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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 () | Archives (120)

In contrasting homosexual marriage with incestuous marriage, you bring the children into the argument. However, the marriage isn't about children, it's about "whom you love". Let the incestuous couple adopt children, as would the homosexuals. That would then bring the argument back to the matrimony, itself. Please, voice your rationale of permitting a binary union, while precluding that of three or more. I'm interested.

@ MajBuck

"Eventually you will conclude that heterosexual marriage is the only union that promulgates the species."

Really? I'm pretty sure that humans can "promulgate the species" through either:
1. A fertile man and a fertile woman doing it, without birth control/contraception
2. In vitro fertilization
Weird, neither of these options is exclusive to heterosexual marriage OR heterosexuality. So heterosexual marriage is not the only union that promulgates the species.

"The society, if wealthy enough, could tolerate homosexuality."
Prominent historian John D'Emilio has argued something to this effect. He says that homosexuality has always existed, but the conditions created by industrialized capitalism (individual labor, cities, male and later female liberation from family units) allowed gay people to express their desires and still be able to survive in our society. Looks like your problem is with capitalism, not homosexuality.

"But when survival is threatened, homosexuals had better prove their contribution to society is more than partying and complaining."
What do you think we're doing when we're paying taxes, adopting children (the majority being the result heterosexual unions), fighting in the military (despite its discriminatory practices). Ah yes, just 'cuz we're not popping out babies out our crotches like a BB gun means we aren't contributing to society. Never mind that the world is vastly overpopulated and children are dying every second from malnourishment, starvation, and illness. Because our only contribution to society is having lots and lots of babies. Right. I guess you'd better look down on my parents' 25 year marriage; I'm an only child!

"Can anyone deny logic that homosexual unions, as an institution, has no interest in either promulgation nor nurturing posterity? Can anyone deny logic that heterosexual unions have as society's primary function to promulgate and nuture posterity?"

Yup. See above, or any of Judge Walker's questions and Olson's arguments (based in legal precedent) if you find my arguments lacking. I think what you're trying to argue in your post is that society promotes "traditional" marriage because ideally it provides a stable environment for the next generation. But in reality, man and women don't have children as a product of their relationship. In reality, man+woman doesn't always mean a stable environment. In reality, people don't get married and say "Great! Now I can benefit society by promulgating the species!" They say, "Great! I've just pledged my commitment to the person I love. I can't wait to spend the rest of my life with them. Maybe we'll raise a family, maybe not. The only thing on my mind right now is the love of my life!"

I think maybe you, and the other pro-Prop 8 posters, need to fully evaluate what the value of marriage is (and life) before making decisions about what gay people can and can't do. Sidenote: Until the rational discussions taking place in the San Francisco courtroom take place in every voter's head, we can't put civil rights on the ballot.

If one part of our Constitution says that you have to treat everybody the same, and another part of our Constitutions says that gays cannot marry, then it seems logical that the only thing you can do is ban all marriage. If "domestic partnership" is good enough for the Prop 8 voters, then "domestic partnership" should be good enough for everybody.

If somebody wants to have their relationship recognized outside of California, then they will have to go to another state to get married, just like the gays. As Abraham Lincoln said, "those who deny freedom to others, deserve it not for themselves."

I'm sure that's what Prop 8 voters were voting for, because with any other interpretation, Prop 8 is just hate.

@ Brian

"The line has been drawn...period. Non relative adult Man and adult Woman can marry. At what point do we leave it at that? Are we not infringing on the rights of an individual who wants to marry a 13 year old? But they love each other, don't hate them, there's nothing wrong with it!! What if they are brother and sister? Mother and son? Father and son? Brother and Brother? Why do the people who want gay-marriage only limit their fight to appease them? What about the rights of those I just mentioned? Where's the verbage to include them? Do you think that the unions mentioned earlier are gross? Weird? Unnatural? Different then what you believe? Why not put up a fight for all those who choose an "alternative lifestyle"?

Now who's the bigot?"

Er, that would be you. Not even "marriage-defenders" use the slippery slope fallacy anymore, because they realize that it's impossible to argue that marriage equality will:
1. Suddenly grant 13 year-olds the ability to consent as an adult
2. Make people think incest doesn't cause genetic defects (since apparently, marriage is all about baby-makin')
Food for thought: you can marry your first cousin in more states than you can get married to someone of the same sex...

Yeah, I think that incest is gross, but I wouldn't challenge the rights of someone who engages in incest. An adult doing it with a 13 year old is disgusting because that child is not capable of making reasoned decisions and is being taken advantage of. Being gay could be considered gross, weird or "unnatural," but you can't discriminate because of that. I think religious extremists who try to convert me are gross, weird, and unnatural but I'm not gathering signatures to put their rights on the next ballot.

