Prop 8 Trial: Evening Update

From Lisa Leff's Associated Press update:

[Olson] told Chief U.S. Judge Vaughn Walker that tradition or fears of harm to heterosexual unions were legally insufficient grounds to discriminate against gay couples.

So even if something harms marriage, we can't refrain from doing it by treating different kinds of voluntary associations differently - even though we do precisely that in so many other examples?

"The plaintiffs say there is no way to understand why anyone would support Proposition 8, would support the traditional definition of marriage, except through some irrational or dark motivation," Cooper said. "That is not just a slur on the 7 million Californians who supported Proposition 8. It's a slur on 70 of 108 judges who have upheld as rational the decision of voters and legislatures to preserve the traditional definition of marriage."

Thank you.

Cooper used his closing argument to try to persuade the judge that it was up to the plaintiffs to prove that voters lacked justification for [restoring the bride+groom requirement in state licensing of] marriage, even if they acted only out of fear of the unknown. He urged Walker to sidestep the "judicial tsunami they are asking you to sail into."

"The plaintiffs have to negate every conceivable rational basis that might explain the policy at issue," he said.

The burden of proof is on the plaintiffs.

Cooper answered that it would be impractical for governments to test couples to see if they were capable of having children before they marry or to require those that were capable to sign pledges that they would have children.

Right, and a violation of privacy and reproductive freedom.

During Olson's rebuttal, the judge seemed to wrestle with whether he should declare Proposition 8 unconstitutional when public opinion appears to be moving toward accepting same-sex marriage, which is legal in five states and the District of Columbia.

A premature judicial edict, Walker said, could harden public opinion in the same way as the high court's 1973 decision legalizing abortion.

I do think that is a problem, especially if it happens nationwide. However, I think that was something the complaintants should have considered before filing the lawsuit; I don’t think that should be the consideration of the judge in this case, just like I don't think it matters what someone's motivation was in the voting booth. What matters is – does the amendment violate the federal Constitution in a way that requires the court to act?

From Peter Henderson's Reuters update:

Walker subjected Cooper to a barrage of questions, turning the lawyer's closing arguments into a cross-examination about the purpose of marriage, the state's role, and whether gays deserve special court protection akin to racial minorities.

Cooper contended that the only way to invalidate Prop 8 was to prove there had been absolutely no good reason, or rational basis, for millions of Californians to back it.

Proving a universal negative is very difficult.

Some [marriage neutering] advocates opposed challenging the ban in federal court, fearing that even if they win this round, they are likely to lose in the conservative Supreme Court, setting back their agenda for years.

I pray SCOTUS defends marriage.

Opponents of the [the California Marriage Amendment] compare it to laws which outlawed interracial marriage in some state. Walker noted that the high court ruled on that questions only after many states began reversing their bans.

"Why are we not at that same tipping point here with respect to same-sex marriage?" he asked.

Because the ban on “interracial” marriage was a fleeting and scattered attempt to stop a time-honored worldwide practice in order to maintain segregation, while keeping the bride+groom requirement in state marriage licenses retains a historically universal, foundational thing that makes marriage marriage, and encourages integration.

From Maria L. La Ganga’s LATimes.com update:

Walker asked Cooper why marriages are public matters in the first place. (If a state marriage license is a fundamental right, why would a judge ask that question?)

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.”

The quashing of disapproval of illegitimacy and fornication has led to more people being willing to go along with the neutering marriage.

Olson’s viewpoint, Cooper said, “denies the good faith of Congress, of state legislature after state legislature and electorate after electorate.”

Right.

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.”

Calling judges and elected officials to the stand would have been difficult. Besides, the burden of proof was on the other side, and they failed to prove their case.