Prop. 8 trial: Closing arguments end as judge presses both sides

Closing arguments concluded Wednesday afternoon in the Proposition 8 trial with more pointed questions from U.S.  District Judge Vaughn R. Walker, who is presiding over the landmark proceedings to determine the constitutionality of California’s ban on gay marriage.

When court resumed after the lunch break, Charles Cooper, attorney for proponents of the measure, told Walker that the “marital relationship is fundamental to the existence and survival of the race. Without the marital relationship, society would come to an end.”

That relationship, he said, is between a man and a woman and its main focus is procreation and “channeling” the sexual behavior of heterosexuals into “stable, marital unions.”

Walker continually pressed the sometimes flustered Cooper on just what marriage means and why the state should care about it. Why does the state regulate marriage, he asked. Do people get married to benefit the community? Why doesn’t the state just consider it a private contract?

Walker: “Why is it that marriage has such a large public role? What is the purpose?”

Cooper: “This relationship is crucial to the public interest.… Procreative sexual relations both are an enormous benefit to society and represent a very real threat to society’s interest.”

Walker: “Threat?"

Cooper: “If children are born into the world without this stable, marital union … both of the parents that brought them into the world, then a host of very important, very negative social implications arise.... The purpose of marriage is to provide society’s approval to that sexual relationship and to the actual production of children.”

Walker: “But the state doesn’t withhold marriage from people who cannot have children.”

Cooper: “It does not.”

Walker: “Are you saying the state should?”

Cooper took Theodore Olson, attorney for the gay and lesbian couples who filed suit against Proposition 8, to task for claiming that Californians could support the ban on same-sex marriage only “through irrational or dark motive, some animus, some kind of bigotry.”

He called Olson’s characterization a “slur” on the millions of Americans who voted for the ballot measure in 2008 and “a slur on 70 of 108 judges who have upheld as rational the decisions by voters and legislators to preserve the traditional definition of marriage.”

Olson’s viewpoint, Cooper said, “denies the good faith of Congress, of state legislature after state legislature and electorate after electorate.”

To which Walker responded: “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.”

A ruling in the case is expected sometime this summer

-- Maria L. La Ganga at federal court in San Francisco

Comments

[John De Salvio]

It amuses me that with a planet populated with about 7 BILLION people, one fifth of whom can barely afford to eat, Prop 8 people think gay marriages will kill society. As to gay parenting skills, there are way too many sets of gay parents raising their mostly straight children - who turn out to become acceptable of people who are born with differing sexual orientations. How many straight marriages survive? Children raised by gay parents also know that sexual orientation can't be taught. It is something that you eventually discover, like being left-handed. Maybe we shouldn't allow left-handed people the same rights as right-handed - correct-handed - people.

[wtf]

What the heck. If sex is only for procreation then i guess we'll have to ban birth control. Seriously, this is their main argument for why we should discriminate against gays?

Allowing gay people to marry, still allows them to adopt or do artificial insemination and the like. So even if you wanted to promote marriage as a parenting institution (which obviously it isn't just for that), then what's the problem?

[Ryu]

Cooper hadn't made good argument since day one.

[Julian Lee]

“But the state doesn’t withhold marriage from people who cannot have children" says Mr. Clever.

But homosexuals are intrinsically barren; they are perforce non-procreative. This is different than the misfortune of a heterosexual couple unable to procreate. (Or uninterested because they are still young and shallow, or whatever.) Homosexuals have nothing to do with marriage in any holistic or natural sense. Nature simply did not put them on the same footing for family as heterosexuals.

Society would try to place both types of "couples" on the same footing, of course, even though they're not. So "gay marriage" would have power to corrupt/distort the meaning of parenthood and the natural parent-child bond for heterosexuals, for whom the significance of the parental tie has always been an element of natural law and Common Law. "Gay couples," which must necessarily pilfer their "children" from at least on other parent, would basically force a devaluation of the parent child bond.

The real victims of gay marriage would be children and well-ordered, holistic and natural society. The significance of the natural parent-child bond would be demeaned and trivialized by "gay marriage," and gays would need a steady supply of orphans (the misfortune of a child separated from her parents) in order to cobble together their amalgams which they would call families. This would have chaos-creating social impact.

That's why this decadence has always been rejected by all peoples of the past, including indigenous, natural peoples.

[Carrot Cake Man]

Well, gee, thanks, Ms. La Ganga, for the gay-haters' side of the hearing.

