Prop. 8 Case Summaries: Defense Argue Bisexuals Constitute Potential Harm to Marriage

On Friday, lawyers in the Perry v. Schwarzenegger Proposition 8 trial submitted their case summaries as per Judge Vaughn Walker’s request.  Both sides are said to have included their most hard-hitting points, including a claim from the Proposition 8 defense that bisexuals in particular constitute a threat to marriage.

Firstly, for the plaintiffs seeking to overturn Proposition 8, California’s 2008 gay marriage ban, lawyers David Boies and Theodore Olson submitted a document in excess of 290 pages, aiming to prove that Proposition 8 is unconstitutional. From the American Foundation for Equal Rights:

“This 294-page filing is only a summary of the overwhelming evidence against Proposition 8,” said Chad Griffin, Board President of the American Foundation for Equal Rights. “The evidence proves beyond a doubt that Proposition 8, which separates Americans into unequal groups, violates the U.S. Constitution and causes incredible harm to individuals and our nation as a whole.”

The document outlines the following as the core of the plaintiff’s case:

  • Prop. 8 does irreparable harm to Americans
  • Marriage has shed discriminatory restrictions over time
  • Gay men and lesbians are entitled to the full protection of the 14th Amendment
  • There is no good reason for Prop. 8’s denial of fundamental civil rights

The summary also points out the unequal weight of testimony provided in the case. The plaintiffs in the Perry v. Schwarzenegger trial called on 16 witnesses (including Paul Katami & Jeff Zarrillo and Kris Perry & Sandy Stier, the couples who filed the original lawsuit) whereas the defendant-intervenors Protect Marriage were only able to present two witnesses after their other four dropped out ahead of the trail, claiming that they were likely to face intimidation for their stance against gay marriage.

According to the American Foundation for Equal Rights, the summary presented by the plaintiffs also points to the fact that, during several occasions during the trial, the two remaining defense witnesses – both of whom had their status as “experts” put in question – appeared to make the case for marriage equality in spite of their apparent stance against it:

In addition to outlining the evidence presented by Olson and Boies, the document outlines the devastating admissions made by the defendant-intervenors’ witnesses that further proved our case and undermined the Proponents’; those witnesses’ lack of credentials; and evidence on the utilization of messages of pedophilia, polygamy, incest and bestiality in support of Prop. 8.

You can access the full document by going here.
Like so much of the pro-Proposition 8 side’s material, tracking down a copy of their summary for public viewing is proving difficult (if you have come across the text, please let me know).

However, reports suggest that the pro-Prop. 8 side have not included much of their witness testimony in their summary, at least not for supporting their central argument, and have instead cited research documents that, they assert, prove that “extending marriage to same-sex couples would result in a profound change to the definition, structure, and public meaning of marriage.”

However, calling on the testimony of Professor Miller, their first witness, they advance that lesbian, gay, bisexual and transgender people do not constitute a protected class worthy of judicial intervention, and that LGBTs have political allies and sufficient political power so as not to be classed as a vulnerable group.

Using their other witness testimony provided by David Blankenhorn, the pro-Prop. 8 side are said to have reinforced that marriage hinges on gender roles of “maleness and femaleness” and that procreation is a key element to marriage. Therein, they argue that child rearing is best served by the heteronormative family unit and that this fact means that marriage must, by necessity, exclude same-sex couples.

Perhaps one of their most startling maneuvers in the defense’s summary is where they are reported to have singled out bisexual people as one of the reasons to deny same-sex couples marriage rights:

The potential harms they cited included giving bisexuals a legal basis for pursuing group marriages and unmarried fathers an incentive to abandon their children.

While a copy of the summary text itself has not been forthcoming, text from the defendant-intervenors’ original trial brief also includes this argument:

[Allowing same-sex marriage would] increase the likelihood that bisexual orientation could become a legitimate grounding for a legal entitlement to group marriage.

They did not stress this point in the trial any more than the rest of their slippery slope polygamy arguments, but it is interesting that they have returned to it here.

Under California law, “Only the marriage of a man and a woman is valid or recognized in California” as per Proposition 8 and this, the defense say, guards against the much maligned “group marriage.”

The argument goes that, should same-sex marriage be legalized once again in California, there would be a potential legal basis for a bisexual person to seek recognition for a marriage to both a male and female spouse (one man and one woman) at the same time, leading to a multi-partner marriage.

As far as I can see it, this argument is flawed as California marriage laws clearly state that you can’t enter into marriage while still married to another adult. From the California Department of Public Health website:

“To marry in California, the two parties may not be already married to each other or other individuals.”

Amending civil marriage laws to include same-sex partners does not overturn this aspect of the family code.

However, the defense appear to be arguing that once you grant equal access to marriage for same-sex couples, the next logical and inevitable step is granting multi-partner marriage, and that bisexuals would be the gateway for this.

