.  The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval.  As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.…

[p. 37]  Nathanson has a PhD in religious studies from McGill University and is a researcher at McGill’s Faculty for Religious Studies.  PX2334 Nathanson CV.  Nathanson is also a frequent lecturer on consequences of marriage for same-sex couples and on gender and parenting.  Id.  Nathanson testified at his deposition that religion lies at the heart of the hostility and violence directed at gays and lesbians and that there is no evidence that children raised by same-sex couples fare worse than children raised by opposite-sex couples.…

[p. 37]  Proponents called two witnesses: 1. David Blankenhorn, founder and president of the Institute for American Values, testified on marriage, fatherhood and family structure.  Plaintiffs objected to Blankenhorn’s qualification as an expert.  For the reasons explained hereafter, Blankenhorn lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents’ factual assertions.…

[p. 39]  The court permitted Blankenhorn to testify but reserved the question of the appropriate weight to give to Blankenhorn’s opinions.  Tr 2741:24-2742:3.  The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight.…

[p. 48]  Blankenhorn was unwilling to answer many questions directly on cross-examination and was defensive in his answers. Moreover, much of his testimony contradicted his opinions. Blankenhorn testified on cross-examination that studies show children of adoptive parents do as well or better than children of biological parents.  Tr 2794:12-2795:5.  Blankenhorn agreed that children raised by same-sex couples would benefit if their parents were permitted to marry.  Tr 2803:6-15.  Blankenhorn also testified he wrote and agrees with the statement “I believe that today the principle of equal human dignity must apply to gay and lesbian persons.  In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted same- sex marriage than we were the day before.”  DIX0956 at 2; Tr 2805:6-2806:1.…

[p. 49]  Blankenhorn’s opinions are not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony.  The court therefore finds the opinions of Blankenhorn to be unreliable and entitled to essentially no weight.…

[pp. 49-50]  Proponents called Kenneth P Miller, a professor of government at Claremont McKenna College, as an expert in American and California politics.… Having considered Miller’s background, experience and testimony, the court concludes that, while Miller has significant experience with politics generally, he is not sufficiently familiar with gay and lesbian politics specifically to offer opinions on gay and lesbian political power.…

[p. 54]  For the foregoing reasons, the court finds that Miller’s opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence.…

[Findings of Fact]

[p. 60]  19. Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage.  Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.…

[p. 66]  33.  Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality. 

a.    PX0707 at RFA No 13: Proponents admit that eliminating the doctrine of coverture has not deprived marriage of its vitality and importance as a social institution; 

      b.    PX0710 at RFA No 13: Attorney General admits that gender-based reforms in civil marriage law have not           deprived marriage of its vitality and importance as a           social institution; 

      c.    Tr 245:9-247:3 (Cott: “[T]he primacy of the husband as  the legal and economic representative of the couple, and the protector and provider for his wife, was seen as absolutely essential to what marriage was” in the nineteenth century.  Gender restrictions were slowly removed from marriage, but “because there were such alarms about it and such resistance to change in this what had been seen as quite an essential characteristic of marriage, it took a very very long time before this trajectory of the removal of the state from prescribing these rigid spousal roles was complete.”  The removal of gender inequality in marriage is now complete “to no [p. 67] apparent damage to the institution.  And, in fact, I think to the benefit of the institution.”); 

      d.    PX0707 at RFA No 13: Proponents admit that eliminating racial restrictions on marriage has not deprived marriage of its vitality and importance as a social institution; 

      e.    PX0710 at RFA No 13: Attorney General admits that race-based reforms in civil marriage law have not deprived marriage of its vitality and importance as a social institution; 

      f.    Tr 237:9-239:24 (Cott: When racial restrictions on marriage across color lines were abolished, there was alarm and many people worried that the institution of marriage would be degraded and devalued.  But “there has been no evidence that the institution of marriage has become less popular because * * * people can marry whoever they want.”).…

34.  Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.  Tr 187:11-16; 188:16-189:2; 201:9-14 (Cott).…

