Gay Marriage on Trial: The Child Factor

Gay marriage is on trial, but it seems that parenting and the effect of gay marriage on children was the issue being weighed most heavily in the first day of the Perry v. Schwarzenegger trial yesterday. The defense argued that gay marriage could “de-institutionalize” marriage from one that is pro-child and pro-procreation to one focused more on “a private relationship for personal fulfillment,” said defense attorney Charles Cooper.

Cooper said that a landmark 1967 Supreme Court decision, Loving v. Virginia—a key case for the plaintiffs—which allowed for interracial marriage is not a precedent-setting case for the gay-marriage issue, since that case involved “two individuals involved whose sexual relations could lead to procreation.”

But the plaintiffs are also arguing that the use of children in Prop 8 advertisements has had a discriminatory effect toward gays. Plaintiff Jeffrey Zarrillo and his partner Paul Katami both gave emotional appearances talking about their commitment to each other, their desire to get married and then have children. Tearing up, Katami described his hurt and horror at seeing Prop 8 ads arguing that to vote yes would be to “protect the children.”

“When I think of people who children need to be ‘protected’ from, I think of criminals or pedophiles,” said Katami. He described his love of children, especially his niece and nephew, and began choking up when he realized that people could consider him as threatening as a pedophile. “I’m so far from that category [of person].”

Speaking to NEWSWEEK briefly during a break, plaintiff’s attorney David Boies said his side plans to use the issue of children to its own end: “We plan to show that rather than protecting children, forbidding gay marriage actually harms children.” While one of the defense’s exhibits, an anti-gay-marriage ad called “Gathering Storm,” was not allowed into evidence, Boies was pleased that two Prop 8 advertisements were not blocked. “The children ones got in.”

But the defense is arguing that gay marriage is being taught to first and second graders in schools, and while it refrained from cross-examining the first plaintiff, attorneys did question Katami on whether he thought that was appropriate. He explained it was reasonable for a parent to disagree with gay marriage being broached early in schools, but that both parents and schools and the community had an obligation to discuss issues with children. He briefly seemed upset that children had taken over the day as such a major theme.

“Is it the whole issue? No. Is it a potential diversion away from the issue? Yes.”