This relies on the assumption that a bisexual would want more than one spouse because of their attraction to both sexes, and seems to infer that bisexuals are less capable of monogamy than heterosexuals, which is actually broadly offensive and blurs the line between sexuality and the useful social convention of monogamy to an extreme.

It will be interesting to see if the pro-Proposition 8 side revisit this argument as part of their closing statement, which, although as yet unscheduled, is likely to be heard in the next few months.

Keen to revisit the trail for yourself? You can watch the re-enactments of the Proposition 8 court case by clicking here.

Want a basic round up of the events at the Proposition 8 trial? You can take a look at Care2′s coverage below:

Care2 Related Reading:

Related Reading:

Photo used under the Creative Commons Attribution License, with thanks to angela n.


Fa'izah J. A.
Jauharah Andrews6 years ago

Lift the ban on bigamy/polygamy and let people be free to marry whomever they choose and how many they choose. Make sure that all people have a job so no one is collecting welfare and letting hardworking taxpayers take care of them and their chosen lifestyles.

michael mifsud
.6 years ago

and therefore the legal right to acceptance and protection by the state without discrimination in favour of who they are or what they do in or outside bed.

michael mifsud
.6 years ago

It is amazing in this day and age just how much sexual education has fallen overboard. Reading comments by people who seem to just want to let others know what they sexual preferences are makes me wonder how long it is going to take to get back to the basic simple concepts of sex and marriage. All humans and animals demonstrate and are capable of sex with same or opposite sex. The problem lies in ideologically induced behaviour. In the latin countries, for example, where machismo and femininity sits on pedestals, the level of hidden homosexuality is on par with so called " normal behaviour" In religiously intolerant countries, with death in some cases, it is also prevalent despite the deterrant. What it means really is, that everything must be taken in context to determine its worth. sexual preferences are for the participants not outsiders to make note of. Fidelity like friendship is a lifelong committment with its ups and downs. Bisexuality has nothing to do with it. One or another aspect of the inclination depends on the love and considered loyalty achieved between the parties. Legislation in this respect, must only touch on areas where harm is involved, not whether it affects another man made institution with all its faults and anachronisms. All forms of bonds for better or for worse like the care of invalid parents or partners and even the simple decision to "live together" whether young or old of any sex has by definition, an inbuilt sense of committment and ther

Darcy H.
Darcy H6 years ago

Seriously? This pisses me off. As a bi-sexual woman, I only want to be able to marry whomever I fall in love with. They are perpetuating the old stereotype that bi-sexual means slut. I can't speak for an entire group, but I whole-heartedly believe that most bi-sexuals are monogamous and only want the same rights as everyone else. There's a huge difference in being bi-sexual and being a polygamist.

Jon Hoy
Jonjon Hoy6 years ago

You can't love two people at the same time. It's either one or the other or you have jelliousy over ruling the relationship. Great article!

Sharon A.
Sharon A6 years ago

What you do in your home with your partner does not matter one whit to me as long as both are consenting adults and no one is being harmed. What I do in my home with my partner should not matter to you either.

For all you who are spouting biblical rhetoric....what goes on between my chosen god and me is MY business, not yours. How about you worry about your immortal soul and I will take care of mine...that way, we can all live and let live.

Gary Stewart
Gary Stewart6 years ago

Correct me if I'm wrong but bisexuals can already marry someone of the opposite sex and would have more incentive to do so than someone attracted to only their own sex. This being the case wouldn't their opposite sex marriage be just as likely to lead to a demand to marry people of both sexes as a same-sex marriage would?
As for this "slippery slope" argument let's not forget that same-sex couples wish to have the same rights as opposite sex couples so the "slippery slope" started with those!

Ann H.
T. A. H6 years ago

Why is this still appearing? It's 18 months out of date and been made obsolete by many legal maneuverings which have occurred since the ruling.

Monica M.
Past Member 6 years ago

Marriage is first and foremost a binding of 2 lives (or sometimes more than 2). The couple can choose to remain childless and travel the world if they so desire, never setting up a home, but most do set up a home. Most have children, and many gay couples have kids either by adopting, artificial insemination or other means. There is nothing to suggest that there needs to be both genders represented in a marriage. Marriage provides legal and societal legitimacy and security (providing it's a good marriage) and should not be denied to people merely due to their sexual orientations.

Wedding Planning Bay Area

Robert H.
Robert H.7 years ago

The exegesis for the 2nd and 3rd chapters of Genesis makes us nervous. Why? Because the sin Adam and Steve committed, according to the story, was anal sex--the mystery Augustine almost solved 1600 years ago. (He thought their sin was normal penile/vaginal sex!) For more information google "WikiAnswers-What is wrong with Robert Hagedorn's Blogs"