Inside the Trial That Overturned California's Same-Sex Marriage Ban

These are some of the ideas promoted by Louisiana Rep. Mike Johnson, the man Republicans unanimously elected speaker of the House of Representatives on Oct. 25, a position second-in-line for the presidency after the vice president:

Marriage between two men or two women is not what God intended, and only traditional heterosexual marriage can lead to real happiness.

Homosexuality is a lifestyle choice, not an immutable characteristic.

Children are harmed by not having one mother and one father.

States should be allowed to criminalize consensual sex between two men as a way to slow the spread of sexually transmitted diseases.

“Experts project that homosexual marriage is the dark harbinger of chaos and sexual anarchy,” Johnson wrote in 2004 in an opinion article in The Times of Shreveport, Louisiana.

Asked recently by Fox News for his views on homosexuality, Johnson said simply, “Go pick up a Bible. That’s what I believe and so I make no apologies for it.”

“That’s why we call him MAGA Mike,” said openly gay Congressman Robert Garcia (D-Long Beach). “He is literally one of the most extreme voices in his party as it relates to LGBTQ rights. And so his record is really troubling.”

Many of the ideas espoused by Johnson also served as the ideological basis of Proposition 8, the 2008 ballot measure that banned same-sex marriage in California until it was struck down in 2010.

Such constitutional amendments, Johnson said, “are the people’s only way to prevent same-sex marriage as demanded by activist courts.”

The rise of Johnson to the speakership coincides with renewed ultraconservative activism under the guise of keeping public policy from getting in between parents and their children.

At school board meetings, city councils and state legislatures around the country — including in the Bay Area — conservative activists led by organizations such as Moms for Liberty are using “parental rights” as a cry to stir up anger against policies supporting transgender youth and their families.

The notion that children need protection from predatory queer people or their allies is nothing new. In the 1970s, former beauty pageant winner Anita Bryant used it to roll back gay rights ordinances in Florida. Here in California in 1978, it was the misguided rationale behind the so-called Briggs Initiative, which sought to prevent openly gay and lesbian people from teaching in K-12 schools. Voters soundly defeated it.

But that was not the case 15 years ago, on Nov. 4, 2008 — when Proposition 8 passed. It was a night when Californians overwhelmingly voted to elect Barack Obama president while simultaneously taking away the right of same-sex couples to marry. For LGBTQ+ voters, it was political whiplash — euphoria and despair in one night.

Proposition 8 passed with 52% of the vote, eliminating a right that had been granted to gay and lesbian couples by the California Supreme Court less than six months earlier.

Anti-gay tropes on trial

As it happens, the ideas embraced by Speaker Johnson and supporters of Proposition 8 were all put on trial in 2010 after two same-sex couples sued in federal court to overturn the measure when they were denied marriage licenses.

That Proposition 8 trial — which included expert witnesses testifying under oath about anti-gay tropes, theories and political arguments — resulted in Proposition 8 being struck down in 2010 when the federal trial judge deemed the evidence against same-sex marriage to be uncompelling and ruled that the law violated the Due Process and Equal Protection clauses of the 14th Amendment to the U.S. Constitution. The Ninth Circuit Court of Appeals upheld the ruling, and the legal battle ended when the U.S. Supreme Court declined to take up a final appeal in 2013.

For more than a decade after it ended, videotapes of the trial were under seal until KQED fought a long legal battle to make them available to the public. The U.S. Supreme Court allowed them to be unsealed in October 2022.

After the videotapes were released, KQED invited the four Proposition 8 plaintiffs — Kris Perry and Sandy Stier along with Paul Katami and Jeffrey Zarrillo — to view them for the first time and talk about the trial, its aftermath and its significance today.

‘The lie won people over, and the lie was based on fear’

One thing that stood out is that the ‘Yes on 8’ messages still echo today.

Leaders in the Catholic and Mormon Churches promoted the campaign to ban same-sex marriages in California. Among the ‘Yes on 8’ slogans: “Protect the Children.”

“The sad part of it is, that campaign worked because the convenience of the lie won people over, and the lie was based on fear,” recalls Paul Katami. “And that fear included children. So I would never say it was a brilliant tactic, but it was an evil tactic.”

Watch a video featuring Paul Katami and Jeffrey Zarrillo reflecting on their experiences, produced by KQED’s Carlos Cabrera-Lomelí.

Attorney Thomas R. Burke led KQED’s successful legal battle to unseal the tapes. He said the trial tested the homophobic, hateful arguments promoted by Proposition 8 supporters. The witnesses, the withering cross-examinations and the poignant testimony are all caught on video that is now available to anyone who wants to watch.

“The evidence didn’t support you,” Burke said, referring to ‘Yes on 8’ defenders. “You had great lawyers arguing your cause, and you didn’t win. And if people thought you should have won, they can see and judge for themselves. If you didn’t have that recorded, that couldn’t happen.”

The historic trial resulted in a landmark decision when Judge Vaughn Walker struck down the ballot measure, ruling it violated the U.S. Constitution — but it was hardly a foregone conclusion at the start.

