Yesterday's closing arguments in
Perry vs. Schwarzenegger, the federal court challenge to California's Proposition 8, the voter initiative that took away the legal right of same-sex couples to marry in 2008, showed just how hollow the arguments against marriage equality are. Anti-equality defendants in the case again contradicted themselves and the testimony of their own witnesses.
I don't usually pull from
Queerty, because I think they tend to be a little too frivolous in their assessment of important issues, but I think they made some interesting points in their reporting of yesterday's courtroom precedings. For those keeping score, the legal team of David Boies and Theodore Olson represent our side (anti-Prop 8). Charles Cooper represents the pro-8 side:
The entire production was an embarrassment for the defense. That is an objective observation. And Brian Brown, president of the National Organization for Marriage (which was not a defendant in the case), accidentally confirmed as much in a live chat following Wednesday's closing arguments.
"Eliminating invidious restrictions on marriage strengthens the institution of marriage," Olson told the court.
As for Cooper, when he was asked by Walker, "Why is it that marriage has such a large public role? What is the purpose?," the defense attorney responded, "This relationship is crucial to the public interest.… Procreative sexual relations both are an enormous benefit to society and represent a very real threat to society’s interest." It again threw Cooper, and the defense team's core argument, down the rabbit hole. "Threat?," asked Walker. Cooper: "If children are born into the world without this stable, marital union … both of the parents that brought them into the world, then a host of very important, very negative social implications arise…. The purpose of marriage is to provide society’s approval to that sexual relationship and to the actual production of children."
The Advocate has this to report:
Speaking before the court, attorney Theodore B. Olson, who took on the suit along with David Boies, his rival in the 2000 U.S. Supreme Court case Bush v. Gore, said that antigay forces have argued that gay marriage “is too novel an experiment. That is the essence of their case to the end of the trial: They just don’t know whether same-sex marriage will harm the institution of marriage.”
Plaintiffs’ evidence presented in court, Olson said, proved otherwise: that same-sex couples marrying has no detrimental effect on heterosexuals marrying and raising children, and that the children of gay and lesbian couples fare better when their parents are able to marry. The latter point was made earlier this year under cross-examination by defense expert witness David Blankenhorn, whose testimony Olson referenced repeatedly during his closing arguments.
Walker’s wide-ranging questions to Olson during closing arguments included why domestic partnerships are inferior to marriage and whether the case would be different if California had never permitted same-sex marriage in the first place. Olson responded that domestic partnerships were, by definition, separate and unequal, lacking the symbolic import of marriage. He said that if his legal team were to present a similar case in a different state, the arguments would remain the same.
Defense attorney Charles Cooper spent much of his time before the court arguing that limiting marriage to opposite-sex couples was vital to maintaining “responsible procreation” in society. The state, he said, had a vested interest in “channeling” natural human impulses into the formation of enduring relationships suitable for raising children.
The San Francisco Chronical reports that the pro-8 side introduced a motion asking the court to effectively nullify the 18,000 same-sex marriages that took place during the brief window of opportunity between legal same-sex marriage and the passage of Prop 8, that took it away.
As the trial over California's prohibition on same-sex marriage enters its final stage today, the ban's sponsors are urging the judge to go a step further and revoke state recognition of the marriages of 18,000 gay and lesbian couples who wed before voters passed Proposition 8.
Such an order would honor "the expressed will of the people," backers of the November 2008 ballot measure said Tuesday in their final written filing before Chief U.S. District Judge Vaughn Walker.
Andrew Pugno, an attorney for Prop. 8's backers, said in an interview that the sponsors aren't asking Walker to nullify the 18,000 marriages, but only to rule that government agencies, courts and businesses no longer have to recognize the couples as married.
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