Yesterday's closing arguments in Perry v. Schwarzenegger, challenging the constitutionality of Proposition 8 which stripped marriage equality from California gay couples, concluded the trial portion of the case. It now rests with Judge Vaughn Walker, who is expected to issue his decision sometime this summer. Regardless of his findings, it is widely anticipated that the case will be appealed to the 9th Circuit Court, and then to the Supreme Court.
The official transcript of the closing arguments is available from the American Foundation for Equal Rights.
Facts vs. Myth – The Shift in the "Protect Children" from the evil gays to "Protect Procreation."
Arguing on behalf of the Plaintiffs, attorney Ted Olson focused on four elements: (1) marriage from the perspective of the proponents of Proposition 8, (2) marriage from the perspective of the U.S. Supreme Court, (3) marriage from the perspective of the plaintiffs (and gay people, generally), and (4) marriage from the perspective of the experts who offered their testimony.
Olson's arguments centered around the evidence presented and, ironically, included the testimony of the proponent's only expert witness, David Blankenship, which seemed to support gay marriage.
Olson also brought up the fact that the proponents' arguments for Proposition 8 shifted from "protect the children" from what the proponents deemed to be an immoral and deviant class of citizens to a "protect procreation" type of argument.
Olson referenced religious views, citing the Loving v. Virginia case in which religious people held the view that "It's God's will that people of different races not get married." The Court found that those religious views were not constitutional.
He also explained that heterosexual people will not stop getting married or having children just because gay people get married.
Another foundation of his argument rested on the discrimination and creation of a second class of citizens created by Proposition 8, and that the discrimination did not further the interests of the state.
For the city and county of San Francisco, Therese Stewart added to Olson's arguments that there was no benefit to the state in denying marriage equality.
What was striking about the closing arguments was the plaintiffs' reliance on evidence, particularly compared with the Proponents' arguments put forth by Charles Cooper.
The End of the Human Race … and "channeling" is not just for J.Z. Knight and other New Agers.
The Proponents' main arguments appeared to be that marriage is for procreation and that gay marriage will somehow threaten the institution of marriage. At page 3030 of the transcript (page 78 of the pdf download – see link above), Cooper said,
"… the marital relationship is fundamental to the existence and survival of the race. Without the marital relationship, society would come to an end."
Cooper said that the state's main concern in regulating marriage was to "channel naturally procreative sexual conduct into stable and enduring unions to minimize irresponsible procreation." (See page 3051; 99 of the pdf.) Similarly, infertile couples also are "channeled" into marriage, furthering "the procreative purposes and policies underlying the traditional definitions of marriage." (See page 3053; 101 of the pdf download.)
The Proponents are arguing for a "rational review" meaning that the voters did not act out of discrimination or animus in passing Proposition 8. Pages 3042 and 3043 (90 and 91 of the pdf) have an interesting exchange:
COOPER: And the plaintiffs, the plaintiffs say, there is no way to understand, understand why anyone would support Proposition 8, why anyone would support the traditional definition of marriage except through some irrational and dark motivation, some animus, some kind of bigotry, your Honor.
And that is not just a slur on the 7 million Californians who supported Proposition 8. It's a slur on 70 of the 108 judes who have upheld as constitutional and rational the decision of voters and legislatures to preserve the traditional definition of marriage. It denies the good faith of Congress [speaking about DOMA] — not just these judges, of congress — of state legislature after state legislature and electorate after electorate.
THE COURT: Let me ask: If you have got 7 million Californians who took this position, 70 judges, as you pointed out, and this long history that you have described, why in this case did you present but one witness on this subject? One witness. You had a lot to choose from if you had that many people behind you. Why only one witness? And I think it fair to say that his testimony was equivocal in some respects.
COOPER: Certainly not on this one, your Honor. And his testimony was utterly unnecessary for this proposition.
THE COURT: This goes back to the you don't need any evidence point.
The issue about law-abiding gays being placed in a class below prison inmates, pedophiles, rapists, murderers and child support payment dodgers who have the constitutional right to marry was discussed by the the plaintiffs and presented to the proponents of Proposition 8. Cooper's response was that marriage is a gender-specific right.
Cooper speculated on the "unknown" repercussions of marriage equality but was unable to provide any factual evidence that it would undermine the "institution" of marriage and somehow stop procreation.
We don't know. We don't need to prove anything. But we have the right to discriminate because of our beliefs.
