And Now We Wait: A Prop 8 Trial Update
By Katherine Dean
The landmark federal trial that will determine the constitutionality of California’s Proposition 8 concluded last Wednesday after five hours of closing arguments from both sides in the case. Ted Olson spoke for the plaintiffs, who are seeking to have Prop 8 overturned, while Charles Cooper argued on behalf of the state of California, where voters approved the ban on gay marriage in November 2008. A ruling is expected later this summer.
Though proponents of Prop 8 successfully campaigned to keep video cameras out of the courtroom, Equally Wed has documented the highlights of each argument.
Over the course of the hearing, testimony revealed that the plaintiffs and defense differed widely on the several important factors in the trial, including: the definition of marriage, the intent behind the passage of Prop 8, the outcome of changing marriage laws to include same-sex marriage, and the standard of judicial review each side is asking Chief U.S. District Judge Vaughn Walker to use in deciding the case.
Marriage: a legal form of prostitution?
Arguing for the Prop 8 supporters, Cooper repeatedly advised the court that the primary purpose of marriage is to “promote procreation and to channel narrowly procreative sexual activities between men and women into stable and enduring unions.”
Cooper’s line of reasoning asserts that because same-sex couples can’t “unintentionally procreate,” their relationships should not be regulated under current marriage laws. What Cooper left unsaid, but what naturally follows his argument, is that gays and lesbians should not enjoy the numerous benefits, monetary and otherwise, that flow from the institution of marriage, simply because they are responsible procreators.
Judge Walker didn’t sound convinced, explaining that “the state doesn’t withhold the right to marriage to people who are unable to produce children of their own,” noting that marriage “is a right which extends essentially to all persons, whether they are capable of producing children, whether they are incarcerated or behind in their child support payments. There really is no limitation except … a gender limitation.” Judge Walker went on to point out that “marriage regulation extends far beyond regulation of sexual conduct of parties.”
Cooper countered by explaining that gender is part of the “fundamental definition of marriage,” citing the Eight Circuit Court of Appeals (Citizens for Equal Protection v. Bruning). Cooper also cited the Supreme Court case that ended the ban on interracial marriage (Loving v. Virginia) as he declared that the state’s interest in regulating marriage is quite clear. “The right to marry is bound up with and proceeds from the fundamental nature and its fundamental purpose relating to procreation and the existence and survival of the human race,” he said.
Judge Walker posed more pointed questions to Cooper as well.
Judge Walker: “Why don’t those same values, which are values to society that you have described, apply to lesbian couples and gay couples? Coming together, supporting one another, taking care of one another, looking out for one another, being an economic unit, being a social unit, providing love, comfort and support for one another, why don’t all of those considerations apply just as much to the plaintiffs here as they apply to John and Jane Doe?”
Cooper stumbled to respond: “Those purposes, your Honor, are—we haven’t suggested there is a distinction among gay and opposite-sex couples with respect to those considerations.”
For the plaintiffs, Olson quoted expert witness Dr. Nancy Cott when stating that marriage isn’t just about procreation, rather it is “a couple’s choice to live with one another, to remain committed to one another, and to form a household based on feelings about one another and their agreement to join into an economic partnership and support one another in terms of the material needs of life.” Olson correctly asserted that the Supreme Court has repeatedly declared marriage “the most important relation in life” and a “fundamental right,” citing 14 Supreme Court cases (including Loving v. Virginia) that support his opinion and illustrate that marriage is not simply a license to cohabitate and procreate, as defense council argued.
Olson went on to explain that marriage is “the right of individuals, not an indulgence dispensed by the State of California, or any state, to favored classes of citizens which could easily be withdrawn if the state were to change its mind about procreation.”
Just what are your intentions?
Chief among the factors Judge Walker will weigh when issuing a ruling in the case is the intent behind the passage Prop 8. Olson asserted that Prop 8 was passed out of animus, that is, hostility toward gays and lesbians. Though Olson did not say that California voters possessed hostility toward gays and lesbians, he suggested that the thrust of the “Yes on 8” campaign was discriminatory. Cooper, on the other hand, argued that voters had plenty of rational, legitimate reasons (e.g. a belief that same-sex marriage could harm traditional marriage) to pass Prop 8 and that Olson’s claim of animus is a “slur on the 7 million Californians who supported Proposition 8.”
Olson: “It is revealing, it seems to me, that the deinstitutionalization message is quite different from the thrust of the proponents’ Yes on 8 election campaign. That, in the words they put into the hands of all California voters, focused heavily on: Protect our children from somehow learning that gay marriage is OK. Those are the words that the proponents put in the ballot—in the voter information guide that was given to every voter. That was not a very subtle theme that there is something wrong, sinister or unusual about gays, that gays and their relationship are not OK, and decidedly not suitable for children, but that children might think it was OK if they learned about gays getting married like normal people.”
Cooper: “…there are millions of Americans who believe fervently in equality for gays and lesbians, but who draw the line at marriage. Their hearts are, as I would submit to you, pure, as pure as defined by the plaintiffs. But they still believe this is profound. This could be profound. It could portend some social consequences that would not be good ones.”
