Prior to closing arguments in Perry v. Schwarzenegger, popularly known as "The Prop 8 Trial," Judge Vaughn R. Walker issued a series of questions for each side to answer in closing arguments.
[As a note of term usage, I will refer to the pro-Prop 8 side, which is the side opposing same-sex marriage, as the "marriage defense" side. The scare quotes are mine, as I obect to the notion that the moniker "marriage defender" is an accurate term for this advocacy.]
The official transcript of the arguments which address some of the above questions, can be read here [PDF] From the transcipt, I have pulled some interesting tidbits.
To begin, attorney Olson- representing the side seeking to overturn Prop 8, summarized the position of the "marriage defenders." Namely, attorney Cooper and (arguable) expert witness David Blankenhorn argued that the central and defining feature of marriage was to "promote procreation and to channel procreative activities between men and women into stable, enduring unions."
The "marriage defenders" further argued that permitted same-sex unions would diminish the procreative aspect of marriage and/or denigrate the institution of marriage because (a) same-sex marriage would "change" marriage and (b) would "likely lead to very real social harms, such as lower marriage rates and high rates of divorce. These claims, Olson noted, differed from the claims the "marriage defenders" made during the Prop 8 campaign, that Prop 8 was necessary to "protect the children" from learning about gay marriage, a message grounded in the idea gay people "are not okay." Olson noted that during trial, the "marriage defenders" presented no evidence that any of the harms they claimed would befall society would actually occur and that attorney Cooper admitted that they were mere predictions.
Olson continued that 14 Supreme Court cases have defined marriage and that, contrary to the definition of marriage advocated by "marriage defenders," nowhere is the right to marry conditioned on or tied to procreation. Further, and this is a really important point, although the right to marry belongs to individuals, individuals could not collectively- via referendum- take away the fundamental right that same-sex couples have to marry in the absence of a compelling government interest for prohibiting same-sex couples from marriage. In response to the Judge Walker's question as to when was the appropriate time for the judiciary to weigh in on legislative and sensitive political issues, Olson elaborated that this trial has shed light on what the purposes of Prop 8 were, whether they were legitimate, whether the measure was under- or over-inclusive in targeting only same-sex couples, all of which would reveal whether or not it is constitutional.
Olson then powerfully re-played the testimony of several witnesses, including that of "marriage defender" Blankenhorn, who admitted that the elimination of discrimination and stigma that would result by allowing same-sex marriage would be a victory for the American ideal and that same-sex families would be better off for it.
It is uncertain as to what level of scrutiny Judge Walker will apply to this case. Cooper is arguing for the lesser standard of rational basis, while Olson argued for a higher level of strict scrutiny. In making this argument, Olson made a point that isn't much noted. Usually, the denial of marriage equality is framed as anti-gay discrimination. Yet, Olson aptly argued that it is also sex-based discrimination in that a person's choice of a marriage partner is "foreclosed on the basis of sex." Classifications based on sex require heightened scrutiny.
In sum, I found Olson to be persuasive, handling Judge Walker's questions well. I don't have a ton to say about his testimony, as I agree with much of it. Tomorrow's post, summarizing and analyzing attorney Chuck Cooper from the "marriage defense" side promises to be more engaged. Thursday, I will review the standard of review.