Federal Case to Overturn Prop 8 Goes to Judge
This from Bill May of Catholics for the Common Good Institute followed by story:
On Wednesday, I attended the closing arguments on the federal case to overturn Prop 8. You cannot get a good idea of what really went on from media coverage, so I have provided a summary and analysis on the website at http://www.ccgaction.org/index.php?q=marriage/CA/prop8trialclosingarg.
Charles Cooper did a great job of getting key points into the record that should make it very difficult for the Judge to do anything but uphold Prop 8. Having said that, the decision could go either way. If Prop 8 is overturned, it will be immediately appealed.
I have provided clarity on the most compelling arguments, which should be helpful to you in explaining what happened to friends and family members.
As you will see, a bad discussion on this case could completely remove the definition of marriage from the realm of political debate, just as Roe v. Wade created a constitutional right to abortion. This case will likely go to the U.S. Supreme Court and could affect the entire nation.
As I noted at the end of the article, conversations between attorneys and the judge highlighted the great amount of confusion there is about what marriage is, and its relationship to children and parenting.
The debate is complicated by many factors, among which are the promotion of alternative families in which depriving children of mothers or fathers is considered normal, redefinition of motherhood and fatherhood as roles rather than biological realities, artificial means of procreation through IVF, and children unwittingly being reduced to objects for adult fulfillment rather than gifts of equal dignity. The fight to protect and promote marriage between a man and a woman cannot be divorced from these factors.
This continues to highlight the need for training large numbers of people in the new and very effective techniques that have been developed in conjunction with the Stand with Children strategy to promote the centrality and integrity of marriage for children and society.
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SAN FRANCISCO, June 16, 2010 – The message delivered to Federal District Judge Vaughn Walker by Prop 8 proponents during the closing arguments at the trial to redefine marriage in San Francisco was clear. The voters have overwhelming authority and rational reasons for defining marriage between a man and a woman. The voters’ decision to pass Prop 8 cannot be overturned unless the plaintiffs negate every single claim of state interest for promoting the uniquely pervasive institution that channels procreative activity into a stable relationship.
Judge Walker noticeably stiffened in his chair as Charles Cooper, lead counsel for the defense, further stated that even if he concludes that every claim made by the plaintiffs is true, he could still not rule against Prop 8 unless he found that all of the rational reasons for protecting marriage were false. “It is a judicial tsunami they are asking you to sail into.”
Plaintiffs’ counsel claimed that people who voted for Prop 8 could only have done so “through irrational or dark motive, some animus, some kind of bigotry.” After citing myriad U.S. Supreme Court cases going back to the late 1800’s that affirmed the public interest in marriage, Cooper responded by telling the judge that the plaintiffs’ charge was “a slur on 7 million Californians It’s a slur on 70 of 108 judges who have upheld as constitutional and rational the decision of voters and legislatures to preserve the traditional definition of marriage.”
Over the course of his closing argument, Cooper was masterful at weaving in pertinent legal authorities that are not only important for this judge’s deliberations, but are most critical to have in the record for appeals likely leading to the U.S. Supreme Court.
The Roe v Wade of Marriage?
At the end of his argument, Cooper took the opportunity to urge the judge to let the debate on marriage continue by upholding Prop 8. Cooper’s words were more significant than one might imagine, because if Prop 8 had failed, — or if the judge decides to overturn it and his decision is upheld –, it would be legally discriminatory to even argue that marriage between a man and a woman has a higher value to society than same-sex relationships.
As the plaintiff’s counsel rose to rebut Cooper’s argument, Judge Walker seemed to turn pensive and asked about detrimental consequences of “constitutionalizing” social change and taking it out of the “political realm,” effectively ending debate. He obscurely referred to the example of the Roe v. Wade case, without mentioning it by name, and the resulting polarization. Roe v. Wade overturned every restriction on abortion across the country and ignited shock waves that are still reverberating 37 years later. Walker suggested that overturning Prop 8 could lead to the same kind of situation that has “plagued our politics for 30 years” and could be dangerous for the future of the same-sex “marriage” movement.
Plaintiffs argued that because of discrimination against homosexuals the must be treated as a protected class requiring a stricter standard be used since the plaintiffs contention is that Prop 8 discriminates against this class of people. Cooper pointed out that for homosexuality to be a “suspect class” under the equal protection clause of the constitution, homosexuality must be immutable.
