Much of the quoted testimony, which may not be the entire or best testimony, show that there is an emphasis on social acceptance rather than actual legal issues. For example:
Jeffrey J. Zarrillo, one of the plaintiffs, was the first to be called to the stand. Zarrillo, 36, a manager in the entertainment industry, testified tearfully about being denied the right to marry Paul T. Katami, his partner of nearly nine years and a co-plaintiff.
"He is the love of my life," Zarrillo said. He testified that marriage "is the logical next step" for him and Katami. It would send the message that they are serious and committed to each other, he said. Checking into hotels with Katami is often "awkward," he said, as clerks sometimes ask if they meant to reserve a king-size bed.
Well perhaps logical to him but the big flaw in his statement here is that the courts have no jurisdiction over "awkwardness."
Katami, 37, a group fitness manager, called himself "a natural born gay" and testified that being denied marriage felt like being "relegated to a corner."
"I don't think of myself as a bad person," Katami said in response to questions from Boies...
All of the plaintiffs testified that domestic partnership is substantially different from marriage. They complained that they do not have access to the word "marriage" to explain their relationships and feel either shunned or pitied.
Nor does the court have any jurisdiction over feelings of inferiority. It would be a particularly bad precedent for the court to make the decision based on emotions rather than actual legal issues.
However a witness for the plaintiffs made a particularly strong statement:
The day ended with testimony from Harvard professor Nancy Cott, an expert in the history of marriage in the United States.
She said Cooper's opening statement that marriage between two members of the opposite sex was universal was inaccurate. Ancient Jews were polygamous, she said, and in some countries Muslims can marry several women.
Which leads to my oft stated position that the hypocrisy of the pro-same sex marriage movement is that it does not actually promote marriage equality because it too discriminates against persons who wish to marry more than one woman (or man). This is a blind spot caused by the generally Christian backers of Prop. 8 How they, with a straight face say that Marriage has always been between one man and one woman, is beyond me. Solomon had many wives.
That blindness also causes them to not realize that they have a strong argument in their favour in the form of the state of Utah. Utah was admitted into the Union only after it was forced to abridge the religious and personal freedom of it's citizens. This is a strong precedent in favor of prop. 8. If the govt. can claim, that there was and still is a compelling interest in abridging the religious and personal freedom of Mormons and any one else who wishes to practice polygamy, then it can certainly make the same claim in the case of same sex marriage. If I were a lawyer in the pro prop 8 camp. I would hammer this theme.
Ultimately I believe exactly what Judge Vaughn R. Walker asked:
U.S. District Judge Vaughn R. Walker asked if the state should simply get out of the business of issuing marriage licenses.
"That may solve the problem," Olson said, but it "would never happen."
That would be the only way to be "equal".
On the Anti-Prop 8 side, they will need to keep the talk about the legal issues surrounding services, particularly by the government that are denied to them on the basis of marital status. The risk for them, is that the government could go where I think it should, and simply not give out marriage licenses to anyone and everyone would have a "civil union" or "certificate of co-habitation" or whatever they decide to call it.
Oh and the comparisons to Dred Scott are entirely out of order. Dred Scott (and by extension Loving) was about the legal designation of blacks as less than human and therefore not even covered by the laws of the land. There is no argument being put forth that homosexual men and women are not human. Anti-Miscegenation laws were again based on white supremacist science that claimed that not only were blacks sub-human but because of that the offspring of such breeding would be sub-human as well.
