It's in the Judge's Hands Now
Upon taking the bench before a packed San Francisco federal courtroom on Wednesday, U.S. district court judge Vaughn R. Walker said that he wished the Proposition 8 trial would have moved faster than the six months it has taken to arrive at closing arguments.
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.
"We have demonstrated during this trial that [Prop. 8] causes grave, permanent, irreparable, and totally unnecessary harm," Olson said. "We have improved the institution of marriage when we allowed interracial couples to get married. We have improved the institution of marriage when we allowed women to be equal partners in the martial relationship ... And we will improve the institution of marriage ... when we eliminate this terrible stigma."
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.
Cooper’s emphasis on procreation as a fundamental reason to prohibit same-sex couples from marrying was, in fact, ultimately the winning strategy, NOM’s Maggie Gallagher asserted. “It’s the reason why marriage is that of husband and wife. And every court has upheld the right of the voters to define marriage in this way, as seeing responsible procreation as the primary justification,” Gallagher told The Advocate.
Walker also asked Cooper whether the defense believes that the marriages of the approximately 18,000 same-sex couples who wed in California before voters passed Prop. 8 should be invalidated. Cooper replied that he had no issue with the existing marriages, unless they present to the state a constitutional “irreconcilable conflict.”
“We have never disputed that gays and lesbians have been victims of a long and shameful history of discrimination,” Cooper said. “But the fact of a history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny.”
Following court proceedings, defense attorneys denied claims that they had in effect boycotted the trial by presenting a dearth of expert witness testimony supporting their case. “The central overriding question is whether the issue before the court, which was before the people of California, should be decided by [Walker] or whether it should be decided by the people themselves,” said Andy Pugno, general counsel for Yes on 8.
Gallagher did not predict a ruling in gay-marriage opponents’ favor, regardless of the arguments presented by the defense. “Today, as throughout this trial, Judge Walker has convinced me that he will rule for same-sex marriage, probably on the grounds that it’s a fundamental right and that it’s gender discrimination subject to heightened scrutiny,” she said. NOM is not a party to the litigation, though it is helping to raise money for the defense as the case moves forward, she said.
Appearing at a post-trial press conference with plaintiffs Kris Perry, Sandy Stier, Jeff Zarrillo, and Paul Katami, David Boies congratulated Olson on the day’s proceedings, calling his arguments “the best I’ve heard in 45 years of practice.”