Back when the trial was taking place, some observers noted that there was an eerie similarity in the Perry v. Schwarzenegger case to the Scopes Monkey Trial case. Part of this observation stemmed from the proponents' dismissal of science because scientific findings periodically changed, thus meaning that science is influenced by politics and cannot be relied upon.
As we've seen, the proponents have shifted their argument into a "protect the children" to "protect procreation" premise, but have no evidence or data to back up the claim that marriage equality will result in "irresponsible procreation."
For the plaintiffs, Ted Olson's rebuttal argument starts at page 3095 (page 143 of the pdf download). Beginning at page 3096:
OLSON: The argument that Mr. Cooper make is, essentially, the same argument that was made to the Loving court.
Which, by the way, the Loving court unanimously decided to strike down 14 or 15 miscegenation statutes. California had been the first, 20 years before that. When it got to the Supreme Court in Loving, it became unanimous.
And we stand here today thinking, how could that have been? In 1967, that's only 40 years ago, we would not — we would have punished as a felony in the state of Virginia the President's mother and father if they had tried to travel there and be married.
The same argument was made to Martin Luther King, and to Thurgood Marshall, and to Ruth Bader Ginsburg. We're talking abut fundamental constitutional rights. We are talking about treating people equally. That's not breaking new ground. We're talking about allowing people the same freedom to marry the person that they love, as we have the rest of our society.
Now, Mr. Cooper's argument is — and I know he would like to take back these words, and I know why he would like to take back these words — "We don't know. we don't have to prove anything. we don't have any evidence." Yet, he relies on persons — he was reading from articles written by various persons, just a few moments ago from this podium, who did not come into this courtroom and testify under oath and subject themselves to cross-examination by my colleague, Mr. Boies. Some of them didn't come into court because they had been cross-examined by Mr. Boise in their depositions.
But you do have to know. You can't take away the rights of tens of thousands of persons. Those rights were recognized and did exist in California. I submit that they should have existed before the California Supreme Court decision and before Proposition 8.
But you can't come in here and say, "I don't know, and I don't have to prove anything, and I don't need any evidence except for some people writing in books who won't come into court and subject themselves to the judicial process."[…] Mr. Cooper talks about procreation as the fundamental basis for marriage.
And you made the very good point. Well, don't you have to prove that Proposition 8 does something to protect procreation? The channeling, what Mr. Cooper calls the channeling function. Which is a new term for me today. That the State of California is in the marriage business in order to channel us. Or those who are unfortunate enough to live in California get to be channeled.
But he does have to prove — the Romer court specifically says this:
"Under the lowest standard of review, you have to prove that you have a legitimate interest and that the object," Proposition 8 in this case, "advances that legitimate interest."
So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation? They are not a threat to us.
What one single bit of evidence that they are a threat to the channeling function? If you accept that California has the right to do that in the first place. And I do not.
This is an individual constitutional right. and every Supreme Court decision says that it's a right of persons. Not the right of California to channel those of us who live in California into certain activities or in a certain way. [emphasis added]
Olson's rebuttal goes to the heart of the matter: Under a secular system, you need facts to back up your claims. Judgments about morality and basic human rights that are based on religion are simple-minded ones, based on a nebulous authority that requires no proof.
Proposition 8 was clearly motivated by religious interests, who pumped millions into promoting it.
And that's why this case should have been more public.
It goes to the root of why there must be separation of church and state.
Religion generally relies on an authority that requires absolutely no proof other than faith in its particular dogma. If we are to declare ourselves a Christian Nation, whose dogma is the authority? Take the Metropolitan Community Church for example. It's Christian. But it also believes in marriage equality. Whose version of Christianity should control?
If you are going to condemn one person or a group of people by denying them the same rights that you enjoy, back it up with logic and reason, not irrational fear and dogma.
Barefooted Maggie. Maggie Gallagher of NOM (the National Organization for Marriage) was at the trial, live blogging for proponents of Proposition 8. Readers might recall the propaganda piece that NOM had produced:
Most of us, when we go to a court room or other proceeding, demonstrate some modicum of respect. We dress up; we're don't pick our noses; we wear shoes. Maggie Gallagher apparently decided to go barefoot, and put her feet up for all to enjoy. The Courage Campaign reported that "The bailiff just made Maggie NOM put her bare feet down. She is so disrespectful."
Earlier, Gallagher demonstrated the same level of respect for the checks and balances afforded by the judicial system, saying that "This is the trial that should never have happened." Apparently, in her view, minorities do not have the right to appeal to the courts for protection of their perceived rights. Apparently in her world, all those couples in California who achieved equality should have rolled over and accepted their fates, no questions asked.