Ted Olson and David Boies laid out their closing argument strategies for the Prop 8 Trial this morning, but one of the more intriguing aspects of the hour-long conference call was whether proponents of California’s ban on same-sex marriage really didn’t wage much of a fight in the first place, or are even “boycotting” the proceedings.
Boies said, “Boycotting a trial almost never a winning strategy. …They tried to come up with the evidence, they knew they were required to come up with evidence. They tried to build that trial record and they simply failed. They didn’t fail because they’re bad lawyers, they failed because there isn’t any evidentiary support to the argument they’re advocating.”
Prop 8 proponents are asking that portions of evidence be stricken from the record on First Amendment grounds, arguing that material introduced at the trial should have been privileged communication. Included in the motions to strike are portions of William Tam’s testimony. Tam, who worked on the Yes on 8 campaign, was called by plaintiff’s to testify as a way of showing animus was behind the initiative. (Among other things, Tam compared same-sex marriage to pedophilia.) Prop 8 proponents, however, tried to distance Tam from the core group of supporters who directed the campaign.
Olson said, “Trials are pursuits of justice. That is how we resolve things in this country, particularly when there’s a constitutional matter. So for the proponents of Prop 8 who convinced millions of Californians, to take away rights of portion of Californians. To say, “We don’t want to defend what we did in trial of independent American judiciary” is audacious. I guess that is the best thing I can say about it.”
It will be interesting to see what the fallout from the trial is if Judge Vaughn Walker rules to strike down Prop 8 and whether a strategy of the initiative’s supporters will be to point out whether the system is stacked against them. Charles Cooper, attorney for the proponents of 8, hasn’t said as such, but other supporters have made little secret of it. Perhaps it is a way of saying that they believe that the “will of the people” arguments, that voters passed Prop 8 in an uncontested election, will be strong enough on appeal than investing time and energy in laying out a record of evidence.
Olson and Boies signaled that their close will focus to come degree on what defenders of Prop 8 admitted on the stand — including the harm that come to children in same-sex families when their parents are denied the right to marry. And several times, they mentioned that they would point out that it was never proven that same-sex marriage has a detrimental effect on heterosexual marriage.
“Our opponents provided witnessess that turned out to be more help for us than they did from them,” Olson said.