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Perry v. Schwarzenegger: closing arguments

Timothy Kincaid

June 16th, 2010

For today’s summary, I relied on liveblogging by FiredogLake, Equality California, and the San Jose Mercury News.

Today Judge Walker Vaughn heard closing testimony, a very active process in which the judge asked a great many questions. From an information perspective this was basically a recap of the case, with each side seeking to present their evidence in the best light. But it was the opportunity for the judge to get each side to clarify and flesh out exactly what legal theory they were using for their argument.

First up: Ted Olson, the conservative icon who surprised anti-gay activists by declaring equality to be a conservative principle and by leading the case to reverse Proposition 8.

Olson talked about the various perspectives of those who are involved in the fight. He pointed out that the supporters of Prop 8 had one story during the campaign (protect the children) and an entirely other one during the case (deinstitutionalization of marriage). But for the plaintiffs, this is the most important choice they can make as an adult: who to marry.

Olson talked about how other relationships were not the same as marriage and had not been considered the same in American history. Slaves could enter informal relationships, but when freed and able to marry they found that the “marriage covenant is the foundation of all our rights.” When Loving v Virginia overturned racial restrictions, it removed a stigma.

He discussed how marriage equality makes gay families and their kids “okay”. How it reduces the burden on gay families, but also make America more American (according to the defense’s witness, David Blankenhorn).

Olson told the judge that his decision to allow a full trial on the merits of the proposition has provided evidence and been an education. He compared it to Brown v. Board of Education (the 1954 case which tossed out the “separate but equal” racially discriminatory education system). He lays out the long string of cases in which the SCOTUS has moved towards greater equality, at times overturning previous decisions.

And he laid out the case’s strongest argument: this is government imposed stigma placed in the state constitution. Further, the California Supreme Court did not “create a window” of rights. The right to marry the person of one’s choice had always existed, the CA Court simply recognized that right. The SCOTUS has found the right to marriage to be a fundamental right, and in Lawrence they found that homosexual behavior was a constitutional intimacy right. Applying each case atop the other, Olson said:

It can’t be constitutional to take away a constitutional right because a person engaged in a constitutionally protected behavior.

Olson argued for strict scrutiny, but said the case fails on any scrutiny. There is no state interest and “Because I say so” is not a reason for continued discrimination.

The voters passed Proposition 8 so as to say that same-sex marriage is not okay, to say that gay people are not okay. That is malice. It is not a constitutionally valid reason for denying rights to a class of people. Proposition cannot be found to be supportable in this case by any good valid reason, because no good valid reason was presented to support it.

And that concluded Olson’s closing statements.

Therese Stewart, on behalf of the City of San Francisco, spoke about the costs to the city: institutionalized discrimination increases mental health cost, the policing costs associated with increased hate crimes, costs for addressing bullying, the cost of lost tourism. But it would also cost the city its ability to treat all of its citizens equally.

The Governor and the Attorney General formally waived their right to defend Proposition 8 with closing arguments.

The judge then made an interesting observation. It seems that in most counties when you apply for a marriage license, there is no requirement on the form itself that you be opposite-sex. That really, from an administrative perspective, the decision to issue a license is up to the county clerk. The same is true for the issuance of domestic partnerships to heterosexual couples under the age of 62.

I’m not sure where the judge was going with that. But then they broke for lunch.

After lunch, Charles Cooper presented his closing arguments in defense of Proposition 8.

He argued that restricting marriage to the opposite sex was fundamental to the existence and survival of the human race. The purpose of marriage is for procreation. And without state-defined marriage, society would come to an end.

The judge pointed out that because the state has no requirement that married couples procreate – or even have the capacity or intention of doing so – that there must be some other purpose for marriage. Cooper rhetorically pondered the ways a state might go about insisting on procreation, suggesting that they were ludicrous, but the judge agreed that for his argument to be logical that these would be reasonable steps. None of them are required.

Cooper revised the purpose of marriage to be a that of increasing the likelihood that natural procreation be within the confines of marriage. Walker countered that marriage obligations extend far beyond the control of sexual behaviors.

