Many believe that the marriage case in San Francisco will eventually end with a decision from the United States Supreme Court. Few would have guessed that it would also begin with one. But shortly before the trial began Monday, the Alliance Defense Fund received word that the Supreme Court had issued an 8-1 decision staying the trial court’s decision to broadcast the proceedings over the Internet.
Everyone remembers the outrageous acts of voter intimidation, violence, and property destruction against Prop 8 supporters (http://www.youtube.com/watch?v=CA3ViJdP5z8), before and after the successful campaign. So, to protect our witnesses, ensure the integrity of the process, and prevent this trial from becoming a circus, we asked the Supreme Court to review the trial court’s unprecedented decision to broadcast. The Court agreed (albeit at the 11th hour) and we’re hopeful the Court will issue a permanent stay. We will know more by Wednesday.
It’s clear from the opening-day proceedings that marriage-and its historic purpose-is literally on trial in San Francisco. The beliefs of more than seven million Californians who voted for the marriage amendment are also on trial. Both these points came into sharp focus as Chuck Cooper and Ted Olson made their opening statements this morning (which were accompanied by a steady pepper of questions from the judge - quite unusual during opening statements). Chuck Cooper noted that marriage has been defined as a union between a man and a woman across cultures, religions, and countries throughout history. Every state in our country that has put this issue to the voters has, overwhelmingly in most cases, affirmed that marriage is a union between a man and a woman – 30 by constitutional amendment. Even Maine rejected its legislature’s proposal to redefine marriage. And as Chuck pointed out, even President Obama believes marriage should not be redefined to include same-sex couples. Nonetheless, and against this backdrop, Ted Olson argued that California has “no good reason” to reject the radical social experiment that is same-sex “marriage.” And that to do so - presumably whether from the blue states of California and Maine, or the mouth of President Obama -is an act of bigotry.
The four plaintiffs also got on the stand and gave testimony. We decided to cross examine only one of those witnesses, which ADF senior counsel Brian Raum conducted very effectively. Brian focused on the fact that what the campaign argued when it said Prop 8 would protect children was that it would help preserve the right of parents to decide what their kids are exposed to and when. He played the campaign’s ads demonstrating that very young children received lessons on same-sex “marriage” in Massachusetts public school after the state’s high court redefined marriage, and that parents were denied the right to object. He also played an ad describing an outrageous incident in which first graders were taken on a “field trip” to a same-sex wedding in San Francisco, presided over by Mayor Gavin Newsome, culminating in Newsome’s infamous comment that it was a “teachable moment.”
It was particularly disappointing to hear Ted Olson, former champion of the Federalist Society (which advocates limited federal intervention in states’ affairs), essentially advocate judicial activism. Through this case he’s now become the champion of imposing same-sex marriage on California and every other state. That’s the potential outcome if his claims are successful. He argued - with vigor - that states are constitutionally prohibited from preserving the age-old definition of marriage. Sounds a lot like a “living, breathing” constitution to me. I miss the old Ted. Thankfully, Chuck Cooper made the constitutionally-correct point very effectively when he reminded the judge that it isn’t his role or right to decide this question. And that it isn’t the Ninth Circuit’s. Or even the Supreme Court’s. Under our system of government, it’s Californians that have that right. And seven million of them spoke loud and clear through Prop 8. Let’s hope they don’t have that right ripped away, or we’re all in trouble.