Prop-8 Arguments Finished

There has been some important testimony out in California this week. Let me give you the LA Times summary:

Closing arguments concluded Wednesday afternoon in the Proposition 8 trial with more pointed questions from U.S. District Judge Vaughn R. Walker, who is presiding over the landmark proceedings to determine the constitutionality of California's ban on gay marriage.

When court resumed after the lunch break, Charles Cooper, attorney for proponents of the measure, told Walker that the "marital relationship is fundamental to the existence and survival of the race. Without the marital relationship, society would come to an end." That relationship, he said, is between a man and a woman and its main focus is procreation and "channeling" the sexual behavior of heterosexuals into "stable, marital unions."

Walker continually pressed the sometimes flustered Cooper on just what marriage means and why the state should care about it. Why does the state regulate marriage, he asked. Do people get married to benefit the community? Why doesn't the state just consider it a private contract?

Walker: "Why is it that marriage has such a large public role? What is the purpose?"

Cooper: "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."

Walker: "Threat?"

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."

Walker: "But the state doesn't withhold marriage from people who cannot have children."

Cooper: "It does not." Walker: "Are you saying the state should?"

Cooper took Theodore Olson, attorney for the gay and lesbian couples who filed suit against Proposition 8, to task for claiming that Californians could support the ban on same-sex marriage only "through irrational or dark motive, some animus, some kind of bigotry." He called Olson's characterization a "slur" on the millions of Americans who voted for the ballot measure in 2008 and "a slur on 70 of 108 judges who have upheld as rational the decisions by voters and legislators to preserve the traditional definition of marriage."

Olson's viewpoint, Cooper said, "denies the good faith of Congress, of state legislature after state legislature and electorate after electorate." To which Walker responded: "If you have 7 million Californians, 70 judges and this long history, why in this case did you present but one witness? ... You had a lot to choose from. One witness, and it was fair to say his testimony was equivocal."

A ruling in the case is expected sometime this summer. Prop. 8 trial: Closing arguments end as judge presses both sides

I wouldn't make any bets on how the judge will decide this one, but I think our side ended up looking good compared to the other guys. It does not appear that the Prop-8 supporters had any evidence to support their contentions, and they only called one witness after two weeks of testimony by the other side. Cooper seemed to think it was obvious that the insitution of marriage requires opposite sexes, and that since large numbers of people agree with him the judge should allow the prohibition of same-sex marriages to stand. The judge did not seem impressed with the obviousness of it, but on the other hand he was not entirely friendly to the other side, either.

Everybody expects this case to end up in the Supreme Court. Can't say I'm optimistic it will get a fair hearing there. Hey, did you realize that Clarence Thomas has not asked a single question during oral arguments in four years? He has heard nearly 250 of the country's most important cases without ever questioning anything. The Supreme Court has become a conservative anchor for US legal decisions, you can figure there won't be any surprises if the Proposition 8 challenge makes it to that court.