Our side presented a complete, nuanced, well-researched and well argued case.
Ted Olson (viaOfficial Transcript)
"We've always done it that way," that "It's a traditional definition of marriage," which is something that "We've always done it that way," is the same -- is the corollary to the "Because I say so." It's not a reason.and he goes on,
You can't have continued discrimination in public schools because you have always done it that way. You can't have continued discrimination between races on the basis of marriage because you have always done it that way. That line of reasoning would have prevented the Loving marriage. It would have justified racially segregated schools and maintaining subordinate status for married women.
Well, we know that taking away the right to marry was, indeed, the very essence of slavery. Yet, that very freedom once denied to slaves and denied to interracial couples throughout this country is now being denied to the plaintiffs; not because they are Chinese in this case, not because of their race, but because of their sexual orientation. How can it be wrong in those areas and right in this area under the Equal Protection Clause? That does not square with any of the language that the Supreme Court has used in deciding Equal Protection cases.Their side (attorney Charles Cooper) argued that the purpose of marriage is Procreation, and only procreation, and same sex marriage will threaten this, because marraige "is fundamental to the existence and survival of the human race." Really. If people can't marry, they will stop having sex? Doesn't the mind boggle?
And that has been used, that same language has been used to strike down classes among citizens. That's the language of Romer. That principle has been extended from race, to nationality, to ancestry, to sex, to legitimacy, to the favoring of the husband in matters of marital property, and in 1996 in the Romer case to sexual orientation.
When challenged that the state doesn't forbid marriage between infertile people, he claimed that somehow that was still supporting procreation, and agreed that tactics to test fertility or annul childless marriages would be "Orwellian". But he still failed to grapple with how a gay couple differs from a childless straight couple" in any meaningful way.
Cooper went on to imply that because (bear with me here) gays don't procreate like straights, they have to be more deliberate (and responsible) about it. So somehow this means since there are no "accidental" pregnancies in a gay couple, marriage is not important. But marriage IS required to keep straights on the straight and narrow, so to speak "it's irresponsible procreation. The procreation that comes about casually."
When challenged about infertile straight couples, Cooper said, "the fertile member of that couple will be less likely to engage in sexual relationships with third parties and raise anew a threat of some type of unintentional or what I have been referring to previously as irresponsible procreation."
Because if one of a straight couple FALL OFFs the straight and narrow and has sex with someone else, outside of marriage, well, they're married, so it's okay. Sort of. Because any little accidents will have a married mummy and a daddy even if daddy isn't who he thinks he is. So he praises the stabilitization of marriage for straight infertile couples, but again, are they, really, different from Teh Gay?
THE COURT: Why don't those same values, which are values to society that you have described, apply to lesbian couples and gay couples? Coming together, supporting one another, taking care of one another, looking out for one another, being an economic unit, being a social unit, providing love, comfort and support for one another, why don't all of those considerations apply just as much to the plaintiffs here as they apply to John and Jane Doe, to use the names that Reverend Tam used.
MR. COOPER: Those purposes, your Honor, are -- wehaven't suggested there is a distinction among gay and opposite-sex couples with respect to those considerations. There is a distinction, however, with respect to the fundamental procreative purpose, responsible procreative purpose of marriage; and that is that the gay couple, unlike the opposite-sex couple where one of the partners may be infertile, doesn't represent -- neither partner in the -- with respect to the same-sex couple is -- again, assuming homosexual sexual orientation -- represents a concern about irresponsible procreation with a third party.
The whole thing was about about breeding, breeding breeding, to the point where one of the twitterers posting at #prop8 proposed a drinking game every time defending counsel said "procreate" and the judge acidly inquired whether married couples should be required to have children.
These so-called consequences of same sex marriage were not presented. You know, like the lower rates of divorce and teen pregnancy in bad ol' Massachusetts. Whoa--scary stuff! Look what the Gays Hath Wrought.
Oh, and apparently the state "channels" towards marriage. Kinda like scientology, I gues.
Bizarrely the defending counsel informed the judge on more than one occasion that he didn't NEED witnesses or evidence for nearly anything he said. The lawyers on the twitter feed were astonished, and the judge was distinctly cross..
Olson finished the rebuttal:
the Romer case that says you can't take away rights and make them unconstitutional to -- impossible to recover except by amending your state constitution, and the Lawrence case that says that the sexual orientation of individuals in their private conduct is a protected right, you cannot then, in the face of all those decisions by the United States Supreme Court, say to these individuals, "We are going to take away the constitutional right to liberty, privacy, association, and sexual intimacy that we tell you that you have, and then we will now use that as a basis for not allowing you the freedom to marry." That is not acceptable. It's not acceptable under our Constitution.
And Mr. Blankenhorn is absolutely right. The day that we end that, we will be more American.
The morning after:
[T]radition seemed on the losing end of the argument.Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, repeatedly questioned lawyers defending the measure — Proposition 8, passed by California voters in 2008 — over their position that marriage is, simply put, for making babies.
Maggie Gallagher of NOM also thinks the judge will overturn. OR maybe she just sees that as a fundraising gimmick.
Christopher Stoll , an attorney at the National Center For Lesbian Rights (NCLR) writes,
Today's arguments overwhelmingly demonstrated the volume and strength of the plaintiffs' evidence, and the complete lack of evidence in support of Proposition 8.
Although it's risky to predict how a judge might be leaning based on the questions he asked, several of Judge Walker's suggested that he might be considering applying some type of heightened scrutiny to Prop 8 because it discriminates against people based on their sexual orientation. Judge Walker indicated that in his view, whether a trait is "immutable" and whether the excluded group lacks political power are not the key factors supporting heightened scrutiny. Instead, his questions indicated that he considers it more important that the group have a long history of discrimination based on a factor that is irrelevant to their ability to contribute to society. .... The defenders of Prop 8 offered no evidence that there was even a rational reason, let alone a compelling one, for the voters to single out one category of California couples for unequal treatment under the law.
This concludes my crossposting on Prop8. If you want to keep following this issue, please visit my blog Gay Married Californian