A look at how Proposition 8 defenders seek to justify the same-sex marriage ban

What do gay political icon Harvey Milk, anti-gay marriage activist Maggie Gallagher, controversial military contractor Blackwater, and the Walibiri aborigines of Central Australia have in common?

All are cited in the 3,001 exhibits filed by supporters of California’s same-sex marriage ban, Proposition 8, for inclusion in the trial challenging that law. The trial begins Monday, January 11, in a federal district court in San Francisco. The exhibits provide a glimpse into the strategy that conservative attorney Charles Cooper and his team will use to defend the California law that voters passed in November 2008.

One major focus of the exhibits encompasses the legal question of whether gay men and lesbians are a “suspect class”—that is, whether discrimination against them is so common that there is a reason to suspect that laws that treat them differently are based on that discrimination. In its 1996 decision Romer v. Evans, examining the motives behind an anti-gay ballot measure in Colorado, the U.S. Supreme Court stopped short of identifying sexual orientation as a suspect classification, but it did rule that laws based on animus toward gay people violate the federal constitution.

The legal team challenging Proposition 8 are arguing that gays and lesbians are a suspect class because there is a long history of discrimination against them. They also note that sexual orientation has no bearing on a person’s ability to perform in society. And they will argue that gays and lesbians “indisputably have less political power than other groups that have been designated as suspect or quasi-suspect for equal protection purposes, including African-Americans and women.”

If the pro-gay legal team—led by conservative Ted Olson and liberal David Boies—can show that gay people are a suspect class, the judge will have to require that the defense team show that there is a compelling need for California marriage laws to treat them differently. If Olson and Boies don’t convince the judge gay people are a suspect class, the defense team simply needs to offer a “rational” reason for treating gays differently.

Many of the defense team’s exhibits, of course, appear chosen to fend off the suspect class designation. To counter the idea that gays are politically powerlessness, for instance, there are articles about successful gay politicians, including California Assembly Speaker John Pérez, along with a Gay & Lesbian Victory Fund press release titled, “Poll: Majority of U.S. Voters Open to Electing Gay President.”

Taking a look back at California history, the defense also cites a section of Randy Shilt’s biography of Harvey Milk, The Mayor of Castro Street. The excerpt explains how the California gay community rallied to defeat a 1978 ballot measure (Proposition 6) which tried to ban gay schoolteachers in California public schools.

There are articles from UCLA’s Williams Institute on the economic clout of the gay community, along with annual reports from a number of LGBT civil rights organizations. Following a strategy used during the trial of Colorado’s anti-gay ballot measure, those exhibits will likely be used to argue there is a significant amount of money in the LGBT community. (And the plaintiffs will, no doubt, counter that impression by comparing the budgets of gay groups to the budgets of groups such as Focus on the Family, which are opposing them.) The defense also cites a slew of demographic data they could use to try and demonstrate that gay people hold an outsized percentage of political offices compared to their percentage in the population.

On the question of discrimination, the defense might bring several articles about workplace issues to bear. Among other things, the pieces discuss the many positive benefits of coming out at work and the fact that more and more employers are supportive of their gay and lesbian employees.

The defense cites several years’ worth of FBI Hate Crimes statistics, perhaps to try and demonstrate that the number of hate crimes related to sexual orientation is low relative to other groups and to their percentage in the population.

Religion comes into play as well. The defense includes a number of articles about the religious groups that were against Proposition 8, perhaps to argue that, because people of faith were on both sides, Proposition 8 could not be seen as religiously motivated discrimination.

On the other hand, the defense also lists documents from the “No on 8” campaign that rail against the Mormon Church’s support for Proposition 8 and could be used to argue that opponents of Proposition 8 were discriminating against supporters exercising their religious tenets. That offers one explanation for the inclusion of a blog post from the progressive Courage Campaign, in which Lucas O’Connor explored the ties between the mother of Erik Prince, founder of private military contractor Blackwater, and the religious right.

The plaintiffs may counter the religious arguments with documents from their own exhibit list, including anti-gay statements from the papacy, the Southern Baptist Convention, and the Mormon Church.

Moving to demographics, the defense will introduce into evidence records on population, marriage, and divorce—from California, Massachusetts, and the seven countries that have enacted marriage equality. Defense attorney Cooper could use these to try and draw some nexus between the availability of same-sex marriage licensing and the divorce rate for straight couples.

One other frequent source for LGBT-related demographic information is the Williams Institute. Exhibit 3,000 is identified as “Williams Institute Documents Designated Highly Confidential.” Dr. M. V. Lee Badgett of the Williams Institute, a witness for the trial, declined to speak with the media so close to the trial start. Her associate, Gary Gates, said he has no idea what the document is.

The exhibit list also contains five English dictionaries published across two and a half centuries, a signal, perhaps, that Cooper will want to delve into the definition of specific terms. Three of the dictionary exhibits cite the page containing the word “marriage.” He may additionally be preparing for a philosophical debate about the nature of liberty and rights, given his inclusion of John Locke’s Two Treatises on Government and Isaiah Berlin’s Two Concepts of Liberty.

But M.J. Meggitt’s Desert People: A Study of the Walbiri Aborigines of Central Australia? What could that possibly have to do with the same-sex marriage controversy? Given the inclusion of other anthropological works—such as Claude Levi-Strauss’ A History of the Family—it may be an effort to argue that certain definitions of marriage and family extend not just over time, but over cultures.

Noticeably absent from the defense team’s exhibit list is Paul Cameron, a controversial anti-gay figure whose interpretations of data on sexual orientation have been discredited by most professional organizations working in the sociological and psychological fields. Instead, the defense cites research that, on its face, is reputable. For instance, there is the National Longitudinal Lesbian Family Study, which comes to positive conclusions about lesbian and gay parents. Dr. Nanette Gartrell, principal investigator of the study and Associate Clinical Professor of Psychiatry at the University of California-San Francisco, said, she could not think of “any finding from our study that could benefit the [pro Proposition 8] argument . . . . Could our publications possibly be interpreted by the pro-8 people to suggest that marriage is unnecessary since the NLLFS families are doing well?”

Dr. Abbie Goldberg, assistant professor of psychology at Clark University in Massachusetts and author of Lesbian and Gay Parents and Their Children (2009), a major compilation of respected research, observed:

“The majority of the peer-reviewed publications [listed among the defense’s exhibits] do not look suspect but . . . it is always possible to take findings out of context, distort or misrepresent statistics and general trends, isolate uncommon participant quotes, etc., to make a particular point.”

At least one of the defense’s documents come from a clinical psychologist who served as the state of Florida’s primary “expert” in the 2008 trial over whether gay people can adopt. The judge said the “expert’s” testimony was “motivated by his strong ideological and theological convictions that are not consistent with the science.” Judge Lederman added, “the court can not consider his testimony to be credible nor worthy of forming the basis of public policy.”

The defense exhibits clearly reflect the growing influence of the Internet. They include blog posts from AmericaBlog, The Bilerico Project, and Perez Hilton, along with posts and tweets from LGBT advocacy groups, a Google Adwords search for the keyword, “Proposition 8,” and Web site traffic statistics from several LGBT civil rights organizations.

Not every one of the listed exhibits will be used in the trial, but the defense is clearly preparing for many contingencies. Compared with the plaintiffs, who submitted a more streamlined list of 1,500 exhibits, the defense list appears to be missing only one item in its arsenal: the kitchen sink.