Forget the law. Chief U.S. District Judge Vaughn Walker has allowed the trial over a challenge to overturn Proposition 8 -- the 2008 California ballot initiative that limited marriage to "a man and a woman" approved by 52 percent of California voters -- to turn into what the measure's opponents like to call a "teachable moment." That's another way of saying that the law isn't as important as feelings in this trial.
Feelings rule -- and not just because the measure's foes somehow believe that Californians haven't been taught enough about gay people. Anti-8 attorneys have chosen to argue that Proposition 8 is unconstitutional in light of a 1996 U.S. Supreme Court decision that overturned a Colorado ban on gay-rights measures because it was motivated by animus toward homosexuals. If they can convince Walker that the Proposition 8 people are haters, he may overturn the will of the majority of California voters.
Plaintiff Kristin Perry of Berkeley testified in the first week of trial, "The state isn't letting us be happy." You know, that's the way a teenager talks -- yet it now rates as evidence in Walker's court.
On Tuesday, the feelings-a-thon continued with Republican San Diego Mayor Jerry Sanders as star witness for Proposition 8 foes. Sanders used to oppose same-sex marriage, but favored domestic partnerships for same-sex couples. In 2007, the San Diego City Council passed a resolution supporting San Francisco's legal efforts supporting same-sex marriage. Sanders' lesbian daughter, Lisa, told him it was OK if he vetoed the measure. She explained in a press conference later that it was "more important" that her father remain mayor of San Diego.
Nonetheless, a teary-eyed Sanders supported the resolution. He testified that his earlier support for civil unions had been "grounded in prejudice." And: "I was discriminating even against my own daughter."
Sanders also said, however, that his support for civil unions was not based on "moral disapproval" or hatred and that others could support Proposition 8 without animus toward gays. That punctures the "no" side's legal argument.
UCLA Williams Institute researcher Lee Badgett also testified for the anti-8 folks. She talked about the economic advantages of same-sex marriage as opposed to civil unions. But as pro-Proposition-8 attorney Chuck Cooper noted, Badgett herself wrote an October 2006 op-ed piece supportive of civil unions that referred to domestic-partner law as "equal treatment of same-sex couples."