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Prop 8 trial: Judge troubled by lack of evidence from defense
By Howard Mintz
SAN FRANCISCO — In five hours of legal arguments Wednesday, the federal judge now considering the legality of California's ban on same-sex marriage did not tip his hand on how he will ultimately rule in a case that appears destined for the U.S. Supreme Court.
But after a three-week trial in January, thick cartons of legal briefs filed by both sides and transcripts filled with every imaginable view of gay marriage, it was clear that Chief U.S. District Judge Vaughn Walker is perhaps troubled most by what he has not heard — concrete evidence from backers of Proposition 8 that the law is a constitutional way to protect traditional marriage.
That was the unmistakable theme of much of Wednesday's
arguments, which were filled with tough questions for both sides from Walker but distinguished by his open amazement at the lack of evidence from Proposition 8 defenders, who presented just one witness to counter almost two solid weeks of testimony from the plaintiffs. The closing arguments marked another crucial moment in the unprecedented trial, the first federal court test in the nation of a state's right to forbid same-sex marriage.
"Why," Walker asked Proposition 8 lead attorney Charles Cooper, "did you present but one witness on this subject?"
The question came as Cooper tried repeatedly to argue that voters backed the gay-marriage ban in 2008 to preserve the traditional definition of marriage and limit the institution to
heterosexual couples. Proposition 8 defenders have always relied on the procreation argument, that the purpose of marriage is for couples to bear children — and so it is legitimate to outlaw same-sex marriages that cannot serve that purpose. But Cooper stressed it more than ever Wednesday, saying it was "fundamental to the survival of the human race."
For defenders of the same-sex marriage ban, the argument is critical. Plaintiffs in the case maintain that Proposition 8 was fueled by discrimination and animus against gays and lesbians, and has no legitimate state purpose. Cooper was trying to rebut that argument.
But in the trial's first phase, Cooper put on one witness whom the judge is considering disregarding altogether because his credentials as an expert are in question. And that one witness did not testify on the procreation argument.
"What testimony in this case supports the proposition?" Walker asked.
"You don't have to have evidence of this," Cooper replied.
Walker asked why it is OK for the state to allow infertile couples to marry, but not gays and lesbians. "It's not quite the same," Cooper said, insisting that even heterosexual couples who can't bear children further the traditions of marriage.
Walker may still rule that the state can restrict the definition of marriage, even with the scarcity of evidence from the Proposition 8 side. But former Republican U.S. Solicitor General Theodore Olson, who represents two same-sex couples seeking the right to marry, pounced on Cooper's position in his later arguments.
"You have to have a reason," Olson said of denying same-sex couples marriage rights. "I don't know, and I don't have any evidence, doesn't cut it."
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