35.  The state has many purposes in licensing and fostering marriage.  Some of the state’s purposes benefit the persons married while some benefit the state: 

a.    Facilitating governance and public order by organizing individuals into cohesive family units.  Tr 222:13-17 (Cott: “[T]he purpose of the state in licensing and incentivizing marriage is to create stable households in which the adults who reside there and are committed to one another by their own consents will support one another as well as their dependents.”); 

b.    Developing a realm of liberty, intimacy and free decision-making by spouses, Tr 189:7-15 (Cott: “[T]he realm created by marriage, that private realm has been  repeatedly reiterated as a —— as a realm of liberty for  intimacy and free decision making by the parties[.]”); 

c.    Creating stable households.  Tr 226:8-15 (Cott: The government’s aim is “to create stable and enduring unions between couples.); 

[p. 68] d. Legitimating children.  Tr 225:16-227:4 (C0tt: Historically, legitimating children was a very important function of marriage, especially among propertied families.  Today, legitimation is less important, although unmarried couples’ children still have to show “that they deserve these inheritance rights and other benefits of their parents.”); 

e.    Assigning individuals to care for one another and thus limiting the public’s liability to care for the vulnerable. Tr 226:8-227:4 (Cott: Marriage gives private actors responsibility over dependents.); Tr 222:18-20 (“The institution of marriage has always been at least as much about supporting adults as it has been about supporting minors.”); 

f.    Facilitating property ownership.  Tr 188:20-22 (Marriage is “the foundation of the private realm of * * * property transmission.”).…

[p. 74]  46.  Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.…

[p. 77]  48.  Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.  Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners.  Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.…

[p. 79]  50. Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.…

[p. 83]  55.  Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages. 

a.    Tr 596:13-597:3 (Peplau: Data from Massachusetts on the “annual rates for marriage and for divorce” for “the four years prior to same-sex marriage being legal and the four years after” show “that the rates of marriage and divorce are no different after [same-sex] marriage was permitted than they were before.”); 

b.    Tr 605:18-25 (Peplau: Massachusetts data are “very consistent” with the argument that permitting same-sex [p. 84] couples to marry will not have an adverse effect on the institution of marriage.); 

c.   Tr 600:12-602:15 (Peplau: Allowing same-sex couples to  marry will have “no impact” on the stability of marriage.);

d. PX1145 Matthew D Bramlett and William D Mosher, First Marriage Dissolution, Divorce, and Remarriage: United States, US Department of Health and Human Services at 2 (May 31, 2001): Race, employment status, education, age at marriage and other similar factors affect rates of marriage and divorce; 

e. PX1195 Matthew D Bramlett and William D Mosher, Cohabitation, Marriage, Divorce, and Remarriage in the United States, Vital and Health Statistics 23:22, US Department of Health and Human Services at 12 (July 2002): Race and socioeconomic status, among other factors, are correlated with rates of marital stability; 

f. PX0754 American Anthropological Association, Statement on Marriage and the Family: The viability of civilization or social order does not depend upon marriage as an exclusively heterosexual institution.…

[p. 95]  70.  The gender of a child’s parent is not a factor in a child’s adjustment.  The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted.  The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.…

[p. 95]  71.  Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.  Tr 1014:25-1015:19; 1038:23-1040:17 (Lamb).…

[p. 101]  77.  Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.…

Conclusions of Law

[p. 109]  Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.  Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.…

[p. 113]  The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage.  The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry.  FF 21.  Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage.  That time has passed. 

          The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household.  FF 19-20, 34-35.  Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.  FF 33.  Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents.  Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.  FF 48.  Gender no longer forms an essential part of marriage; marriage under law is a union of equals.…

[p. 114]  Plaintiffs do not seek recognition of a new right.  To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage.  Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.…

[p. 116]  Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. Zablocki, 434 US at 388.  That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.”  West Virginia State Board of Education v Barnette, 319 [p. 117] US 624, 638 (1943).  Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest.…

[p. 117]  The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest.  Proposition 8 cannot, therefore, withstand strict scrutiny.…

[p. 123]  Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.…

[p. 133]  The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: [p. 134] a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. 

[p. 135] Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.  The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.  FF 76, 79-80; Romer, 517 US at 634 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”).  Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment. 


Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite- sex couples are superior to same-sex couples.  Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

(In the United States District Court for the Northern District of California, No. C 09-2292 VRW.  Walker ruled on August 4, 2010)

Perry v. Hollingsworth, Supreme Court decision

“We have never before upheld the standing of a private party to defend the constitutionalty of a state statute when state officials have chosen not to.  We decline to do so for the first time here.

Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal.  The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.”

(In the Supreme Court of the United States, No. 12-144, March 26, 2013)


[137] “Amid these political developments, a gay marriage lawsuit was filed in federal court for the first time in two decades. Brought in May 2009 in the Northern District of California, Perry v. Schwarzenegger refocused national attention on San Francisco.…

[139] Perhaps even worse than losing in federal court, other commentators warned, would be winning, which might ignite a severe political backlash in those parts of the country where public opinion still strongly opposed to gay marriage.”

(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))


Prince: Where is the Church going to be on the Prop 8 court case?  Are we just going to let it move through the courts and stay on the sidelines?

Evans: We’re not really on the sidelines.  We continue to be a participant with the Prop 8 coalition that is the defendant.  We have a church presence on that coalition, so we are not on the sidelines.

(William Evans, February 8, 2012)

Evans: You remember when Chuck Cooper was asked, “What is the problem with having gay marriage?” he couldn’t answer the question.  And he was the lead counsel.  You are probably also aware that in recent weeks it has come out that he has a gay daughter.  So I’m guessing that his heart was not in the case.  I was in a meeting very early on, in California, when he first met with the Protect Marriage executive committee.  He is smooth and he is good.  He knows Ted Olsen and over the years he had done a lot of socializing with Olsen.  He said, when Olsen came out on the plaintiffs’ side, “I was flummoxed.”  

So you have Chuck Cooper, in retrospect, whose heart it appears was never really in it the way Ted Olsen’s was and is; and then you get David Blankenhorn of the Institute for American Values, who was one of their expert witnesses, who subsequently has come out in favor of gay marriage.  What’s left, Greg?

(William Evans, June 7, 2014)

Prince: I remember talking to you about the Walker trial, and as I recall you had some reservations about this thing moving too quickly up to the Supreme Court.

Jacobs: Yes, a little bit.

Prince: Maybe the country wasn’t quite ready to move that fast.

Jacobs: A little bit.  But Courage and I were the only ones supporting the Prop 8 trial from its inception.  I had known about it, but once it was public, we were there, literally.  We were in the courtroom everyday, we were at the press conference announcing it, we supported it when other organizations were unhappy with it because of what you just said.  I live blogged it.  It was quite a controversial thing because a lot of people thought that not only the country wasn’t ready, but that this would set the movement back.  I was not somebody who thought it would set us back.  Ever.  I wasn’t sure we would win, but I was never somebody who thought it would set us back.  I believed, and still believe, that sometimes you just have to throw the apples up in the air and see where they land, instead of just moving them around on a table.  Up until Prop 8, that’s exactly what had been happening.  People had been moving things a little bit here and a little bit there.  I’m not blaming anybody.  It makes sense.  And again, if you go back to 2004, there was no organized opposition to those ballot measures.  None.  In 2008, it all changed.

(Richard Jacobs, January 19, 2014)

Jansson: Now, within days of that a very cautious filing was made in San Francisco at the Federal Court.  We were notified within a week that a lawsuit had been filed against Prop 8, a federal lawsuit predicated on the Fourteenth Amendment.  We were not surprised, but we also recognized that one of the major events of the post-campaign was that we would have to fund a Prop 8 defense fund.  That included the fight with the Secretary of State and the California Supreme Court, which we would ultimately win, and now a federal lawsuit.

We always found it fascinating that that lawsuit was filed the way it was.  Mind you, the court is very adamant that the selection of a judge for any particular lawsuit that is filed is random.  How random can you get with Vaughn J. Walker, who is gay, and who refused to recuse himself?  There are so many pieces of how this played out that have the fingerprints of the Adversary.

Greg, our lead counsel was Chuck Cooper.  Did you and Bill talk about that lawsuit at all?

Prince: No.

