The court case surrounding Proposition 8 began on Monday with opening statements from the defense and the prosecution, as well as emotional testimony from the plaintiffs. Here’s a brief outline of Monday’s events and some resources to help you keep up to date with the Proposition 8 court case.

Court proceedings began at 9:00 AM. Judge Walker declared that even though the Supreme Court had temporarily blocked the broadcasting of the trial, he would be recording Monday’s proceedings should Wednesday’s ruling on the trial’s broadcast be favorable. As to public comment on this matter, he noted that over 138,000 members of the public wrote to him regarding the public broadcast of the trial and only 32 were against it.

Opening statements then followed. In a lengthy and thorough discourse Theodore “Ted” Olson laid out reasons as to why Proposition 8 was unconstitutional and how it had harmed the plaintiffs, saying that he and fellow counsel intended to prove this claim during the court case:

“During this trial, Plaintiffs and leading experts in the fields of history, psychology, economics and political science will prove three fundamental points:

First – Marriage is vitally important in American society.

Second – By denying gay men and lesbians the right to marry, Proposition 8 works a grievous harm on the plaintiffs and other gay men and lesbians throughout California, and adds yet another chapter to the long history of discrimination they have suffered.

Third – Proposition 8 perpetrates this irreparable, immeasurable, discriminatory harm for no good reason.“

Olson also indicated that he and Boies would be drawing on several key court cases including Loving v. Virginia the 1967 Supreme Court case that struck down laws that banned interracial marriage and also designated marriage as “one of the basic civil rights of man”.

Olson’s opening statement has been provided by the Equal Rights Foundation. To read it, please click here.

Therese Walker, a chief deputy city attorney for San Francisco, added to the opening statement that, as a result of Proposition 8, she believed that there was evidence of an increase in hate crimes in California against lesbian, gay, bisexual and transgender people. No doubt this will be revisited at a later time.

I’m having a hard time getting hold of a clean copy of Charles Cooper’s statement for the defendant intervenors (if anyone comes across one, please let me know in the comments section and I’ll certainly add it here) but the Advocate has provided a brief outline of his central argument:

Charles Cooper, the lead attorney defending the ballot measure for intervenors that include Protect Marriage and the Alliance Defense Fund, argued repeatedly that marriage is a fundamental institution for natural procreation – even if not all marriages lead to the raising of children. He also asserted that countries and states that have permitted marriage for same-sex couples have led to “real societal harm,” including lower marriage rates, higher rates of divorce, and more children raised outside of wedlock.

Cooper further argued that the California LGBT lobby wields significant power and is not the embattled minority characterized by the plaintiffs. “This is not ill will nor animosity for gays and lesbians, but special regard for this venerable institution,” Cooper said of marriage.

Throughout the opening statements Judge Walker was not content to sit back and simply listen to the arguments being presented. Instead, he interjected with a number of questions, trying to draw out the deeper arguments behind this issue.

He repeatedly challenged both sides on their assertions, asking Olson why it was that the court should intervene over Proposition 8 and not simply allow it to play out at the ballot level – Olson answered that it was the job of the judicial branch to protect people from unjust laws. Judge Walker also challenged Cooper, reminding him that he had to prove his assertion that allowing gay marriage would indeed impact heterosexual unions.

The court then heard from the plaintiffs in the case who gave emotional testimony on how they felt that denying them marriage rendered them second-class citizens.

David Boies asked for a number of the Yes on Proposition 8′s campaign videos to be shown to the court in order to demonstrate that the ballot campaign drew on anti-gay prejudices. Also requested was another ad entitled “Gathering Storm” which was created by the National Organization for Marriage (NOM), a sinister and much parodied piece – Judge walker allowed the first set of clips, but refused the second saying that it was not directly connected to Proposition 8 as it was broadcast after the November ballot and, although NOM did give money to the Proposition 8 campaign, they were not directly involved.

The first set of tapes were shown despite protests from Cooper and the pro Proposition 8 team. David Boies asked Plaintiff Paul Katami how the ad made him feel:

“It made me feel bad. That image of an oncoming freight train that will kill you that makes me feel that I am part of a community that will kill people? I want to marry Jeff. I’m not going to start a movement that will harm people or children”.