What happened next was the defense’s worst nightmare. The judge asked Cooper for the evidence to support his premise. Cooper tried to quote various sources but the judge pointed out that none of these sources testified, that defense had only brought one witness “and I think it’s safe to say his testimony was equivocal.”

Cooper was left replying that there was no need for a witness, that there was no need for evidence, that it was obvious. The judge was not much impressed with the “I ain’t need no evidence” defense.

Cooper argued that up until 30 years ago no one considered same-sex marriage. Therefore it just must automatically be tied to procreation. But now gay people want to marry.

The judge then asked if these changes in the past 30 years might not, as was the case with Loving, be at a tipping point at which the purpose for marriage has changed in the public conscience. Cooper struggled to explain how racist restrictions differ because they had no basis in historical definitions [he may want to read more history], that miscegenation laws created illegitimate children [he may not actually have been listening to the words he was saying].

Cooper argued that the sole distinction – the sole criteria for legitimate marriage – was the ability to procreate “normally”. The judge failed to see how assisted fertility could not also be applied.

So Cooper shifted gears again and declared that the state had a right to “strengthen social norms”. He discussed children born out of wedlock and that restricting marriage to heterosexual couples was a way to protect against this increasing trend.

[So Cooper has within this testimony declared the purpose of marriage to be encouraging procreation so as to further the survival of the species; he then changed his definition to be channeling possible procreation into marriage; and then changed it again into discouraging irresponsible procreation, almost the opposite of his original contention]

Cooper next argued that this case should be subjected only to a rational basis standard. And because of this, he need not prove that the voters had any particular intention to discourage irresponsible procreation (or whatever his current purpose for marriage might be) but only that it is conceivable that they could have used this logic had they so wished. Not that they did, but that a rational person could.

This vein of questioning ended and Cooper clarified his request to have the 18,000 marriage invalidated. He’s said that if this caused irreconcilable differences, it would be better to toss out 18,000 marriages than to disregard the will of the voters. But otherwise, the defendants are fine with them continuing to be recognized as grandfathered-in.

The judge asked Cooper about whether gender (as opposed to incarceration, responsibility or ability to procreate) was the sole exception to marriage being a fundamental right. Cooper said that gender is the definitional feature of marriage.

The judge then asks if because Cooper claims that sexual orientation is only a social construct, then how it differs from gender. And the argument began it’s descent down the ex-gay path.

Cooper claimed that sexual orientation was not immutable and was not an “accident of birth”, i.e. no one is born gay. [I've long believed that the immutability of sexual orientation is the basis in which our eventual civil equality will be found.] They discussed how that while religion is not immutable, its rights are found in the First Amendment, not through heightened scrutiny.

Cooper insisted as “plainly right” that sexual orientation is not an immutable trait. He declared that 2/3rds of women change their orientation [a gross misstatement of the facts].

He further insisted that gays are not politically powerless. When the judge quoted a litany of discrimination, Cooper agreed that gays have been victims of discrimination, but insisted that history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny.

The arguments took a veering to discuss whether Blankenhorn is a qualified witness. To support this, Cooper had nothing additional to add.

(to be continued… check back later)

Comments

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NARNC60AC
June 16th, 2010 | LINK

this judge seems to have gotten it: “It seems that in most counties when you apply for a marriage license, there is no requirement on the form itself that you be opposite-sex.”
just taking THAT single sentence means that all the arguments the religious proponents of 8 had are just a serious case of hot air [& a very vile case]

Dustin
June 16th, 2010 | LINK

Cooper needed a 15 minute break ’cause he couldn’t answer the judge’s questions…can anyone say “lol”?

Ray
June 16th, 2010 | LINK

Barefoot Maggie is what Maggie Gallagher will be called from now on. She had to be disciplined by the baliff today for propping her ***bare feet** up on the bench in the courtroom!!!!!!!!!!!!!

Mark F.
June 16th, 2010 | LINK

Come on, I could do better than this guy, and I never went to law school. I hope they can do better when this when the case goes to appeal.

The only good argument that they really have is that the “rational basis” test can be considered so broadly that just about any law can pass it. Or that the test itself is invalid as a matter of Constitutional law despite precedent.

