An important question that I think is raised by the testimony so far in the Proposition 8 trial is: “Is any of this relevant?” For instance, the perceptions of plaintiffs that they are marginalized in society because only opposite-sex couples can legally marry in California. Their point is helpful as a spur for defenders of traditional marriage and others to seek to be more kind and considerate of those whose experiences and opinions differ. It does not, however, seem to be legally significant.
Same too with the testimony meant to show that marriage has changed over time. Some of that is a little off-point since I don’t think there’s ever been a showing that marriage has had absolutely nothing to do with children or broader societal goals (the result plaintiffs argue for). It also does not seem to be legally significant. There’s certainly a place for history in constitutional law. There is Supreme Court precedent to the effect that a fundamental right is such only if deeply rooted in the history and tradition of the nation. The testimony in this trial doesn’t reach that point. I doubt anyone would dispute that some legal incidents of marriage have changed over time, but that hardly makes one more change (especially such a momentous one) constitutionally mandated.
The testimony highlighted today has to do with past perceptions of people who experience same-sex attraction. Is there some sort of affirmative-action policy that requires any mistreated group to get their policy preferences enacted by the judiciary? The cross examination has effectively demonstrated that past attitudes are changing. Why should the courts step in to give history a push in the “right” direction? Again, the testimony doesn’t make that clear.