“I remember feeling very anxious and scared, honestly, not knowing how any of it would turn out,” lead plaintiff Kris Perry said after viewing trial clips at KQED. “People were really, you know, counting on us to deliver. And there was a lot of pressure.”

Perry’s wife, Sandy Stier, recalls what seemed like days and days of preparation before going on the stand. She remembers worrying about how the trial might affect their lives, “not only for me, what it might be like for my kids, for my parents, my siblings and my community. And so it was very, very anxious going into court that day, not knowing.”

Zarrillo and Katami were the first witnesses called to testify.

“I had so many fears going into the trial,” Katami said. “I was not confident because this was uncharted territory for both of us as human beings.”

“I said to Paul at one point, ‘Even if we lose, we can go to our graves knowing that we didn’t stand for being treated as second-class citizens,’” Zarrillo said. “We tried to do something about it.”

The trial was originally going to be televised on closed circuit TV via YouTube until Proposition 8 attorneys objected, and the U.S. Supreme Court intervened to prevent it. But Judge Walker recorded the trial anyway, he said, for his personal use in writing the decision.

On the stand, Katami was asked by one of their attorneys, David Boies, what the big deal was about not being able to marry when they had the option of a domestic partnership.

“The big deal is it’s creating a separate category for us. And that’s a major deal because it makes you into a second-, third-  … and fourth-class citizen,” Katami said that day in January 2010.

Concerns over renewed efforts to make LGBTQ+ people second-class citizens were shared by none other than U.S. Supreme Court Justice Sonia Sotomayor this summer, following the high court’s ruling siding with a Christian graphic artist who refused to work with same-sex couples. Sotomayor wrote in her dissent that the decision’s effect was to “mark gays and lesbians for second-class status” and that the ruling opened the door to further discrimination.

Reflecting on his testimony, Katami said until the Proposition 8 trial, many heterosexuals didn’t know the hundreds of rights automatically afforded straight couples — but denied to LGBTQ people.

“And if you don’t have that protection because marriage allows that protection, there’s a bright spotlight that shines down on those rights when you don’t have them,” Katami says.

Viewing the trial tapes, Zarrillo noted that “when you’re on the stand like that, you have to really figure out, how do I answer this question [in a way] that is not going to hurt our cause?” he said.

When Perry was asked in court to describe her relationship with Stier, whom she met while both were students at UC Santa Cruz, Perry testified, “I met Sandy thinking she was maybe the sparkliest person I ever met. And I wanted to be her friend.”

On the stand, Stier testified that after meeting Perry, she “ really felt like the thunderbolt of change for me.” Unlike Perry, Stier wasn’t an out lesbian at the time.

“I had moved to California, got married to a man, had two kids, and knew that something wasn’t working for me,” Stier told KQED.

Watch a video featuring Kris Perry and Sandy Stier reflecting on their experiences, produced by KQED’s Carlos Cabrera-Lomelí.

The trial tapes reveal the humanity of the issue, ably presented by the four plaintiffs, Judge Walker said recently.

“Both of the couples were very able witnesses — very attractive witnesses… So, we’re talking about matters that are intensely personal and important to them. That’s pretty compelling testimony under any circumstances,” Walker told KQED.

But the audible and visible emotion of their testimony was out of view until the trial tapes were unsealed.

Of course, unlike TV shows, where every courtroom scene is riveting and entertaining, real-life trials are mostly “hours and hours of tedium broken episodically by sometimes emotions (or) events of great interest. But they are few and far between,” Walker said.

Still, the retired judge said the tapes will be helpful in law schools to show students how courts deal with “a social issue or a constitutional issue of widespread importance.”

After Proposition 8 was struck down, both couples soon married and remain so today. But LGBTQ people are still under attack by people hoping to use them as political fodder on behalf of conservative causes.

“I think that is incredibly dangerous,” transgender rights activist Honey Mahogany said. “These are tropes that have always been a part of emotionally manipulating people to advantage a certain political group or cause, right? They’re not based in fact.”

Mahogany, who also chairs the San Francisco Democratic Central Committee, said the release of the trial tapes helps to humanize issues and the plaintiffs.

“Seeing what happened during the trial behind the scenes is really important because it helps expose the truth,” Mahogany said. “It helps expose the fact that this is just about two people loving each other, wanting to cement their relationship, wanting to protect each other … and their children.”

Mahogany said that given the risks of failure, what the Proposition 8 plaintiffs did was “incredibly important and brave.”

She hopes their example will encourage others to come forward today to humanize LGBTQ issues. “We can learn from history. We can, you know, find our champions and also our storytellers to help us tell our stories,” Mahogany said.

With the videotapes now accessible online, their stories told under oath can be seen by anyone who wishes to watch.

“They fought for a decade that this would not be seen,” Burke said. “And I think there’s a reason for that,” Burke said, implying their arguments simply didn’t hold up under legal scrutiny.

Although Walker’s ruling striking down Proposition 8 was upheld by the U.S. Supreme Court, the measure’s wording remains in the California Constitution. But voters will have the chance to change that next November. The State Legislature placed a measure on the fall 2024 ballot that removes that invalidated language and replaces it with an affirmation of the right of all couples to marry in California.

A version of this story was originally published on Nov. 2.