Closing Arguments in Marriage Trial

Closing Arguments in Marriage Trial
By JESSE McKINLEY
Copyright by The New York Times
Published: June 16, 2010
http://www.nytimes.com/2010/06/17/us/17prop.html?th&emc=th


SAN FRANCISCO — Lawyers made their closing arguments in the federal trial over the legality of California’s ban on same-sex marriage on Wednesday, framing the issue as a war between the civil rights of gay men and lesbians and the traditional understanding and role of marriage.

And tradition seemed on the losing end of the argument.

Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, repeatedly questioned lawyers defending the measure — Proposition 8, passed by California voters in 2008 — over their position that marriage is, simply put, for making babies.

“The marital relationship is fundamental to the existence and survival of the race,” said the defense’s leading lawyer, Charles J. Cooper. “Without the marital relationship, your honor, society would come to an end.”

But Judge Walker, who will decide the case, dogged Mr. Cooper for hard evidence of that claim, noting that there are no rules prohibiting marriage between people who cannot have children.

Over the course of several hours, Judge Walker also sharply questioned the qualifications of one of Mr. Cooper’s witnesses and his assertion that marriage “serves a societal purpose that is equally ubiquitous.”

At one point, Judge Walker wondered at Mr. Cooper’s logic. “Do people get married to benefit the community?” he asked. “When one enters into a marriage, you don’t say, ‘Oh boy, I’m going to benefit society!’ ”

The questioning seemed to occasionally fluster Mr. Cooper, whose voice rose as he told the judge that the central procreative aspect of marriage was commonly understood in legal writings, unless it “was written by one of their experts or written over the course of the last 30 years.”

Mr. Cooper added: “The pages of history, your honor, are filled with nothing — nothing — but this understanding of marriage.”

Wednesday’s arguments came more than five months after the beginning of the trial, which arose from a lawsuit filed last year by two same-sex couples who say that Proposition 8 violates their guarantees under the Constitution to equal protection and due process.

The case was initially met with skepticism by some in the gay rights community, who feared that a loss at a federal level could set back their efforts to gain wider recognition for same-sex marriage, which is legal in five states and the District of Columbia.

On Wednesday, crowds supporting just such rights began forming in front of the courthouse hours before proceedings were scheduled to begin.

The plaintiffs hired two experienced litigators from opposite sides of the political spectrum — Theodore Olson and David Boies, who had faced off in the Supreme Court battle Bush v. Gore, which effectively decided the outcome of the 2000 presidential election.

Mr. Olson, whose new interest in promoting same-sex marriage rights surprised some accustomed to his conservative politics, began his final statement by suggesting that a grievous harm had been done to his clients.

“This case is about marriage and equality: the fundamental constitutional right to marry has been taken away from plaintiffs,” he said. “Their state has rewritten its Constitution in order to place them in a special disfavored category.” He said it had rendered same-sex relationships as “not valid, not recognized and second rate.”

Mr. Olson also used a collection of video clips from earlier testimony, showing the plaintiffs speaking in emotional terms about their relationships, and likened Proposition 8 to laws that once forbade interracial marriage. He called the right to marry fundamental, not “an indulgence to be dispensed.”

“It is a right belonging to Californians,” he said. “It is not a right belonging to the State of California.”

Judge Walker also asked why Californians were not allowed to define marriage as between a man and a woman, as Proposition 8 did.

Mr. Olson stuttered a little before responding that Californians could define their own rules, “unless they are taking away a fundamental right.”

Judge Walker also asked why the state’s domestic partnership law, which affords most of the same rights as marriage, was not “sufficient accommodation” for the rights of gay people. Mr. Olson countered that marriage was a unique institution and more significant than domestic partnerships.

“It means something completely different,” Mr. Olson said.

Arguments in the trial began in early January, and included two weeks of evidence and testimony by plaintiffs and experts on marriage, sociology and political science.

The defense offered much more limited testimony, with two witnesses arguing, among other points, that same-sex marriage damages traditional marriage as an institution and that special judicial protections are unnecessary for gay people.

Judge Walker did not offer a timetable for his issuing his decision, but it is certain that his will not be the final word. Both sides expect the case to wend its way up the federal judicial ladder, most likely to the Supreme Court.

The closing arguments took place two years to the day — June 16, 2008 — that same-sex couples began to get married in California at the start of a five-month period when such unions were legal there. Proposition 8 ended those ceremonies, though the California Supreme Court ruled in May 2009 that the some 18,000 marriages performed in that period were still valid.

One of those couples, Shelly Bailes and Ellen Pontac, were at the rally. “It’s our anniversary,” said Ms. Pontac, who has been in a relationship with Ms. Bailes for 36 years. “And spending it here is not what we expected.”

Ms. Bailes said there was Champagne chilling at home. “It makes me feel good that it’s waiting for me,” she said.