Final Arguments Made in Proposition 8 Trial

SAN FRANCISCO (June 17) -- Attorney Charles Cooper made his final argument that California's ban on same-sex marriages should be upheld as constitutional by telling Chief District Judge Vaughn Walker: "Your honor, you don't have to have evidence for this."

The judge appeared mildly surprised. But Cooper's novel argument was in keeping with the minimalist defense he and his legal team mounted to uphold Proposition 8, which outlawed same-sex marriage in 2008. During the trial phase in January, the defense called only two witnesses.

In his closing argument Wednesday, Cooper made the case that marriage has traditionally been defined as between a man and a woman. There is no compelling reason to change that today, he said.

"You only need to go back to your chambers and pull down any dictionary or book that defines marriage," Cooper told the judge. "You won't find it had anything to do with homosexuality."

Walker is preparing to rule in the case brought by a gay couple from Burbank and a lesbian couple from Berkeley who contend that Proposition 8 violates the equal protection clause of the Constitution by denying them the right to marry the person of their choice.

The case is widely expected to reach the U.S. Supreme Court.

The plaintiffs were represented by former Solicitor General Theodore Olson and lawyer David Boies, who came to prominence in 2000 when they represented presidential candidates George Bush and Al Gore in the Florida election recount case.

The Proposition 8 trial began in January with 12 days of testimony, primarily from the four plaintiffs and their experts on such subjects as psychology and the history of marriage. Walker, who is hearing the case without a jury, delayed closing arguments until Wednesday but is expected to issue his ruling in the next few weeks.

In his closing argument, Olson argued that the time was right to end discrimination against gays and lesbians who want to marry, comparing the case to the 1967 Supreme Court decision finding it unconstitutional for states to prohibit mixed-race marriages.

Fourteen Supreme Court decisions dating back to 1888 establish marriage as a fundamental right protected by the Constitution, Olson said, and every American should have the right to marry the person of his or her choice.

"Proposition 8, on its face, discriminates against a class of individuals and takes away rights based on sexual orientation," he said.

Olson also argued that allowing gays and lesbians to marry would not undermine the marriages of straight people, an argument advanced by supporters of Proposition 8.

"Heterosexual people are not going to stop getting married or stop having children or abandon their marriage because the next-door neighbor has a same-sex marriage," he told the judge.

Cooper, however, argued that the purpose of marriage is procreation and that same-sex marriages should be banned because gay and lesbian couples cannot naturally produce children.

"Responsible procreation is at the heart of the state's interest in regulating marriage," he said.

Cooper noted that 7 million people voted for Proposition 8 and said that more than 70 judges at various levels have supported bans on same-sex marriage in other cases.

After Cooper asserted that he did not need to present evidence, Walker questioned his approach to the case and the lack of expert witnesses called to testify on the legal and social issues in the case.

"Seven million Californians, 70 judges and this long history that you described," the judge said. "Why did you present but one witness on this subject?"

Moments later, Cooper made a point of telling the judge that he did not know what effect banning same-sex marriage would have. "I don't know," he repeated several times.

The judge then questioned whether that was an adequate argument when denying some citizens their constitutional rights. "I don't know where this is going to lead," Walker said, summarizing Cooper's argument. "Is that enough to impose restrictions on some citizens that other citizens don't suffer?"

During his opportunity for rebuttal, Olson sought to demolish the defense's legal premise.

"Mr. Cooper: 'We don't know. We don't have to prove anything. We don't have any evidence,'" Olson said. "You can't take away the rights of tens of thousands of persons and come in here and say, 'I don't know' and 'I don't have to prove anything.'"

Olson sprinkled his argument with references to witness David Blankenhorn, founder and president of the Institute for American Values, who testified for the defense as an expert on marriage but ended up being more help for the plaintiffs.

The attorney cited Blankenhorn's cross-examination in which he admitted that children of same-sex marriages may be better off than children of heterosexual marriage and that legalizing same-sex marriages would benefit them even more.

Olson played a video of Blankenhorn's most telling remark: "We would be more American on the day we permit same-sex marriage than we were on the day before."

Throughout the day, Olson referred repeatedly to that statement. "Mr. Blankenhorn is absolutely right," he said. "The day that we end that we will be more American."

At one point, the judge questioned Cooper about whether Blankenhorn should be admitted as an expert witness, given that he had never published a peer-reviewed work on the question of marriage.

Cooper seemed flustered as he tried to explain that Blankenhorn was sympathetic to gay rights but believed that the harm same-sex marriage would cause to society would outweigh the benefit to gays and lesbians.

"There are many millions who believe fervently in equality for gays and lesbians but draw the line at marriage," Cooper said. "It could portend some social consequences that would not be good ones."