Prop 8 Trial: This Time It’s Personal

San Francisco

Undoubtedly, the emotional peak of the opening day of the Proposition 8 trial was when the four plaintiffs in the case got a chance to tell their stories of struggle, of lives lived with slurs and suggestive threats and ultimately of the stigma of not having access to marriage.

Up to now, the couples, Jeff Zarrillo and Paul Katami, and Sandy Stier and Kris Perry, each denied marriage licenses after Prop 8 was passed, have been overshadowed by the weighty issues at hand. They were proof that as much as constitutional factors and many other societal impacts are being weighed, the personal story is the powerful story — something not entirely surprising when you consider the case’s Hollywood roots. As one expert witness, a Harvard historian, testified late in the day, marriage is “the happy ending in all our tales.”

Choking up at times, Zarrillo, general manager of operations at AMC Entertainment, told the court that Prop 8 was a “daily reminder of what we can’t have,” and cited examples of the awkwardness involved in checking into a hotel, or trying to get a joint bank account, and having to explain just who Katami, his “partner,” is. He took the stand after giving Katami a kiss, and with a slight accent from his native New Jersey breaking through, he told the court, “Domestic partnership would relegate me to a level of second class citizenship, maybe third class citizenship. That is not enough.”

Katami, the manager of group fitness at Equinox, told of being shouted at by a woman driving a car with a Yes on 8 bumper sticker, who told him, “Marriage is not for you people, anyway.” He also was asked to provide his thoughts upon seeing several commercials for the Prop 8 campaign that were played in the courtroom, including one that declared “Protect Our Children. Restore Marriage,” and another that declared “Stand Up for Righteousness.” (David Boies, who questioned him, sought to also run the much seen — and much mocked — “Gathering Storm” spot but it was declared irrelevant because it ran after Prop 8 passed).

“I’d be lying if I didn’t say my heart was racing and I was angry watching” the commercial, Katami said.

But do their expressions of love and frustration have legal relevance?

Boies and Ted Olson, the star attorneys who are lead counsels in the case, argue that it sure does, and they are determined to show that Prop 8 and its backers pursued the initiative with discriminatory intent. It’s also one of the reasons they are so supportive of the idea of some sort of TV coverage of the proceedings, a prospect that will come before the U.S. Supreme Court on Wednesday. “We hope this tape (of opening day) will get in more people’s homes and will educate a lot of people,” Boies said at a press conference later on Monday.

The other side, represented by lead counsel Charles Cooper, say that as touching as some may have found the plaintiffs’ testimony, it isn’t a basis for altering the traditional definition of marriage. Andrew Pugno, the lead counsel for Protectmarriage.com, the group that led the fight for Prop 8, said at a press conference after the day’s session that “invalidating Proposition 8 is not going to eliminate puzzled looks.”

“When it comes to social validation, that is something they have to address to society. That is something that is earned,” he said. They didn’t cross examine three of the plaintiffs, as if to signal that it isn’t in their interest to dig deeper into their stories. Instead, much of Cooper’s opening remarks centered on the traditional definition of marriage as between a man and a woman, and how same-sex marriage is really a social experiment, the full impact of which is unknown at best. “It simply can’t stand up to the evidence of the ages,” Cooper said.

So many different issues were raised on opening day — child rearing, education, even the state’s budget — that it was hard to believe that it will all be covered in the span of two to three weeks, the expected length of the trial.

With every spaced filled in the courtroom, and the field of attorneys (perhaps two dozen in all) clear nervous) beforehand, the tone of the trial quickly went from an august, even uptight proceeding, to something more relaxed.

Walker, with a salt and pepper goatee and a grandfatherly air, drew laughs at points of irreverence, and caught attorneys off guard at others. When Olson began his opening statements, Walker very quickly interrupted him, and soon challenged him to explain why states are even in the marriage business. It’s a point he brought up more than once: What if California just granted everyone domestic partnerships, essentially putting everyone on equal footing?

“I think politically, it will never happen,” Olson said.

As unlikely as it may sound, however, Walker’s fixation on the idea was taken as a positive sign by Boies. “I think the court is focusing on exactly the right issue, that once the state gets involved in the marriage business, they will have to do it in a non discriminatory way.”

For their part, Prop 8 proponents will get their chance to tell their story in testimony in the days ahead. And as much as they may bristle at the tactics of their foes, they too will be fighting on the personal level. That was on display today, when they ran another Prop 8 video in which a
Massachusetts couple talks about their child being forced to learn
about same-sex marriage in schools.

Note: Apologies for the double posting earlier today. Needless to say, the wireless access in the courtroom is erratic.

Update: More coverage of opening day from The Advocate here; LGBT POV here; the Los Angeles Times here; and the New York Times here.

Much has been written about Walker’s insistence on interrupting lead plaintiffs during their opening arguments, as if to demand facts over platitudes. But there was one particular point that was notable during Ted Olson’s statement, when Walker asked him why the courts should be weighing in on this issue at all. Olson’s voice took a lower tone, as if to stress the point, “That is exactly why we have courts, why we have the Constitution and why we have the 14th Amendment.”

Also, Stier echoed other plaintiffs’ arguments that domestic partnerships don’t measure up to marriage. “It doesn’t describe our relationship in a way that feels authentic,” she said.

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