Jansson: OK.  The lead counsel that we selected to testify before the State of California was a gentleman of some notoriety within the legal profession.  His name was Ken Starr.  I had the distinct privilege of driving to Los Angeles, and I met Andy and Ron there and we met with Judge Starr at Pepperdine University.  I’m just a layman, an ordinary street guy, and here I am hanging out with Kenneth Starr.  There was an effort made to try to solicit his participation in the federal trial, but his wife became ill, and that never matured.  Chuck Cooper, who is an exceptional man of many talents, one who had his own challenges with a lesbian daughter, is one of the finest men I have ever met.  He is an incredibly astute and capable man.  If there ever a regret that I would ever pose, it was that there was a cloud over our relationship with him as a result of a press that was made by the committee to try to get Ken Starr to handle the case.  This can’t go on the record.  Chuck ended up being second choice.  I guess that’s one way to look at it.  That’s a reality.  I’d love to change it, but that’s not the case.  But Chuck never let that bother him.  He committed himself to our defense in a marvelous way and wrote some of the more-than-classic pieces that were submitted to the court in defense of Prop 8.  They are incredibly well written and incredibly rational, incredibly justifiable in any court where a fair hearing could be expected.

Justice Walker was not about to let that happen.  He compressed the amount of time that he allowed us.  The lawsuit was filed in federal court in September of 2009, and he set a court date for trial in January 2010.  Between depositions and all that stuff, he played an absolutely unfair game with us.  We got the distinct impression—and here is another thing you can’t print—that there was collusion between him and the other side.  No one would ever admit to that, but when you take a look at the evidence of what took place and how it took place, the distinct impression I got was that the game was not fair, and was rigged from the onset.  Again, that’s something that I just can’t ever go public with.

(Mark Jansson, November 16, 2015)

Jacobs: Have you followed this federal Prop 8 trial that Ted Olson and David Boies are involved in?

Prince: I have followed it a little bit, but I’m not up-to-date on it.

Jacobs: When Olson and Boies announced their involvement in the suit, people thought two things.  One was that Olson was doing this as a devious plot, and the other was that people thought this lawsuit was too soon.

Prince: Too soon in what sense?

Jacobs: They were saying that if it got to the Supreme Court too soon, we would lose.  There is a theory that has been set forth that we have to win elections in ten states, in the legislatures in ten states and in courts in ten states on the issue of marriage equality before we go to the Supreme Court.

Prince: Because then the Supreme Court senses a shifting of the tide?

Jacobs: Yes.  And let’s face it, if you’ve got 30 or 40 years it’s a great idea.  I have another view of this, which is that I don’t understand why any minority wants to subject itself to having its rights voted on by a majority.  That usually doesn’t work out well for the minority.

Prince: That’s where the courts are supposed to protect the minority.

Jacobs: That’s right.  Exactly.  I ended up live-blogging this trial, which started in January and went for 12 days.  The federal judge in San Francisco had wanted the trial to be put up on YouTube.  But the other side appealed the ruling to the Supreme Court, and it was denied.  So I was sitting there typing on the first Monday morning of the trial.  By noon we had 40,000 hits on a website that we hadn’t advertised or publicized.  By the end of that phase of the trial we had 2,000,000 hits and over 30,000 comments.  It was, for me, a personal transformative experience.  I didn’t come out until I was 33, and a lot of the experiences that I had as a young person and a young man that really warped my life came out in that trial.  There was a book in the ‘60s called Everything You Ever Wanted to Know About Sex But Were Afraid to Ask.  My parents had a copy, and I would sneak it out of their bedroom and read it.  I remember reading the part about homosexuals.  What it said, essentially, was you can’t be happy, and you’ll have a horrible life.  I thought, “Oh, my goodness!  That’s terrible.”  I never talked about it with anybody.

Then, in the trial in January, they brought up all these wonderful witnesses; amazing witnesses!  One of the witnesses read this passage from the book.  It was in a question-and-answer format.  The question was, “What about happy homosexual couples?”  Answer: “Rare, indeed, is the homosexual bird that can be happy.”  It goes on and says that if you think a man and wife can have fights, you’ve never seen anything until you see “a butch and his queen.”  This is what I remember from being 10 or 11 years old, that you can’t be happy.

