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Just Out: Prop. 8 Closing Arguments

by Roger Brigham
EDGE Media Network Contributor
Tuesday Jun 15, 2010

"Love" vs. "stability" appears to be the mantra for both sides, as attorneys filed their responses to questions in the federal challenge to California's ban on same-sex marriage for Northern District of California Chief Judge Vaughn Walker on Tuesday, June 15--the eve of closing oral arguments.

In his 50-page response, Charles Cooper, lead attorney for supporters of Proposition 8's same-sex marriage ban, uses the words "love" or "loving" two times and the word "stable" 17 times. Ted Olson, one of the lead attorneys for the two opposite-sex couples seeking to overturn the ban, in his 44 page response, uses "love" or "loving" 10 times and the word "stable" three times.

That contrast shows one of the clear cultural divides under the legalistic arguments on how the sides view marriage--as a committed relationship between two adults or as a foundational rock for societal organization.

Walker had provided 12 questions for the challengers, 12 for the proponents, and 15 for both sides to be answered in Wednesday's oral arguments wrapping up the trial. In his response, Olson chose to answer all 39 questions, including the ones addressed to his opponent.

"Proposition 8 furthers these (state) interests by preserving the traditional definition and form of marriage and by providing special encouragement increasing the likelihood that children will be born to and raised by their natural parents in stable and enduring family units," Cooper responded to the first of Walker's questions.

Olson's response: "There is no evidence in the record to suggest that Prop. 8 is even rationally related to a legitimate government interest‚ let alone substantially related to an important government interest or narrowly tailored to further a compelling government interest. To the contrary, Prop. 8 causes irreparable harm to gay men and lesbians and their families, and is fundamentally discriminatory."

Cooper argued that the fact that the state allows infertile couples to remain married does not undercut the importance of defining marriage as restricted to opposite sex marriages.

"Allowing such couples to marry does further the State's interest in increasing the likelihood that children will be born to and raised by their natural parents in enduring family units because it reinforces social norms that seek to channel intimate heterosexual relationships into marriage - relationships that in most, if not all, cases are capable of producing offspring either intentionally or unintentionally," he wrote.

"Same-sex couples and opposite-sex couples are not similarly situated with respect to the state's interest in channeling potentially procreative relationships into stable and enduring family units, intermediate scrutiny does not require the State to prove that limiting marriage to opposite-sex couples is 'necessary' to further this interest or even that extending marriage more broadly would not 'serve that goal equally well.'"

Olson countered, "No evidence in the record shows that same-sex couples are differently situated from opposite-sex couples where at least one partner is infertile. In fact, Plaintiffs presented testimony from Dr. Anne Peplau establishing, based on years of research, that same-sex couples and opposite-sex couples are fundamentally the same in terms of their relationships, what they are looking for in a relationship, and what makes the relationship successful or unsuccessful."

Asked what would be the "negative social consequences" of allowing same-sex marriage, Cooper wrote the evidence "strongly suggests that redefining marriage to include same-sex unions will change the public meaning of marriage in ways that will weaken the social norms that seek to discourage procreative sexual relationships and childrearing outside of marital bonds.

"Redefining marriage in this way would also change its focus from the needs of children to the desires of the adult partners, suggesting that the latter are paramount, as well as weaken the social understanding that, all else being equal, what is best for a child is to be raised by its married, biological parents and to have a mother and father," he continued. "All of these changes are likely to reduce the willingness of biological parents, especially fathers, to make the commitments and sacrifices necessary to marry, stay married, and play an active role in raising their children. Extending marriage to same-sex couples would likely accelerate and perhaps even complete the 'deinstitutionalization of marriage.'"

Olson responded that no evidence submitted "could support a finding that marriage by individuals of the same sex would in fact have negative implications." He pointed to one of his star witnesses, Dr. Nancy Cott, who "testified that allowing gay men and lesbians to marry would fulfill the key defining characteristics of the institution of marriage, and that by excluding same-sex couples from the ability to marry and engage in this highly-valued institution ... society is actually denying itself another ... resource for stability and social order."

As to which party must prove its case, predictably both said the other guy. Olson said the proponents must make their case because same-sex couples were being denied their constitutional rights; Cooper said the challengers must make their case because "same-sex marriage is neither 'objectively, deeply rooted in this nation's history and tradition' nor 'implicit in the concept of ordered liberty.'"

Cooper wrote that because the pros and cons of same-sex marriage have provoked hot public debate, the courts cannot step in and change the mandate of the electorate. But Olson said the debate is irrelevant: "The fact that some segment of the population may strongly support a discriminatory measure‚ and may be engaged in a public debate on the issue‚ cannot conceivably shield the law from the requirements of equal protection.

Perhaps the most tantalizing of the attorney's responses were their answers to the judge's final question: If Prop 8 is found unconstitutional, what remedy would "yield to the constitutional expression of the people of California's will?" In other words, if the judge finds the ban to be wrong because it creates different classes of people (such as the 18,0000 same-sex couple who were married in the months before Prop 8) or because it is, on the face of it, without state interest at its heart, what should he do?

Olson said that nothing short of an immediate order stopping Prop 8 would suffice: "If a state constitutional provision is inconsistent with the Fourteenth Amendment of the U.S. Constitution, it can no longer be given effect, regardless of its level of public support."

Copper suggested tossing out all of the same-sex marriages now recognized by the state, making retroactive a proposition that was approved by the people when they were told it would not be retroactive.

"If, as Plaintiffs maintain, Proposition 8 cannot be reconciled with its own non-retrospective application, as interpreted by the California Supreme Court, or with any other feature of California law, " he wrote, "the remedy that would 'yield to the constitutional expression of the people of California's will' is sustaining Proposition 8 by giving it retrospective effect."

Oral arguments begin Wednesday at 10 a.m. and are expected to conclude shortly before 4 p.m. A decision is expected from Walker within a matter of weeks. Any decision is likely to be appealed all the way to the U.S. Supreme Court.

Roger Brigham, a freelance writer and communications consultant, is the San Francisco Editor of EDGE. He lives in Oakland with his husband, Eduardo.


Comments

  • angel, 2010-06-16 10:58:49

    Copper’s arguments are flawed in so many ways according to him if children can only be with their real parents then children in orphanages must not be adopted...it’s so comical to even read these anti gay arguments


  • alonenomore, 2010-06-16 21:51:44

    Cooper seems to be pandering to the notion that the only union in marage can be possible in the union of seperate sex partners. The possibility of a steady relatioship in a same sex union can be a union of commiting is imposible and can not be a true union.


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