Closing Arguments in Prop. 8 Trial: the Recap
0The testiest and most laugh-enducing moments came in the closing arguments Wednesday, June 16, late afternoon. In the federal courtroom that had endured five hours of pontificating on both sides by celebrity attornies.
Charles Cooper, representing Prop 8 supporters, winded up arguing that the core function of marriage is to "channel" heterosexual couples into committed unions to raise the children born of their natural procreation. That alone was justification for denying same-sex couples the right to marry.
Chief Judge Vaughn Walker had spent most of the day alternately helping the dueling celebrity attorneys jump on soapboxes to make their point, then hoisting them on their own petards. Walker challenged him on the testimony of one of the only two witness the proponents of Prop 8 had produced.
In his testimony in the final days of the trail in January, author David Blankenhorn had testified, "We would be more American the day we allow same-sex marriage."
"What do yo make of that?" Walker asked Cooper. "More American? That was your own witness."
As he had throughout most of his presentation, Cooper hesitated and searched for a response.
"Mr. Blankenhorn was sharing a sentiment. He shares that with many of my fellow Americans," Cooper said. "But but he still believes that the threat of harm to a central and vital institution, marriage, is too daunting to run the risk . Otherwise Mr. Blankenhorn no doubt would favor the advent of same-sex marriage."
The threat alluded to repeatedly by Cooper was the idea that by allowing same-sex couples to marry, heterosexual couples who would otherwise marry and breed would not do so. How this would happen Cooper did not explain and he offered no evidence.
"There are millions of Americans who believe in equality for gay Americans, but draw the line of marriage. They believe this is profound ... it could be profound, could portend some social consequences that would not be good ones"
Noting that Cooper had repeatedly said he did not know what harm would result from lifting the ban, Walker asked Cooper, "In order to disable certain Americans, do you not have to show a benefit to others. And this 'I don't know' answer - is that enough?"
"If there's a rational basis for that distinction, then I say, yes," Cooper replied.
Throughout his two-hour presentation, Cooper, who is supporting a 2008 voter initiative that both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown refus to defend, referred to marriage as a social contract created for the benefit of the state rather than a benefit for the married individuals.
"Marriage serves a state purpose that is ubiquitous," Cooper told the court. "A purpose that is fundamentally vital to the survival of the human race." The core purpose of marriage, Cooper argued, was to "channel procreative relations into enduring relationships that will raise the progeny of that union. Marriage is controlled by the public for public interest."
"Do people get married for the benfit of the community?" Walker interjected, drawing laugter in the overflow courtroom. "What you think of is, 'I'm going to get a life partner that I can share my life with.'"
Cooper said the benefit to the state came out of the stability of offered to th children of that marriage. "Without the marital relationship," he said, "society would come to an end."
"Evidence shows overhwlemingly 'responsible procreation' is really at the heart of society's interest in regulating marriage," Cooper said. That was apparently too much for Walker, who stopped him once again.
Noting he hadn't cited any witness who had testified to that effect, he asked what evidence the proponents had shown to support the contention. "Your honor, you don't have to have evidence for this," he said.
He said saying that Prop 8 passed solely through profound prejudice was a "slur on judges and voters who have voted for traditional marriage. It denies the good faith of Congress and state legislature after state legislature and electorate after electorate."
Cooper returned to his argument that procreation is the core function of marriage. He said testimony to that fact was unnecessary because every book said so, "unless that book was written by one of their experts."
Then, acting out with a subtle sway and a slightly raised semi-falsetto, he mimed the witnesses for same-sex marriage. "'Procreation?'" he piped. "What does that have to do with marriage?'
"This issue has nothing to do with homosexuality. It wasn't even in the conversation until the movement for same-sex marriage."
Then was asked why the courts should not step in to overturn the ban just as they did in 1967 to end bans against interracial marriage laws. (Those laws were similarly defended by protests that changing them would destroy the core functions of marriage.) Cooper argued that those laws frustrated the goal of natural procreation in matrimony and that allowing same-sex marriage would frustrate efforts to "channel" people away from "irresponsible procreation."
It was one of several times he used the term "irresponsible procreation." "It's not a good term," he said, "but I can't think of a more serviceable one. But it is procreation that isn't bound by the kinds of obligation that were bound by the social norms a marital relationship is."
In his rebuttal for the challengers, Ted Olson dismissed the notion that same-sex marriage represented a radical departure from past law. "We're talking about fundamental civil rights," Olson said. "That's not breaking new ground."
Olson, who was President George W. Bush's solicitor general and successfully defended his winning the ballot in Florida in 2000, noted the number of witnesses the proponents decided not to call after they were grilled in depositions taken by Olson's colleague David Boies.
"You can't come in here and defend by saying, 'We don;t know, we don't have to prove anything, we don't have to have any evidence,'" he pointed out. "'Channeling function.' That's a new one for me today. They have not provided one bit of evidence that we are asking for anything that would damage this 'channeling function.'
He challenged Cooper's notion that "you have to accept my definition, and then it will change the definition. We don't accept his definition," he added. "Mr. Blankenhorn said he is not an expert and we accept that."
Olson then played video of Blankenhorn's testimony in which he said, "studies show adoptive parents, because of the screening process in some cases outstrip biological parents in caring for their children."
As to a question on whether a judge should wait for a time to be ripe before intervening on a sensitive social issue, Olson replied, "Yes. But that that does not justify a judge to say in a court, 'I really need for the polls to be just a few points higher.' There will never be a case with a more thorough presentation of the evidence."
Olson also pointed out that Cooper had considered procreation as a compelling reason to pass Prop 8 in the official supporting arguments distributed to voters. "I looked at it and I couldn't find the word 'procreation,'" he said. "I did find the words 'activist judges' in there. I did find the words 'protect our children.' 'Protect our children' is in there about 5 or 6 times. To 'protect' them from finding out gay marriage is OK. That gay people are OK."
Boies and Olson, who led the legal challenge filed on behalf of a Northern California lesbian couple, Kris Perry and Sandy Stier, and Southern California gay couple Paul Katami and Jeff Zarrillo, had been adversaries in the Supreme Court battle over the Florida presidential elections results in 2000 that ultimately led to George W. Bush's triumph over Al Gore.
The roots of the case trace back to 2004, when San Francisco Gavin Newsom decided to enter California into the same-sex marriage debate after the judicial decision recognizing marriage equality in Massachusetts triggered a conservative backlash. In February of that year, Newsom ordered county offices to begin issuing marriage licenses to same-sex couples.
Several thousand couples were married in San Francisco in the ensuing weeks before the state courts ordered a halt and invalidated all of the same-sex marriages that had been performed.
A state constitutional challenge to allow same-sex marriage then worked its way through the state judiciary, resulting in a landmark state Supreme Court decision in the spring of 2008 that declared marriage a fundamental constitutional right, ruled unconstitutional the state's explicit ban on same-sex marriage, and made marriage equality a reality.
Even as the case was being settled, marriage equality opponents were drafting Proposition 9, a ballot initiative to amend the state Constitution to limit state recognition of marriage to being between one man and one woman.
It is expected that regardless how Walker rules, this case will wind up in Supreme Court.