August 9, 2010

The president of a conservative Christian group who argued that the judge that who struck down California's controversial Proposition 8 should have recused himself because he might be gay may have met his match.

Family Research Council President Tony Perkins was blasted Sunday by David Boies, one of the lawyers who successfully argued that Prop 8 was unconsitutional.

Perkins maintains that Judge Vaughn Walker should have recused himself because the San Francisco Chronicle reported he was gay. "I think what you have is one judge who thinks he knows -- and a district level judge and an openly homosexual judge at that who says he knows better than not only 7 million voters in California but voters in 30 states across the nation that have passed marriage amendments," Perkins told CBS' John Dickerson. "This is far from over."

"You mentioned this claim that he's openly homosexual," said Dickerson. "I'm not sure if that's the case. Whether he is or isn't, what bearing does it have on the case?"

"Well, that according to the San Francisco Chronicle," replied Perkins. "That he is openly homosexual. One of two federal judges. I think, you know, had this guy been a, say, an evangelical preacher in his past there would have been cries for him to step down from this case. I do think it has a bearing on the case but this is not without precedent."

"He ignored a lot of the social science in his opinion," continued Perkins. "But in Nebraska in 2005 there was a similar ruling by another federal district level judge. It was overturned in the 8th circuit unanimously. So there is certainly not only based upon the social empirical data that's out there but on the legal basis this is a flawed decision. And, as I said, it's far from over."

Boies was cool as he explained Perkins' facts wouldn't hold up in court.

"Well, it's easy to sit around and debate and throw around opinions that appeals to people's fear and prejudice," said Boies. "Site studies that either don't exist or don't say what you say they do. In a court of law you've got to come in and you've got to support those opinions. You've got to stand up under oath and cross-examination."

"What we saw at trial is that it's very easy for the people who want to deprive gays and lesbian citizens of the right to vote to make all sorts of statements and campaign literature or in debates where they can't be cross-examined but when they come into court and they have to support those opinions and they have to defend those opinions under oath and cross-examination, those opinions just melt away."

"And that's what happened here. There simply wasn't any evidence, there weren't any of those studies. There weren't any empirical study. That's just made up. That's junk science. It's easy to say that on television but a witness stand is a lonely place to lie. When you come into court you can't do that. That's what we proved. We put fear and prejudice on trial, and fear and prejudice lost," said Boies.

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