Finally, as a homosexual, I've got to say that I had no choice in the matter. I didn't even know the word homosexual existed when I hit puberty. So I find it hard to believe you think being gay is a choice. What did you think happened, I rolled out of bed on October 17th, 2003, thought to myself, "Huh, I think I'll wear the blue shirt and maybe feel attracted to females" and went on my merry way? I challenge you to go "gee, women are getting a little tiring, I think I'll settle down with a man" when you wake up tomorrow. See how that goes.

I love all this talk about a "traditional, historic" definition of marriage, and upholding the sanctity of it.

Really? Where is the sanctity in 50% of divorce rates, in heterosexual marriages? Versus the 8% in homosexual marriages? Interesting.

Marrying your brother or sister actually has negative implications for society. A child from such a union would have an enormously high percentage of having some kind of congenital defect, such as Down's Syndrome or Autism, simply because genes weren't meant to be mixed in such a manner.

What are the negative implications of Peter and Paul wanting to get married? A sudden surge in incestuous couples running to get married? Perhaps human-animal couples? The tyranny of the majority shouldn't be allowed to decide who you get to spend the rest of your life with. Nor if you should be excluded from all the tax benefits and societal benefits of having the "M word".

Vince Lopez,

I think it's hilarious that you would quote Lincoln parallel to your argument about democracy at its finest, especially since Lincoln declared a state of martial law, and basically "put the constitution in a hole" and did whatever he felt was necessary.


If society is really at stake here we'd outlaw a plethora of things and start with disposable diapers used by millions of heterosexuals across the world who are hell-bent on destroying the natural order to the environment which sustains us. But I guess if you think Armageddon is upon us then you'll be saved from swimming in toxic waste with which we continue to burden the earth.

I think it's fine if we say the gays can marry, but we should stop the disgusting and filthy act of reproducing - particularly by those people who are fat or have IQs lower than 100. That would clean things up much more than attacking the gays. Of course the church needs something to get their constituents riled up about or they wouldn't sustain themselves financially.

"its main focus is procreation and “channeling” the sexual behavior of heterosexuals into “stable, marital unions.”"

That is the dumbest argument ever.

If it wasn't the law screwing me over for not being married to the father of my children, I wouldn't have had to get married in the first place. My commitment to my husband has nothing to do with my marriage license. In my heart, where it really counts, I've been his wife for a lot longer than we've been married. Signing a marriage license only forces the legal system to recognize my status as such.

Over a thousand years ago, the Christian world wreaked havoc on those of pagan faiths. Now, we have anthropologists, museums, grants, universities, etc. that protect and relish in the lasting groups of people that share less universal faiths. These people and their faiths, different from many of ours, are perceived as valid and important. Fast forward a generation or two and we have the Crusades and the Inquisitions. Invading countries based on demolishing and/or suppressing religion is generally regarded as a negative these days...as is burning people alive for not being Catholics. The Salem Witch Trials took a group of women that were misunderstood and burned them alive or drowned them in lakes because they were feared for being "different," "immoral," etc. Last time I checked we had pretty much ruled out witchcraft and decided that those women should have been spared. Fast forward again...slavery. While considered reasonably common 175 years ago, most of us (hopefully all) have come to the conclusion that that slavery was wrong. Almost modern times...A woman's right to vote. Well, there was a time a woman had no need for a vote as long as she had a husband...last time I checked we had decided that that line of thinking was, well, wrong. Japanese internment while fighting WWII and the oppression and genocide of an entire religious group...somewhat hypocritical. African Americans not having to vacate their seat on a bus for a white person...that's a good thing...Rosa Parks taught us that. Martin Luther King had a dream and now we celebrate the dream with a holiday every year, the same dream that led to many being sprayed with fire hoses and beaten in Southern streets. Well, here's my point: HISTORY IS RIDDLED WITH SITUATIONS WHERE PEOPLE HAVE DENIED A GROUP OF PEOPLE SOMETHING SIMPLY BECAUSE THEY FEARED WHAT WOULD HAPPEN IF PEOPLE "DIFFERENT" FROM THEM WERE GIVEN THE SAME RIGHTS. If you are a woman who thinks gay marriage is wrong but you enjoy having the right to vote, I would ask you this question: Is being told one can't enjoy the same govt/tax/social rights as you, simply because they have a type of relationship that you do not wish to enter into, quite similar to a time when you would be denied your opinion and be at the complete will of another simply because you were a woman? Perhaps people are born gay the same way certain people are born female. Based on that argument alone, I surely expect a large rally of chauvinist men demanding to rescind a woman's right to vote tomorrow. Or else, well, the whole "anti-gay marriage thing" is a farce. While all of the pro-prop 8 are reading, which I hope they are, lets go ahead and repeal civil rights too, create a state imposed religion, ...or lets just burn all that don't agree at the stake (please note my sarcasm). Denying a group of people equal freedoms is the only right answer (yet again, sarcasm). When a heterosexual couple marries they are not grilled about their desire to have children. If a couple plans to marry but not, as the article states, "to provide society’s approval to that sexual relationship and to the actual production of children," then, well, they shouldn't get married either. 50 years from now there will be a figure deemed a hero. He or she will be the face of the gay rights movement. He or she will be in textbooks, there will be a holiday. And for those who spent their time desperately arguing against gay rights, there will be a place for you...The Inquisitors, slave owners, bigots, and chauvinists surely need more company.

