On June 16 Wendi and I are able to sit in the first overflow room primarily due to strawberries. The benches of onlookers have already been filled by 9:20 am and we have been downstairs getting coffee, thinking we had plenty of time. “My son’s inside,” Wendi insists, and the woman guarding on the door looks unimpressed until she remembers, with a smile, “strawberries. He’s the one with strawberries!”

So we make it onto a bench in the back in a courtroom on the 19^th floor, what turns out to be one of two rooms with two giant screens on display. Of course, the biggest win for the defense in the case of Perry v. Schwarzenegger was the banning of cameras from the courtroom. We are warned not to use any recording devices, and in the actual courtroom on the 17^th floor, cameras are also banned.

I had expected there to be more protestors outside, but instead there are only a few people with token signs. There is a line of people still waiting for the second overflow room when I go out to use the ladies room. “H-U-G-H” I’m told, is the password, to get back in. Wendi suggests this stands for “Hey U Gorgeous Hunk….”

We don’t feel so bad about only watching the trial on a screen when we find out from the guy sitting beside us that there were only 13 slots available for ordinary people in the actual courtroom, and someone showed up at 4:30 a.m. only to be sixteenth in line.

Wendi’s son is 17 and he has the day off from school during finals to be a witness. We know we are lucky to be witnesses, even second hand, when the proceedings begin and Judge Walker notes that he had hoped the trial would take place earlier. Then adds, dryly, “But it may be appropriate that the case is coming to closing arguments now. June is, after all, the month for weddings.”

As a college student working in a law office, I remember realizing how rare it that life imitates art when it comes to courtrooms and drama. How stunning then it is to see a case like this one, with attorneys at the top of their form, fully intellectually and emotionally engaged in legal tennis, with serious social consequence. The judge, and the plaintiff’s team, Mr. Olson and Mr. Boies, of Bush V. Gore fame, where they faced one another on opposite sides of the aisle, play together here with particular agility and wit. Mr. Olson, who once represented Bush, makes his opening case for the plaintiffs.

It turns out that both the plaintiffs and the defense are highly concerned with the well being of children. Mr. Olson argues that there is psychological evidence that the 37,000 children in California currently being raised by same sex parents would be better off if their parents were permitted to legally marry one another. Further, he argues that the very basis for Proposition 8 was an appeal to voters, “protect our children.” Protect “our children” from what?

“Protect our children from thinking that gay marriage is okay.”

Olson continues,“that was a not very subtle theme that there is something wrong, sinister or unusual about gays, that gays and their relationships are not okay, and decidedly not suitable for children, but that children might think it was okay if they learned about gays getting married like normal people.”

Mr. Cooper, the attorney for the defense, has a more serpentine argument concerning the well being of children. His argument is that the state has an interest in preserving the traditional definition of marriage, for the purpose of avoiding “irresponsible procreation” between heterosexuals. And therefore, because homosexual couples cannot “irresponsibly procreate” without outside help at least, they do not require a state-sanctioned marriage.

Mr. Cooper’s arguments are tricky to follow, particularly since he argues that he doesn’t need to present evidence. This is a quite convenient line for him to take since it appears that one of his key witnesses, a Mr. Blankenhorn, argued on the stand that on the day that the state recognizes gay people’s right to marry one another, America will become more American.

“And that’s your own witness,” Judge Walker points out.

And Mr. Olson, in his rebuttal, will also refer to Mr. Blankenhorn as “coming around to our side.”

The legal tennis will go on for a long time after this trial. It may revolve around how much scrutiny needs to be given to Proposition 8, whether voters were motivated by animus, or discrimination and whether immutability is an important part of whether or not gay people are considered a legally protected group, as women are. However, the arguments that stand out to me as particularly important, and the reason that this trial should have been televised for the whole nation to see, were the so-called deinstitutionalization of marriage arguments. Mr. Olson points out the evidence showing that deinstitutionalization of marriage (or increased divorce rates) occurred around the globe from 1970 to 1985 and have no viable relationship to the question of whether or not gay people can marry one another today. There’s no reason to suspect that heterosexual couples will be more or less likely to marry, stay married, or to “responsibly procreate” because of their neighbors’ right to marry the person they love, regardless of gender.

And just as importantly, many supporters of Proposition 8 have never addressed the fact that the stigma of being thought of as “not okay” or a second class group of citizens causes measurable harm to gay people and to their children.

The plaintiffs and their children sat in the courtroom to hear closing arguments, and their testimony, replayed by Mr. Olson, deserved to be heard by a wider American audience.

Paul Katani testified about his partner, “I love him more than I love myself, I put his needs head of my own, in sickness and health, richer or poorer. I would like nothing more than to marry him.”

And Kristin Perry, “If I grew up in a world where I could have made this decision things would have been different. There’s something humiliating about wanting to be able to make that decision and not being able to do so. I can’t take that personally, but it is really hard not to. Kids growing up in Bakersfield like I did would live their lives on a higher arc, it would improve their entire life knowing they could marry.”

And Sandra Steir, “Kris and I are big strong women, we’re in a good place. We’d benefit greatly, but others would benefit even more.”

Since this is a subject important enough for ballot measures, fundraising letters, and churches sermons, it’s a subject also important enough to be brought out into the open, into national daylight for political debate by our country’s greatest experts, and legal minds. In contrast to George Rekers, cofounder with James Dobson of the Family Research Council, who was not long ago paid $120,000 to testify for the state in upholding a ban on gay adoption in the state of Florida, who was later found traveling around Europe with a twenty year old from rentboy.com, there is something refreshingly honest about hearing about gay marriage for once from the human beings it most directly affects.

Business women from Iowa, auto mechanics and CEO’s from Texas, farmers, waitresses, and college students in Florida should have had the opportunity, to hear Kristin Perry, Sandra Stier, Paul Katani, and Jeffrey Zarrillo testify about their lives in their own words. And, of course, the defense witness, Mr. Blankenhorn’s words should have had the opportunity to ring forth from the darkest corners of fox news’ corporate slumberhouses.

“We will be more American the day we permit same-sex marriage.”

*  *  *  *

For anyone who wants to catch the amazing Wend Elsen’s inimitable take on the Proposition 8 Trial, here’s her smart & irreverent series:

Is our children safe? Perry v. Schwarzenegger, on the fifth day

The orientation of species Perry v. Schwarzenegger: And on the 9th day they tried to Rest

Marriage without Borders The Final Prop 8 witness

Status Suspect Ted Olson argues for a Traditional June Wedding

Proposition 8: Coming to Theatres Everywhere Mr.Cooper pitches Procreationism