Who would have believed it would have come to this: Society's most basic structure on trial in a small Honolulu courtroom.

That is what has been happening in the Hawaii state circuit courtroom of Judge Kevin Chang. For the past two weeks, in the case Baehr v. Miike, a state lawyer has been engaged in a high-profile battle against attorneys for three same-sex couples. At stake is nothing less than the institution of marriage. The trial is expected to end Sept. 20.

Here's the background. In 1991 three Hawaii homosexual couples sued the state for not granting them marriage licences. The Hawaii State Supreme Court in 1993 ruled that the state could not discriminate against the couples on the basis of sex unless there was a "compelling state interest" for doing so.

This trial is the state's chance to present and justify its compelling interest.

Presenting the state's case has been Deputy Attorney General Rick Eichor. Opposing him have been the couples' attorneys, Evan Wolfson and Dan Foley. Supporting each side is a collection of "expert" witnesses. Judge Chang is not expected to decide the case until at least November.

A Tough Case

The case has been a difficult one for the state for several reasons.

First of all, the state has been put on the defensive by the Hawaii Supreme Court. As the Hawaii Catholic Conference said in a statement on the eve of this drama, the trial is "rigged against marriage" because Hawaii's marriage laws have already been found guilty of "sex discrimination."

The state's only escape hatch is to present a "compelling" argument that would somehow justify such "discrimination."

How odd that it should come to this.

Are the attorneys for the same-sex couples required to prove their bold claim that same-sex marriage is the equivalent of traditional marriage? No. The state has to justify its definition of marriage as a male-female institution.

But how? No one has ever had to do this before. There are several ways to try -- through moral arguments, legal arguments, or through social-scientific arguments, or by some combination of the above.

Trapped?

Keenly aware of the state's difficult task, the same-sex couples attorneys have laid a trap and the state seems to have fallen into it.

The trap has two parts.

First, pressure the state to avoid talking about morality by threatening to accuse it of "homophobia." This forces the state to try and "prove" its points only through science and statistics.

Second, argue that, regardless of what the state "proves," individual rights take priority anyway.

So far, the trap seems to have worked. To avoid being accused of "gay-bashing," the state has diligently avoided any discussion of morality. Instead, it has built its case around trying to prove two points: (1) that children do "best" in an intact home, with their mother and father, and (2) that no reliable studies exist which prove that children raised in a household of a same-sex couple do as well.

How does the state "prove" these points? By bringing in social-science experts.

It's strange enough to place the future of marriage in the hands of a trial court. It's even stranger when state turns the defense of marriage over to the "experts."

Last week in the trial we saw a parade of social-scientific "experts" telling us things we thought we already knew. Headlines announced the obvious: "Experts say children better off with both parents." Thanks to the experts' testimony, we can now confirm important facts like, "Growing up can be difficult for kids."

The state brought in a psychiatrist, demographer, social psychologist, and a therapist. Two had moral reservations about homosexuality, but told us those opinions were "irrelevant." The other two had no moral reservations at all, so their testimony was manipulated like putty in the hands of the opposing lawyers.

The Missing Link

The basic problem facing the state is simple: facts don't add up to principles.

For example, one of the state's witnesses stated that 98 percent of people who marry either have children or intend to. This is an interesting fact. But what follows from this statistic? The state says that encouraging procreation and child-rearing within a structure of rights and responsibilities is the purpose of marriage law. This conclusion may resonate with our instincts, but the statistic alone does not "prove" that marriage requires both sexes. The attorneys for the same-sex couples pointed this out quite effectively.

First, just because 98 percent of people think a certain way about a law, that does not make it the purpose of the law. The law may have a very different rationale behind it.

Second, this statistic does not necessarily prescribe a particular marriage law. It could be that 98 percent of the people are wrong, or the two percent minority harmless. Or it could simply be that the percentages don't matter anyway because each individual should have an equal opportunity to exercise marital rights and responsibilities. It all depends.

But what does it depend upon? It all depends upon the content of the law. It depends on the arguments that are made as to why a law is worth upholding. These are "normative" arguments -- arguments about what is good for society. These are moral arguments. No public policy argument makes sense -- including a statistical one -- without some moral framework.

A Moral Crusade

The same-sex marriage lawyers, by the way, have a very clear moral framework. And they are not shy about sharing it. Their highest value is the happiness and fulfillment of the individual. Their legal goal is to achieve individual equality in every area of life. If they have to forcibly redefine major social institutions in order to obtain this goal, they are ready to do it, whatever the cost.

Indeed, this is what Baehr v. Miike is all about. The crusaders for individual equality have a battering ram aimed at Hawaii's marriage law because they believe that law is an impediment to their happiness. They are poised to blow a hole in the door of marriage and let "alternatives" come flooding in.

To us this might seem like disruption or disorder, but to them this is a new birth of freedom. To them, this is a great moment in history, the dawn of a new age of possibilities for human self-fulfillment.

The difference between the state and its opponents helps explain why each draws such opposite conclusions from one piece of the state's evidence -- the absence of long-term studies about the effects of homosexual parenting. To the state, there should be no dramatic change in marriage law without reliable studies to back it up. To the couples' attorneys, the proper data can only come if they are free to marry each other.

For the state, evidence of infidelity or instability among same-sex couples is an argument against same-sex marriage. For the opposition, marriage is the solution to these problems. In fact, no amount of data will convince them they lack "the right to marry the person they love." What kind of data could possibly disprove that? After all, theirs is not an argument about statistics.

Nevertheless, during the first week of the trial, statistics were the focus of the state's case. Deputy attorney general Eichor said he was confident that the state had proved that the "optimal" setting for the raising of children was an intact home with a mother and father. He was also confident that Wolfson and Foley had not proved that same-sex couples could provide the same environment.

Eichor argues that because the state has a compelling interest in promoting the well-being of children, it cannot endorse same-sex marriage. Why? Because a child of a same-sex marriage, by definition, is separated from one or both of his or her parents. The state should not endorse any policy that would separate children from their parents.

Religious Bigotry

When the state apparently succeeded in calling into question the reliability of some studies about same-sex parenting, the same-sex attorneys shifted to a different, more overtly moral strategy. They began to challenge the credibility of the state's witnesses because of their religious beliefs!

In particular, they attacked David Eggebeen, the demographer from Penn State University, and Richard Williams, the social psychologist from Brigham Young University, for their beliefs that homosexuality was "sinful."

Apparently, as far as Wolfson and Foley were concerned, a (moral) belief that homosexuality is normal could not possibly affect the bias of a researcher. But the belief that homosexuality is morally problematic could only render these witnesses' testimony suspect.

Eichor lashed out at the opposition counsel for "classic religious bigotry." He called it "a low blow." It was.

What the People Know

And so the trial continues, and the battle of the experts goes on. Marriage has been taken away from the people and given to a collection of lawyers and social scientists. This situation should concern any citizen -- whatever his or her opinion of the issue -- but most especially Catholics.

Here in Hawaii, where more than 70 percent of the people oppose legalizing same-sex marriage, the Catholic Church, traditionally the "voice of the voiceless," must speak out on their behalf.

The church, however, does not impose, it proposes. It proposes that marriage should continue to be defined as a male-female institution by the law, not because this is Catholic dogma, but because this is what marriage truly is, in reality.

Marriage is not simply a pragmatic institution created by the state to accomplish some instrumental purpose. It is a unique sexual community that binds together the two sexes into a full image of humanity, and carries on the human project from generation to generation.

If this is not a "compelling state interest," what is?

The vast majority of Hawaii residents also consider this a fairly obvious state interest. They really don't need "experts" to tell them what they already know.