For his part, Judge Walker consistently posed questions to Olson designed to shed light on when it’s appropriate for a judge to overturn a law that has been enacted by popular vote, suggesting that he is carefully weighing the right of the electorate in this case. Olson responded that intervention is necessary in cases that come down to “fundamental constitutional rights” and “treating people equally.”
What’s the big deal anyway?
During the trial, David Blankenhorn, founder and president of the Institute for American Values, testified for the defense that changing the definition of marriage to include same-sex marriage could threaten society with low marriage rates, high rates of divorce and non-marital cohabitation, and increased rates of children raised out of wedlock, who might command more of the state’s resources. At closing, however, Cooper seemed to backtrack slightly, stating that, “it’s impossible to be completely sure about a prediction of future events.”
Still, Cooper held firm to his argument, quoting Yale Law School Professor and same-sex marriage advocate William Eskridge, “Enlarging the concept of marriage to embrace same-sex couples would necessarily transform it into something new.” Cooper further illustrated what he believes are the fears of the electorate in California, “redefining it will effectively divorce the institution of marriage from its historic core procreative purposes.”
Olson, on the other hand, stated that marriage would be strengthened as a result of allowing same-sex marriage. Citing testimony from Blankenhorn, the state’s principal witness, Olson enumerated some of the benefits of legalizing gay marriage.
Olson: “In 2005, there were 37,000 of California’s children living in households headed by same-sex couples. The evidence was uncontradicted during this trial and overwhelming that the lives of these children would be better if they were living in a marital household. Even Mr. Blankenhorn, the proponents’ principal witness, agreed with that proposition … Mr. Blankenhorn admitted on the witness stand that same-sex marriage would yield numerous social benefits … He testified that it would decrease the number of those in society who would be viewed wearily as ‘other.’ In other words, not OK.”
Driving home his point, Olson quoted Blankenhorn from his book, The Future of Marriage, “We will be more American the day we permit same-sex marriage.”
Olson went on to question the defense’s assertion that permitting same-sex couples to marry would weaken or harm the institution of marriage for heterosexuals, stating that there was no evidence to support their claim. Instead, Olson maintained that other phenomena, such as no-fault divorce, weaken the bonds of marriage. Olson explained that gays and lesbians “desire to marry because they cherish the institution. They merely wish for themselves the status the State of California accords to their neighbors, to their friends, their coworkers, and their relatives.”
During closing arguments, both Olson and Cooper spent considerable time discussing the standard of judicial review that they believe Judge Walker should utilize when deciding the case.
Plaintiffs want Judge Walker to use “strict scrutiny,” which is the most stringent form of judicial review. Strict scrutiny comes into play when a law infringes upon a “fundamental right” or when the law involves using “suspect classification” (typically race but also national origin and religion) as a basis to target particular classes of people. When using the strict scrutiny standard to determine constitutionality, a law must serve a compelling government interest (such as matters of national security), be narrowly tailored, and be the least restrictive possible measure for achieving the compelling government interest. Olson argued that preventing gays from marrying does not serve any government interest; instead, he suggested that the law is based on speculation, stereotypes and the hypothetical.
Cooper argued that strict scrutiny should not apply in this case because gays and lesbians do not meet the criteria that determine suspect classification. Though Cooper acknowledged that gays and lesbians have historically been the subject of discrimination, he argued that sexual orientation is not an immutable characteristic but is, in fact, fluid and can change over time. Essentially, Cooper suggested that gays and lesbians choose their sexual orientation.
Cooper has good reason to fight against using the highest level of judicial scrutiny. In cases where strict scrutiny is used to determine a law’s constitutionality, the law in question is almost always struck down on the basis of discrimination.
Arguing for the state, Cooper asked Judge Walker to instead use rational basis review, which is the lowest standard of judicial review. To pass rational basis, a law must only be “rationally related to a legitimate (but not necessarily compelling) government interest.” Cooper argued that the state’s interest in limiting marriage to opposite-sex couples is to promote procreation. Laws that are evaluated using the rational basis test are almost always upheld.
Cooper further argued that, “No Court of Appeals case has ever applied anything other than rational basis review to a sexual orientation classification. And out of 40 some-odd district court cases, only four have done so and all four have been reversed.”
Olson questioned whether Prop 8 satisfies even the rational basis standard, citing Romer v. Evans. “‘Under the lowest standard of review, you have to prove that you have a legitimate interest and that the object,’ Proposition 8 in this case, ‘advances that legitimate interest.’ So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation?”
So now we wait. Equally Wed hopes Judge Walker sees the big picture and rules in favor of marriage equality, because, let’s face it, nobody gets down on one knee and humbly asks the love of their life to make them the happiest person alive by agreeing to channel their procreative relationship into a stable and enduring union. We all know that marriage is about so much more than that and it’s past time that we guaranteed equality for all. Still, however Judge Walker arrives at his decision, the case will likely be appealed, first in the Ninth U.S. Circuit Court of Appeals and, most likely, in the Supreme Court.
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