Now, this was Ted Olson, Bush the 2nd’s Solicitor General.  The opposition had two witnesses.  Our side had about 20.  By the time the trial began they had only two witnesses, because the other ones had been destroyed in depositions.  Their two witnesses—one is a Harvard law graduate who teaches at Claremont or somewhere, and the other was David Blankenhorn—acknowledged that homosexuals would be better off married, and that the children of gay and lesbian couples would be better off if their parents were married.  Their witnesses said that!

All this stuff came out, and it included letters from the Mormon Church, emails, that acknowledged, in the official record, that the Mormon Church was involved in the management and operation—those words—of the campaign.  The whole thing about the archbishop in San Diego was exactly as you said, although that particular connection is apparent but not proven in the record.

Prince: You probably won’t find a paper trail, because it was probably just a phone conversation.

Jacobs: Probably won’t.  But it is very clear that there is a paper trail that in the past—and they used the stuff from Hawaii—they decided that the Mormon Church should not be involved publicly in the anti-marriage thing, and they should hide behind the Catholics, basically.  By the way, the final arguments of the trial will be this Wednesday.  The judge can rule anything he wants, but this will get it on the highway to the Supreme Court.

Prince: Either side will appeal the ruling.

Jacobs: Yes.  I would rather have Ted Olson than anyone else in anything having to do with the law.  He has had 56 cases before the Supreme Court, and he has won 75% of them.  He just won one that I hate, with Citizens United.  While we were in San Francisco in January, I emailed him and said, “Congratulations, but you’re wrong.”  But here is the thing about this guy that I love: he has integrity.  I don’t have to agree with him; that is not necessary for me to respect him.  He and Boies think we are going to get a good ruling out of this trial.

Prince: And then it goes to the 9th Circuit?

Jacobs: Yes, and the 9th, as you know, is a crapshoot.

My organization [www.couragecampaign.org] has launched a campaign called “Testimony: Equality on Trial.”  It started about three weeks ago.  There are three components.  The first component is that what happened inside that courtroom—win, lose or draw—is transformative, and people need to hear and see it.  It is the equivalent of Brown v. Board of Education.  The testimony from the trial is so significant, because every argument that the other side came up with was destroyed.  It all came back to this, the only argument that they have: marriage is a valuable institution, and the institution is not about same-sex couples being married.  Therefore, they can’t be married.  It’s a tautology, and that’s all they have.  They have nothing else.

Last week the judge issued 29 questions that are to be addressed in the closing arguments.  Read the questions.  They are unbelievable.  It is so amazing that those questions are being asked in court, and that it’s not 30- and 60-second advertisements that people can hide behind, is revolutionary.

So the first phase we are doing is called “Equality on Trial,” and we are trying to get people to do reenactments of pieces of it.  The second phase, which we will launch probably at the end of July, is a long-term project that is called “The Testimony Project.”  What we want people to do is to give their own testimony, which was not given in court.  Imagine if you and others, straight and gay, could give your testimonies of what marriage is to them.  That will last a year or two.

Prince: And it’s not a civil rights issue.  It is deeper.  It is a justice issue.

Jacobs: You are absolutely right.  And then the third phase of this, we hope, is that we want to organize people in every congressional district—as my friend Cleve Jones says, “We don’t want people to show up at candidate debates and overturn the hors d’oeuvres”—to show up and ask the question, “Do you believe in the 14th Amendment?”  We want to show that in Montana, in Utah, wherever, there are people who care about this issue.  Our main goal is to get this out of the gay community, to get it out of the ghetto.  It doesn’t have to be your big issue, but if you do that for three minutes, that’s how this can work.

We had a conference call last week, and Ted Olson said that the most important thing that can be done between now and the time the Supreme Court hears this is to make sure that what happened in that trial is public, and that people are talking and talking and talking about it.  Last weekend there was a Gallup Poll that came out, and it showed that for the first time since Gallup has been polling on the issue, a majority of Americans polled said that same-sex relationships were OK.

Prince: And that has been a steady increase.

Jacobs: Yes.  And I think 43% said that same-sex marriage is OK, which has also been a steady increase.  If we can get this going properly, we can even poll.

(Richard Jacobs, June 12, 2010)