Magazine Feature: The Romantics
Ted Olson (left) and David Boies talk with their clients, Sandra Stier and Kristin Perry, who are plaintiffs in the historic Perry trial. (Photo by Gabriela Hasbun)

The California trial to legalize same-sex marriage was a Scopes trial redux, pitting science against religion. It also dramatized the defining civil rights battle of our time. (Please view the full PDF of this article.)

The nation’s most famous trial lawyer contemplated his foe, a man who had whipped public opinion into such a state that citizens passed a law requiring others to conduct themselves according to religious belief rather than scientific knowledge.

The threshing machine of a lawyer bore in on the man’s beliefs, the depth of his knowledge and comprehension of their foundations. Far from lecterns and populist pulpits, the man was now confined to a witness stand, where his testimony laid bare that his faith in God and the teachings of the Bible were the reason children could not learn evolution.

“You have given considerable study to the Bible, haven’t you?”

“Yes, sir, I have tried to,” the witness replied.

“Well, we all know you have, we are not going to dispute that at all,” said the lawyer. “But you have written and published articles almost weekly, and sometimes have made interpretations of various things?”

The witness was not a stupid man. If he acknowledged that he interpreted some biblical passages, he knew it would be hard to quarrel with an opposing interpretation.

“I would not say interpretations, … but comments on the lesson.”

And so the lawyer turned to the Old Testament. ”Do you believe Joshua made the sun stand still?” he asked.

“I believe what the Bible says. I suppose you mean that the earth stood still?” the witness countered.

“I don’t know,” the lawyer responded. “I am talking about the Bible now.”

“I accept the Bible absolutely,” the witness said. “I believe it was inspired by the Almighty, and He may have used language that could be understood at that time instead of using language that could not be understood” until you were born.

“If the day was lengthened by stopping either the earth or the sun, it must have been the earth?”

“Well, I should say so,” the exasperated witness sighed.

“ … Have you ever pondered what would have happened to the earth if it had stood still?”


“You have not?” the lawyer asked.

“No; the God I believe in could have taken care of that,” the witness retorted.

“Don’t you know,” the lawyer asked, “it would have been converted into a molten mass of matter?”

In 1925, Clarence Darrow defended John Scopes, a schoolteacher charged in Dayton, Tenn., with teaching evolution, and thus violating the nation’s first law to prohibit children from learning science. The Scopes Monkey trial was a show trial cooked up in Robinson’s drugstore by businessmen and civic boosters hoping to strum up business for the local economy. The contest between Darrow and William Jennings Bryan, a failed presidential candidate whose later years were devoted to Florida land development and the spread of religious fundamentalism, became legendary, embossed in our public consciousness through “Inherit the Wind.”

Its legend endures not so much because of its cinematic preservation, but because its conflict is that of the American people. Eighty-five years later, we are still torn between faith and knowledge, with many struggling for coexistence. Even today, 40 percent of Americans say they believe humans were created by God in the last 10,000 years. Fortunately, children are now allowed to learn that the earth is roughly 4.5 billion years old and the apes from which we evolved have been upright for around 6 million years.

That’s how, on Jan. 25, 2010, I found myself watching as David Boies of New York-based Boies Schiller dismantled a man whose published thesis was in 19th century cabinetry, but whose professed expert field was the family, specifically the need for a father and a mother, as God intended. California voters had enshrined his beliefs into law.

The California trial to legalize same-sex marriage, Perry v. Schwarzenegger, was, in many ways, The State of Tennessee v. Scopes redux. One was a criminal trial and one civil, one rendered a conviction and the other an historic equal rights decision. But each, ultimately, showed the romanticism of the law, and its ability to transcend populist will rooted in moral and religious beliefs. Not incidentally, each involved a law coerced by fundamental religious forces as necessary to protect children but that, as the trial showed, had no basis in fact.

“God’s definition of marriage [would] be permanently erased in California” if we lost the battle for Proposition 8, Hak Shing William Tam testified to U.S. District Judge Vaughn Walker, who presided over the Perry trial in San Francisco federal court. Tam, one of five original proponents of Prop. 8 and the secretary of a coalition member,, was called as a hostile witness by the plaintiffs. He supported Prop. 8 because he feared same-sex marriage would erode traditional Asian family culture, increase child molestation and lead to the legalization of sex with children.

The campaign to pass Prop. 8 was nasty. Fearful of a rising tide of acceptance for gay civil rights in the courts and society, an umbrella group called Protect Marriage crocheted a coalition of churches and their offshoots, like the Traditional Family Coalition, Focus on the Family and the California Family Council, to convince California voters that gay marriage would diminish heterosexual marriages, require schools to teach same-sex marriage, and foster pedophilia. One of the most effective strategies of the Protect Marriage campaign was its reliance on support from church pulpits to spread its message. The power of churchgoers in passing Prop. 8 cannot be overstated: 84 percent of those who attended church weekly voted for it; 83 percent of those who never attend church voted against it.

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