[Ken]

Sure there's a good reason not to license brideless or groomless pairings as marriage: That's how the people voted. The time to convince someone there was no good reason was before Proposition 8 passed.

SCOTUS has never recognized that a brideless or groomless pairing is marriage and that such a couple has a right to a state-issued license. If a state-issued marriage license is truly a fundamental right in such a way that restrictions are not allowed to deny that license to someone based on their choice of partners, then it can't be denied to first cousins (as it is in some states) or closer relatives, or more than two people - and those HAVE historically been recognized as marriage.

State licenses, by definition, are issued by the state on behalf of the people of a state. Fundamental rights are things you are born with. Bans on "interracial" marriage literally denied people the ability to live together. That's not the case anymore - you don't have to be married to live together. Individuals do have the right to freedom of association. Today, consenting adults do have the right to associate as they wish – living together, celebrating their relationship, etc. What they do not have is a right to force the rest of us to give them anything.

It doesn't matter why individuals get married, unless they are doing so under fraudulent pretenses. What matters is – does the law benefit society? There are many examples of laws and government programs that are offered for a purpose that may not be the reason a given individual uses that law or program. Some people join the Army to make a living, but that is not why WE have an Army.

The ability to naturally procreate is a major, if not the only, reason for the state to be involved in a voluntary personal relationship between adults. Absent that ability, the state interest isn't the same.

Our entire Constitution was written on the premise that the government should not be involved in anything - certainly not voluntary personal relationships - unless someone's rights are being threatened, such as through assault or theft, or unless it was specifically instructed by the Constitution to be involved in something. Nobody's right is threatened when they have the same access to a license as anybody else - even if they don't WANT to get that license under current conditions.

It is up to those suing for a change to demonstrate that they are somehow impaired or harmed by the state constitutional amendment in a way that compels the federal government to get involved. They have the burden of proof. Homosexuality advocates are apparently are so used to getting something simply because they ask for it that they are under the delusion that the rest of us can only say "no" to their demands of us if we demonstrate to their satisfaction grave harm would result. That's not the way the law works, unless they get a judge to go along with them.

I've seen demonstrably false campaign ads about many propositions, and ads that focused on minor points with specific talking points. So what? What matters is the text of the law. That I don't like a condition for state licensing does not obligate a change in that licensing. Even if I cry about it. The rest of us are not obligated to try to structure our laws so that you don't feel bad.

Don't want to get married? Don't. It is OPTIONAL.

[Reggie]

If gays were to simply come up with some term other than "marriage" for a state acknowledgment of a committed homosexual relationship, I think we'd be seeing far less controversy over this issue.

Straights perceive this insistence by gays and lesbians to call homosexual unions "marriage" as an attempt to achieve social equality by redefining legally what this traditional term "marriage" means.

We should let the people who are currently using this term decide what it means. In fact, the people have already voted on this.

The phrase "gay marriage" is a contradiction. It cannot happen, because the word "marriage" simply means something else!

[Wolf73B]

This judge will no doubt overturn Prop 8. I lived in California for 11 years, and I saw it happen time and again: The people of the State express their will, and judges invalidate it.

[Al]

This is why I loathe liberals: When they are in the majority, they say the majority should rule; when they are in the minority, they say the majority is wrong.

I don't think anyone should be persecuted for how they live. At the same time, I don't think if someone's lifestyle deviates from the norm that the norm should be redefined.

Homosexuality is weird. Get over it. If that's your thing, just accept that you're into weird stuff and move on. But stop trying to force everyone else to think it's not weird, because no matter how many laws you make, no matter how many times the court overturns the majority rule, at the end of the day it's still weird, and that you cannot change.

[Kurt]

I wonder what the illustrious Mr. Cooper would have to say about all of the millions of people who managed to get along without marriage before so-called civilization struck.

What an idiot.

[mark pederson]

Should I be able to marry my sister? Why not I love her. Are you an incest bigot? Should I be able to marry my children, aunt, uncle, my dog my grandparent, my best friend, why not are you some kind of bigot.

[John Howard]

The state should withhold marriage licenses from certain prohibited relationships like siblings, mother-sons, and yes from same-sex couples. In all of these cases it would be unethical to conceive children.

I don't know why Cooper didn't bring up that some types of relationships are indeed prohibited from marrying and procreating together.

Same sex conception is not prohibited, however, it is perfectly legal in every state but Missouri I think. But it certainly should be prohibited to create children by any means other than joining the unmodified, untampered-with gametes of a man and a woman.

