Proposition 8 opponents express confidence. The judge could rule by March; an appeal is expected regardless of the ruling.
By Maura Dolan

January 28, 2010

Reporting from San Francisco – Testimony in the historic federal same-sex marriage trial ended Wednesday, with ebullient attorneys for two gay couples expressing confidence and defenders of Proposition 8 conceding they may have to wait for victory from a higher court.

Analysts who followed the trial anticipate that Chief U.S. District Court Judge Vaughn R. Walker is likely to rule for the challengers of Proposition 8. Walker, a Republican appointee with libertarian views, made it clear from the start that he wanted a full-blown examination of the social and political controversies surrounding gay marriage. He could rule as soon as March, after closing arguments.

Whatever Walker decides, the ruling almost certainly will be appealed to the U.S. 9th Circuit Court of Appeals and probably up to the U.S. Supreme Court.

Andy Pugno, a lawyer for proponents of Proposition 8, said Wednesday he was confident that his side would prevail on pure legal issues, “whether here or down the road.” He said the challengers put on a “spectacular show,” but the evidence they presented was more political than legal.

The lopsided trial included 16 witnesses for the challengers and two for the defense. Although both sides conducted lengthy cross-examinations, David Boies, an attorney for the challengers, won the most concessions.

Pugno said the legal burden was on the challengers to prove there was no rational justification for voting for Proposition 8. He cited as rational a view that children fare best with both a father and a mother.

But challengers hope the courts will give gays and lesbians the stronger constitutional protection accorded to race, as the California Supreme Court did in 2008. If so, the proponents of Proposition 8 would have to show there were compelling reasons to deny gays marriage.

Pugno has said his side was outgunned in the courtroom and has complained that Walker’s rulings favored the challengers. But he said the Proposition 8 campaign had no regrets about the two witnesses it called. One was a prominent opponent of same-sex marriage, the other a political scientist.

The other side was “effective in getting our witnesses to concede points that have nothing to do with the case,” Pugno said.

Among the concessions made by defense witnesses: Studies show that children reared from birth by same-sex couples fare as well as those raised by opposite-sex parents, and marriage would benefit same-sex families.

Lawyers for the two gay couples challenging Proposition 8 appeared elated after the proceedings ended Wednesday. Theodore J. Boutrous Jr. said they showed that the marriage ban was irrational and that the November 2008 vote was tainted by prejudice and “hateful and erroneous messages.”

Boies contended that the concessions made by defense witnesses were critical to helping make the challengers’ case. Both defense witnesses frequently appeared beleaguered under Boies’ sharp questions and relentless demands for specific evidence to back up defense claims.

After Boies cross-examined one weary defense witness for hours, the judge called for a break. Boies turned to face the audience in the courtroom with a big smile on his face.

David Blankenhorn, the founder and head of a think tank on marriage and family, was the last witness. He said Wednesday that he believed the rights of gays and lesbians should take “second place” to preserving the traditional institution of marriage.

The collective needs of children are more important than the rights of same-sex couples, he said, and he described himself as reaching that conclusion with anguish.

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