TomTallis
June 16th, 2010 | LINK

“[So Cooper has within this testimony declared the purpose of marriage to be encouraging procreation so as to further the survival of the species; he then changed his definition to be channeling possible procreation into marriage; and then changed it again into discouraging irresponsible procreation, almost the opposite of his original contention]”

I wonder if he even realized what he had done. I do see that Cooper skipped the post-festivities press conference.

http://prop8trialtracker.com/2010/06/16/afer-press-conference/

Candace
June 16th, 2010 | LINK

I swear it’s almost like they’re throwing this on purpose… it doesn’t seem possible for lawyers and witnesses do do such a bad job. Are they hoping to get a case in front of a conservative-leaning SCOTUS before the makeup of the Court changes?

Mark F.
June 16th, 2010 | LINK

There are already 5 likely no votes on SCOTUS:

Thomas
Scalia
Alito
Roberts
Kagan (has said it is not a Constitutional right already)

The other 4 votes are iffy. If we get those and Kagan changes her mind…

John D
June 16th, 2010 | LINK

Mark F.:

I read SCOTUS differently. Okay, three obvious finding for the defendants:

Scalia
Thomas
Alito

Despite Kagan’s comment, I’m still putting her in the plaintiff’s column, along with
Ginsberg
Breyer
Sotomayor

Kennedy is hard to guess. I’m guessing that careful court watchers are putting him on the plaintiff’s side.

That leaves Roberts. The guy who did pro bono work for the gay rights side in Romer. I wouldn’t want to put a bet on this, but there is that possibility that Roberts is going to find for us.

Lynn David
June 17th, 2010 | LINK

If you think the Catholic Roberts would vote in favor of Perry, you’re way off line.

I see bad news if this goes to the SCOTUS either after a win or loss for us – that is, Perry. I think this is a case which should not have attempted. Furthermore, I am hoping that we lose this case and lose it big. I am hoping that the judge gives the defenders of Prop H8 exactly what they want – uphold the vote, the amendment, and not just deny any rights under California law to the circa 18,000 married gay and lesbian couples, but forcibly divorce them or simply state their marriages are null and void and maybe even tell the California government to return their fees for filing.

Why?? To create such an outrage in California, such a backlash so as to pave the way for a new proposition to repeal the California marriage amendment. Sometimes a strategic loss can turn into an ultimate win. I am not saying that it can happen that way, but with public opinion seemingly changing every month in our favor, I think it may be the better move…. except that the ADF has been too dang dumb!

Priya Lynn
June 17th, 2010 | LINK

Lynn said “I think this is a case which should not have attempted.”

I agree.

Lynn said “Furthermore, I am hoping that we lose this case and lose it big.”.

I was with you up until that point, then you competely lost me. Having your wish granted can’t work out to be a good thing for the cause.

Timothy Kincaid
June 17th, 2010 | LINK

Although it is tempting for me to try and pre-guess the outcome based on our assumptions about the justices, I am sure that Ted Olson and David Boies and their large and prestigious law firms have spent vast amounts of time scouring previous votes and have a better sense of the individual temperments of the justices than I ever could imagine.

They believe that they will win. And they are damn good at what they do.

Jason D
June 17th, 2010 | LINK

Lynn said “I think this is a case which should not have attempted.”

History is littered with civil rights victories in which this very sentence, almost verbatim, was said—and often.

MLK has a speech or two about how he was told to wait, that it was too soon, that he should back off, stop, pause.

Considering how woefully bad the defendants have been a presenting coherent, logical, legal arguments, I’d say there was no better time, and no better case to move on this one.

Priya Lynn
June 17th, 2010 | LINK

I’ve got $100 that says when this case goes to the American supreme court its a loss for gay rights.

EZam
June 17th, 2010 | LINK

Here’s hoping that (at least) one of the Dark Side judges kicks the bucket before this reaches the SCOTUS.

Priya Lynn
June 17th, 2010 | LINK

I’d say thats the only hope, Ezam.