Olson asked Plaintiff Kristin Perry about her relationship and identity as a lesbian. Perry answered by talking about how she met her partner and how they wanted to have their relationship recognized in the same way that heterosexual couples can. 

In his testimony, Jeff Zarillo said that not only did Proposition 8 cause him harm, it had an effect on other states because once the constitutional ban was enacted in California, it had a bleed effect, with places like Maine rushing to do the same because this high profiled victory gave the cause against equal marriage rights a shot of momentum.

Read more about the first day of testimony from the Los Angeles Times.

Lastly, Harvard University professor Nancy F. Cott took the stand and talked about the history of marriage in America. During Attorney Ted Boutrous questioning, Cott said that the defendant’s assertions that marriage had always been between a man and a woman were not historically accurate.

She also contended that there was real proof that marriage was a civil right, that history corroborated this, and that “Only those who cannot marry their partner of choice – or marry at all – are aware that the ability to marry is an expression of one’s freedom.” She also added, “There is nothing that is like marriage except marriage.”

So that’s the basic run-down of events. Here’s my take. Olson and Boies seem to have started very strongly. They were clearly thoroughly prepared, concise and articulate, with Olson’s opening statement leaving us in no doubt of what he and David Boies aim to prove: that there is a fundamental right to civil marriage for gay and lesbian people. 

However Judge Walker did not give them an easy ride (nor did he with the defense). And now the true enormity of the case hits home. 

The case is unusually broad because, for the first time, it seems the court will hear the argument LGBT groups have been advancing for years: that the denial of marriage rights and other such fundamental rights has a trickle down effect, perpetuating anti-gay feeling, prejudice, and, in some instances, hate crimes.

Notably, the federal Defense of Marriage Act was mentioned and Olson was asked by Judge Walker if that too was unconstitutional. Olson said that he personally believed so, but would not be drawn further into that debate, though the inference of what that could mean seems easily apparent and will no doubt be a factor in Judge Walker’s mind when he renders his verdict.

Judge Walker also became very interested in domestic partnerships during Monday’s opening testimony, asking whether it would be better that California did away with marriage all together and instead used domestic partnerships as its framework for structuring benefits and legal rights. Naturally the defense were not thrilled at this prospect, Olson was was more receptive, all be it skeptical, saying “That may solve the problem [but it] would never happen”.

The Proposition 8 side seem to be hinging their case on the idea that the “procreative purpose of marriage” could potentially be “diluted or weakened” by same-sex marriage, something they say their expert witness will support. They also contend that just because there is no proof of harm, it doesn’t mean it can’t happen and therein the State has a fundamental right to guard against the possibility. Cooper even challenged Olson and Boies to demonstrate that no harm could result from equal access to marriage rights, attempting to switch the burden of proof. 

The defense also mentioned that President Obama has said he believes that marriage should be between one man and one woman. A thorn in the side of gay marriage advocates perhaps, but Judge Walker shot back that President Obama’s parents would have been prevented from marrying in, say, Vermont had they have lived there when they chose to marry. The defense eventually argued that there is a difference between race and sexuality. Judge Walker highlighted in the pre-trial hearing that this was an issue he would like to examine: whether sexuality, like race, constitutes an immutable characteristic.

Finally, while a copy of Cooper’s opening statement has not been forthcoming from the pro Proposition 8 side as yet, comment on the day’s events by General Counsel member Andy Pugno has been put up at ProtectMarriage.com. You can read it here.

Similarly, Pam’s House Blend has a post from Shannon Minter, a lawyer from the National Center for Lesbian Rights, with legal analysis of the day’s events from a pro-gay marriage standpoint. You can read it here.

The Courage Campaign are running a live blog on the trial so that you can keep up with events in the court room as they happen. You can follow it by clicking here.

You can follow the case on Twitter via the Twitter Feed of the American Foundation for Equal Rights.

I’ll continue to bring select coverage of the important issues and events as the case develops over the coming weeks.

Related Reading:

• Theodore Olson’s Road to Same-Sex Marriage Advocacy
• Perry v. Schwarzenegger Complaint

Care2 Related Reading:

• Won’t Someone Think of the Children?
• The Proposition 8 Court Case: Opening Statements, Testimony and Reaction
• The Proposition 8 Court Case: What’s the Big Idea?
• Should the Prop. 8 Court Case Be Broadcast?