So It Ends: Closing Arguments in Prop. 8 Trial
For the anti-marriage, pro-8 lawyers, the argument is about procreation (to read liveblogging of the closing arguments, go here). Marriage, lawyer Charles Cooper argued for the defense, is "fundamental to the very existence and survival of the human race." Heterosexual marriage, he continued, "has been at the heart of society since the beginning of time. It promotes the ideal opportunity for a child to be raised by a mother and father in a family held together by the legal spirit bonds of marriage and while divorce and death could disrupt the ideal as a society we should put the benefit of children first and that is traditional marriage."
This is a center-point of the Prop. 8 legal claim—but for a central argument it played, as Judge Walker pointed out on Wednesday, remarkably little role in either the Prop. 8 campaign or the subsequent legal battle. "Where does it show that the procreative function was a rationale for voters in upholding Prop. 8?" asked Judge Walker. "Where is that in the evidence?" Responded Cooper, "The 'Yes on 8' position specifically references that marriage is a fundamental relationship in society and in the voter information guide itself." Hardly a braying assertion of procreation's importance.
As to the trial itself, Judge Walker seemed frustrated on Wednesday that the pro-Prop. 8 defense had not presented more evidence on behalf of its claims. Despite the bevy of social scientists, psychologists and experts on marriage who provided testimony, Cooper called only one witness qualified to speak to the procreation argument. "Why did you present but one witness on this subject?" Walker asked Cooper. "What testimony in this case supports the proposition?" Replied Cooper, "You don't have to have evidence of this." But one of the two couples bringing the lawsuit are Kris Perry and Sandy Stier, a lesbian family from Berkeley, Ca., who are raising four children. Their experience alone would counter the self-evidence of Cooper's argument that gay marriage would be the end of couples' child-rearing.
Attorney Ted Olson on the anti-8 side of the case instead put Cooper's arguments into the perspective of the long battle for civil rights. "You have to have a reason," he said of denying same-sex couples marriage rights. " 'I don't know' and 'I don't have any evidence' doesn't cut it." He cited Brown v. Board of Education (which ended school segregation) and Loving v. Texas (which legalized interracial marriage) as landmark civil rights cases on the order of this trial. "Proposition 8 discriminates on the basis of sex the same as Virginia law discriminated on the basis of race," Olson said.
Judge Walker was clearly concerned about the impact of a federal court intervening at this particular point in history. "When does it become right for a court to weigh in on these issues?" Walker asked Olson, expressing concern about the judiciary's intervening in a developing civil rights discussion, thus inducing a backlash. "I don't think that is justification for waiting any longer," said Olson. "There will never be a case with so much evidence." Ultimately, Olson said, "Some judge is going to have to decide what we've asked you to decide." Cooper, on the other side of the argument, put the matter into the same perspective: the judge sits on a historic choice. "It is a judicial tsunami they are asking you to sail into," Cooper warned Walker.
It may only be a couple of weeks before Judge Walker hands down a decision, and we learn whether he has fled the tsunami, or triggered it. Either way, the case is expected eventually to reach the U.S. Supreme Court, where it faces a highly uncertain fate.