@ PATRICK: I am a Christian (Episcopalian); I am legally married to my same-sex partner of 36 years. Do not presume to speak for all Christians.

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

It's pretty obvious what will happen here. If "Judge" Wlaker rules in favor of gay marriage, despite the will of the voters, the case will go to the Supreme Court. If the ruling is for the voters, then the case ends. How far will Walker go here? Offering up witnesses is just providing loopholes for the opposition. Walker bno doubt will attempt to delay his ruling as long as possible, hoping the composition of the Supremem Court may change...

I was married for almost 20 years. I couldn't have children and my husband didn't want children. Based on the arguments for measure 8, we shouldn't have been allowed to marry. Since I can't have children and my marriage to a new man would not reinforce the bonds of a family, should I be excluded from marriage.
I think that all "marriages" should be a legal contract between two people and the couple can choose if they want to have a religious ceremony to make it a "marriage" under God. It would take away the reasoning behind measure 8 and all other anti civil rights "marriage" measures.
As Rodney King once said, can't we all just get along

"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."

Just imagine Reggie and everybody else who has made this stupid argument back in time 90 years, when women's suffrage was the issue, and declaring "It's all right for women to cast ballots in elections, but they can't call it voting."

Tell you what, Julian Lee: you personally see to it that every child is born within wedlock, and then maybe you'll find yourself with a legitimate argument.

It's not really fair to say that gay couples "pilfer" children. Usually the heterosexuals responsible for the children's existence are only too willing to make the sacrifice. (I take it that in your neat, tidy little fantasy world, there's no such thing as "adoption" except in the case of the both parents' deaths.) However, if you're so interested in the well-being of children which allegedly can only be brought about by their being raised by their biological married parents, quit demonizing homosexuals and start work on a "You bore it, you raise it" law making single parenthood and out-of-wedlock childbirth felonies. Let's see how quickly "the people" rush to the ballot box to ratify that!

Indeed, mark pederson, singularly defining marriage as one-man-one-woman doesn't preclude marrying your sister.

Gee, Al who loathes liberals but loves majorities, if a majority of your coworkers demanded that you be fired, would you be okay with that? Speaking of "deviant" behavior, if you think heterosexuals engage exclusively in what is known as vanilla sex, no weird stuff, you must be a 40-year-old virgin whose mommy told you she got you on eBay.

I'd answer some more of these silly arguments, but it's getting late and I'm tired. (So are many of these arguments.) Okay, one more: Vree, that "equality" bit doesn't quite wash. It's like saying everybody has the right to vote as long as they vote Republican. Or that women and people or color cannot be discriminated against only if they pretend to be white men.

The judge could ask the same questions about polygamy, child marriage, or selling babies. He KNOWS that the answer is that the state has a right to regulate social relationships in order to promote the best interests of society. "Compelling public interest" is the standard, and the judge was making a show out of pointing out how poor a job the attorney had done in making the case. If the case was well argued, and deeper evidence presented, the judge would have been forced to uphold the law; instead he is laughing at how easy it is for him to overturn the law.

Why is the Judge more interested in posturing and lecturing than seeking true justice?

If the state is financially so much under water, if there aren't any biased motives against gay people, and provided you are secure in your sexuality living a fulfilled life, do you really care what your neighbor does? If it brings both happiness and revenue, let people get married and live happily ever after.


Actually, a civil union doesn't give you all the rights that marriage does..

With all said and done, gay marriages are against God law.
Read the bible people, gays will pay a very, very high price. Marriage is and will always be between a man and woman.

Any way you say it, write it, fight it, God Law is god law, no person or persons can change that.

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