Jon
June 17th, 2010 | LINK

What’s so frustrating about the proponents of Prop. 8 is that no matter what they raise as the purpose of Prop. 8, they can never explain the connection between what Prop. 8 does and its ostensible purpose. If the purpose now is to reduce the likelihood of children being born outside of wedlock, how does it do that? It doesn’t do one thing to make expectant mothers more likely to marry the fathers of their children. It doesn’t impose any additional social stigma on unwed mothers. Even if you accept that the goal is to increase the likelihood that children will be raised by two biological parents of the opposite sex, it doesn’t do one thing to decrease the likelihood that same-sex couples will take the necessary steps to have children. All it does is ensure that where a same-sex couple has children, those children are born “out of wedlock,” without the protection that having married parents gives them.

Richard Rush
June 17th, 2010 | LINK

In an attempt to be optimistic, would people have thought in 2003 that Anthony Kennedy, a Catholic, would vote to strike down sodomy laws (Lawrence v. Texas), and then write the eloquent opinion?

CPT_Doom
June 17th, 2010 | LINK

Although it is tempting for me to try and pre-guess the outcome based on our assumptions about the justices, I am sure that Ted Olson and David Boies and their large and prestigious law firms have spent vast amounts of time scouring previous votes and have a better sense of the individual temperments of the justices than I ever could imagine.

They believe that they will win. And they are damn good at what they do.

I agree, and I really wonder, as I’ve noted on other blogs, if Olson and Boies are aiming at a very specific ruling – overturning simply the referenda process for determining marriage laws, using Romer v. Evans as the precedent. I think you’d be much more likely to get conservative Justices to sign onto such a decision if it did not explicitly overturn DOMA. The judge, in his questions for Olson/Boies, seemed to be asking for grounds to do just that – rule without touching DOMA.

It could be yet another smart move by this team. In the meantime, I think we should all be sending Scalia gifts of steak and fatty foods.

Lynn David
June 17th, 2010 | LINK

Priya Lynn…. I was with you up until that point, then you competely lost me. Having your wish granted can’t work out to be a good thing for the cause.

Well, I’ve always been one for contrarian thinking.

Chris McCoy
June 17th, 2010 | LINK

CPT_Doom said:

[...] if Olson and Boies are aiming at a very specific ruling – overturning simply the referenda process for determining marriage laws, using Romer v. Evans as the precedent. I think you’d be much more likely to get conservative Justices to sign onto such a decision if it did not explicitly overturn DOMA

I understood this to mean you think Olsen/Boies are asking the judge to rule that the citizens of California cannot vote on marriage laws at all? How would the conservative majority of the SCOTUS sign on to that?

Mark F.
June 19th, 2010 | LINK

“They believe that they will win. And they are damn good at what they do.”

Yes, they are. I’m very impressed with their skills. And sure, I don’t think they took this case as a hopeless fight.

Mark F.
June 19th, 2010 | LINK

“I understood this to mean you think Olsen/Boies are asking the judge to rule that the citizens of California cannot vote on marriage laws at all? How would the conservative majority of the SCOTUS sign on to that?”

No, I believe they are saying that restricting marriage to opposite sex couples has no “rational basis.” They aren’t arguing that the citizens of California can’t outlaw incestuous marriages or marriages of 9 year olds, as both presumably would have a “rational basis.” (Interestingly, California does currently allow first cousin marriages.)

Maurice Lacunza
June 20th, 2010 | LINK

First, I disagree with Lynn that we should “lose this case big.” Are you an idiot? Do you want rioting and mayhem? The courts ARE the answer for our fight!

Second, I read the entire transcript and it was a delight…well worth the read. I agree with others that it seems that Mr. Cooper is “throwing” the case. He presentes one piece of evidence that winds up supporting our case. He quotes people that are not a part of the record. He relies on “common law” and “thats the way we always did it.” Neither of which was acceptable to the Judge.

My favorite phrase is coined above: “It can’t be constitutional to take away a constitutional right because a person engaged in a constitutionally protected behavior.”

Last, I think that the Judge gets it. He turns Cooper’s words back around on him by using the exact same words to defend the plaintiff’s position. Olsen was terrific in dealing with the Ninth Circuit rulings. He gutted Cooper’s reference to High Tech Gays by quoting a more recent case by the 9th that nullified High Tech Gays. There is so much more!

Thanks BTB for bringing the info and the links. I am going to write a letter to Olsen and Walker thanking them for excellent work.

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