[Big Bear Dave]

If California homosexuals really wanted to be effective in ending this "bias" then they should pack up with good old libertarians and either by the legislature or through vote reject the states ability to issue marriage licenses and leave it to the localities or as a contract between two individuals.

But that would be too logical and legally sound.

[Cloud]

@Reggie: Gay marriage already exists, whether or not you agree with it. Newsflash: you don't decide what words mean.

[Lee B.]

Procreation is required for marriage. Oh. Guess my husband and I, childless by choice and celebrating our ninth anniversary today, are not really married after all. Good to know.

[Vree]

It is against the law to marry your sibling. That only is logical if you can reproduce with your sibling. It is only logical if marriage is opposite gender. But what if one brother wants to marry the other brother? So you enforce the law selectively then?

We already have marriage equality. I am a man married to a woman. Any other man can marry a woman. I cannot marry another man. And neither can anyone else. That is equality.

[Ryu]

Al, You're free believe what you wnat,so Stop forcing your beliefs on everyone else as well.

[gaze r. better]

hahahahaha gay marriage is going to be reinstated. ha ha ha i am laughing so hard at all the wierdos against it because you guys are out of luck, salt lake city is nice, move there.

[Ryu]

Lee B,Good one.

[redhunter]

The question boils down to this: should the state be allowed to draw a circle around those people that are eligible for marriage? Namely, those inside the circle can get married and those outside the circle can't. If you say that the state can't do that becuase it violates "rights" or it is "descriminatory" then you have to remove the circle entirely, which means that marriage becomes meaninless since it can't be defined.

[Sir Gareth]

Lets just get rid of marriage and let the free sex begin; if it feels good do it. If perchance a viable sperm meets an egg simply auction of the whelp to the highest bidder. Marriage is about orgasms and the state has an interest in giving you tax breaks if yours are particularly habit forming.

The numbers, sexes, and species involved in the production of your satisfying orgasms are paramount; nothing else matters.

[Clint]

Ken: It's been recognized by the courts in determining the legality of inter-racial marriage, that marriage is a right that means nothing if one can't marry a partner of one's choice. You see, opponents have tried this argument before, and lost. Marrying someone of a different sex, if you are gay, is not the same right to choice that someone heterosexually oriented, is afforded.

The thing about marrying relatives, polygamy, pets, etc., proponents of Prop. 8 tried to distance themselves from. It seems ridiculous at this point. It's not an argument dealing with the issue at hand. It's not a reason to deny a right to a gay couple, or to anyone else. It doesn't stand alone as an argument, it's simply a diversion tactic.

Society doesn't have to be inclusive towards gay and lesbian people, you are correct, Ken. It may exclude. You mentioned how there isn't an obligation to make people feel good. However, why would that be anything but a good thing? Why shouldn't gay people feel good, just as heterosexuals feel good?What feelings are connected to excluding gay and lesbian people without a shred of a rational reason?

[busboy33]

@ryu:

"Cooper hadn't made good argument since day one."

To be fair to him, unfortunately in a purely legal-not-opinion way, there isn't a real good argument to make. Defending a prima facie claim of violation of rights with the legal equivilant of "because" or "so Mote it be!" is not too effective once you get down to brass tacks.

Propriety of gay lifestyle completely notwithstanding, they have a good legal argument, and made a damn good record for Appeal. The evidence is now closed on the issue . . . and Cooper couldn't really generate any. Do you think he didn't try? There really isn't that much empirical evidence that traditional "marriage" is legally relevant. I mean, what possible answer is there to "if the gays shouldn't get married because they can't procreate, why allow infertile couples to marry?".

Cooper couldn't answer that , not because he's a bad attorney, but because therre isn't a "good" answer to that question.

Doesn't matter if gay relationships should or shouldn't have that kind of societal recognition -- the law really is on their side. Cooper made the best argument he could.

[Ryu]

Vree, That's same argument as white man can marry another white woman, a black man can marry another black woman.That's equalitly.

[Scooter]

The homosexual marriage case has been framed as breaking down discrimination and promoting equality, right? However, the state doesn''t discriminate. Anyone can marry....provided the marriage is between non-related a male and female of consenting age. Now that the definition of marriage is being "expanded", what is to prevent further expansion? Why should the expansion then stop with pairings of two, non-related adults? When we open Pandora's Box, shouldn't EVERYTHING be allowed to fly out? Could someone explain why it should be closed after only the first thing flies out?