Court hears closing arguments in landmark case challenging Prop 8 ban on gay marriage


LGBTQ Nation

Closing arguments were presented in court today in the landmark trial challenging the constitutionality of Proposition 8, the final opportunity for attorneys on both sides to influence a federal judge in deciding the fate of California‘s voter approved ban on gay marrige.

“This case is about marriage and equality,” plaintiffs attorney Ted Olson told the court, adding that the State has stigmatized gay men and women as “unworthy of marriage.”

Countering, defense attorneys stressed the state has a strong interest in regulating marriage and promoting the institution for procreation.

It’s been nearly five months since Chief U.S. District Judge Vaughn Walker heard testimony in the case of Perry v. Schwarzenegger, filed on behalf of two same-sex couples who were denied California marriage licenses after the upholding of Proposition 8 in November 2008.

Judge Walker was active in his questioning today, not surprising in that he issued 39 questions relating to the case and testimony to attorneys last week in advance of today’s arguments.

Walker questioned whether a federal court should intervene in a legal fight over a contentious social issue, particularly when the voters have adopted a law such as Proposition 8.

“When is it right for the court to weigh in on a state’s voter approved law,” he asked.


Olson stressed that history is replete with examples of courts correcting discrimination, comparing the Proposition 8 challenge with the historic 1954 U.S. Supreme Court decision in Brown v. the Board of Education (in Topeka, KS) that declared state laws establishing separate public schools for black and white students as unconstitutional by denying black children equal educational opportunities.

“The evidence is overwhelming,” Olson told Judge Walker. “This is a government imposed stigma … placed in the constitution of the state of California.”

Deputy City Attorney Therese Stewart, representing the City and County of San Francisco, concluded a short argument by saying the law essentially requires the city to discriminate by denying marriage licenses to same-sex couples.

Lawyers for both Governor Arnold Schwarzenegger and Attorney General Jerry Brown, named as defendants in the complaint, waived their their rights to closing arguments. In theory, both offices would ordinarily defend a state law, but Brown has previously been on record as saying he considers Proposition 8 unconstitutional. Gov. Schwarzenegger has taken no position, leaving the matter to federal courts to resolve.


In his closing arguments, Charles Cooper, lead defense attorney for the proponents of Proposition 8, told Walker that the “marital relationship is fundamental to the existence and survival of the race.”

Walker pressed Cooper, often flustered by the judge’s questions, on just what marriage means and why the state should care about it.

“Do people get married for the benefit of the community,” Walker asked.

The purpose of marriage is to provide “society’s approval to that sexual relationship and to the actual production of children,” Cooper responded.

Walker seemingly unconvinced, replied “But the state doesn’t withhold marriage from people who cannot have children.”

Judge Walker

The judge repeatedly asked Cooper what evidence his side had for the argument that banning gay marriage is justified to promote the procreative purpose of traditional marriage.

“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.”

“Where’s the evidence?” Walker asked.

“You don’t have to have evidence of this,” Cooper attempted to assure him.

Daniel Blankenhorn’s, a family values leader and the lone witness for the defense, provided the bulk of testimony that heterosexual relationships are better for children, although in cross-examination admitted he knew of no study showing that children reared from birth by same-sex couples fared worse than those raised by biological parents.

Judge Walker has indicated he’s considering striking Blankenhorn’s testimony.

Plaintiffs lawyers have argued that Blankenhorn doesn’t qualify as an expert, and in his rebuttal argument, Olson expounded on the lack of evidence presented by the defense for denying same-sex couples the right to marry.

“You have to have a reason for that,” Olson said. “‘I don’t know, I don’t have any evidence,’ doesn’t cut it.”

The case is now in Judge Walker’s hands, and his decision could come within 30 days. Regardless of the outcome, the case is certain to be appealed to the 9th U.S. Circuit Court of Appeals and may eventually reach the U.S. Supreme Court.

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