Did The Proponents Of Prop. 8 Have An Argument During Yesterday’s Closing?

Attorneys Theodore Olson, second from right, and David Boies

Attorneys Theodore Olson, second from right, and David Boies

I’m still going through the closing arguments from yesterday’s Proposition 8 hearings, but I’m struck by how weak the other side’s case is. It’s truly empty of any reasoned argument or sound evidence. The proponents of the Proposition were relying on conventional wisdom and ‘the way marriages has always been’ arguments without explaining why it should stay that way or what harm would come to society if it changed. [Read the official transcripts: HERE]

The plaintiffs took a different track. Theodore Olson, the attorney for the gay and lesbian couples who filed the suit, looked back at the Supreme Court’s 14 or so decisions about marriage and found that the Supreme Court has said that marriage is the most important relation in life and questioned why that gays and lesbians were being denied that right without due process:

OLSON: It is the foundation of society. It is essential to the orderly pursuit of happiness. It’s a right of privacy older than the bill of rights and older than our political parties. One of the liberties protected by the due process clause, a right of intimacy to the degree of being sacred. And the liberty right equally available to a person in a homosexual relationship as to heterosexual persons. That’s the Lawrence vs. Texas case.

Olson goes on to quote from the testimony of Professor Nancy Cott, a marriage historian, who explained that the institution has been viewed this way by American slaves in the 1860s:

COTT: When slaves were emancipated they flocked to get married. And this was not trivial to them by any means. They saw the ability to marry legally to replace the informal unions in which they formed families and had children, many of them, to replace those informal unions with legal valid marriage in which the states in which they lived would presumably protect their vows to each other.

In fact, one quote that his tore I can’t answer have drawn out from the record because many of these ex slaves were illiterate of course but one quotation that was the title of an article a historian wrote it was said by an ex slave who had also been a union soldier and he declared the marriage covenant is the foundation of all our rights, meaning it was the most every day exhibit of the fact that he was a free person. He could say I do to his partner.”

The proponents of Prop. 8 dismissed these claims and insisted that marriage is about channeling naturally procreative sexual conduct “into stable and enduring unions” in order to “minimize what I would call irresponsible procreation.” Asked to substantiate the claim, Cooper replied, “your Honor, you don’t have to have evidence for this from these authorities” and suggested that “you need only go back to your chambers, your Honor, and pull down any dictionary, pull down any book that discusses marriage and you will find this procreative purpose at its heart wherever you go.”

Cooper was no less successful in demonstrating what harm same-sex marriage would pose to society or the institution of marriage; any negative effects were only speculative, he argued. “This could be profound. It could — it could portend some social consequences that would not be good ones,” he said. “And, Your Honor, that reality, the reality that I didn’t know, because no one can know, Professor Cott doesn’t know, Blankenhorn agreed, it’s impossible to be completely sure about a prediction of future events. There has never been anyone who knows what tomorrow will bring.” This fear of the unknown, Cooper insisted, represented a rational basis for preventing same-sex marriage. “But if there’s a legitimate and rational basis to be concerned about that, it couldn’t be more rational for the people of California to say, ‘We aren’t going to run that risk, however we assess it.’ There’s a risk. And we are going to wait. We want to see what happens in Massachusetts.’ We want to see what happens right here and elsewhere.'”