Evidence provided during the trial by one of the plaintiffs’ witnesses is that about two-thirds of lesbians change their sexual orientation at least once over the course of their lives – contradicting the immutability claim. The judge responded that discrimination based on religion is protected and religious beliefs can change, but Cooper reminded him that protection of religious beliefs is covered by the first amendment guaranteeing religious liberty creating the basis for equal protection clause.
The performance of former U.S. Solicitor General Ted Olsen, the attorney who presented the closing arguments for the plaintiffs was somewhat surprising for someone who has argued a number of cases before the U.S. Supreme Court. His arguments seemed very general and to be more directed toward repeating campaign-style rhetoric than legal argument. This plays well with gay “rights” communities and with the media, who enthusiastically applauded when the plaintiffs’ legal team was introduced at a closed press conference following the hearing.
Olsen argued that procreation has never been a condition for marriage and therefore it cannot be about procreation. There is much procreation taking place outside of marriage as less people are getting married and more people are cohabitating. Marriage has changed over the last 30 years, he claimed, and is breaking down on its own attempting to demonstrate that it could not be adversely effected by permitting gays and lesbians to marry. If the state’s interest were to channel people who procreate into marriage, there would be no no-fault divorce laws that channel people out of marriage. New York is the only state without no-fault divorce and it is expected to adopt it soon.
Olsen tried to equate restrictions on same-sex “marriage” to attacks on the dignity of blacks in past marriage laws, and a contention contended that withdrawing same-sex “marriage” rights contributes to stigmatizing gays. He referred to the fact that 18,000 same sex couples married during the period from May 2008, when the California Supreme Court struck down the Defense of Marriage Act passed by the voters in 2000, to the date of passage of Prop 8 that November.
For some reason, Olsen felt it important to draw attention to testimony by Dr. Nancy Cott of Harvard about how slaves were denied marriage and somehow linking this with bans on interracial marriage. Olsen continued to misrepresent court decisions striking down interracial marriage barriers as a redefinition of marriage to bar racial discrimination against adults in loving relationships. Cooper, on the other hand, pointed out that the right to marry in those cases assumed marriage between men and woman as the justices pointed out was “fundamental to the existence and survival of the human race.” He noted that these restrictions “grew out of . . . white supremacist theory,” meaning these laws were about eugenics – racial purity and the procreative nature of relationships between men and women.
Olsen tried to argue that precedent for overturning Prop 8 could be found in the Lawrence v. Texas decision that overturned a law criminalizing private sexual behavior. He argued that marriage is also a private behavior. Cooper countered that Lawrence focused on a criminal statute, not a statutory privilege created by the state. Further, Cooper cited Crawford v Board of Education, a 1982 California case in which the U.S. Supreme Court upheld the rights of voters to pass an initiative to reduce state requirements for school busing to the federal standards. The national standard for marriage established in the federal law (DOMA), and by 40 states that have adopted marriage protection amendments or legislation, is that marriage is between a man and a woman.
Olson also pointed to Romer v. Evans, a Colorado case on an initiative amending the state constitution to ban all legislation at any level of government that would provide any protections against discrimination based on sexual orientation. The U.S. Supreme Court found that there was no rational reason to adopt something so broad and overturned it on that basis. Cooper pointed out that is not the case in California. Prop 8 is very narrow and there are clear reasons for retaining the traditional definition of marriage, which the plaintiffs have not refuted.
Cooper further cited a New York Court of Appeals case upholding marriage and the Lofton v Florida upholding a ban on gay adoptions by the 11th U.S. Circuit Court of Appeals. Both courts cited common sense alone as being sufficient as rational reasons for adopting the laws. No one knows how long it will take Judge Walker to arrive at a decision. It could be a couple of weeks or it could be several months. There is no deadline.
As a closing note, conversations between attorneys and the judge highlighted the great amount of confusion there is about what marriage is, and its relationship to children and parenting.
The debate is complicated by many factors, among which are the promotion of alternative families in which deprived of mothers or fathers is considered normal, redefinition of motherhood and fatherhood as roles rather than biological realities, artificial means of procreation through IVF, and children unwittingly being reduced to objects for adult fulfillment rather than gifts of equal dignity. The fight to protect and promote marriage between a man and a woman cannot be divorced from these factors.
This continues to highlight the need for training large numbers of people in the new and very effective techniques that have been developed in conjunction with the Stand with Children strategy to promote the centrality and integrity of marriage for children and society.
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