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Where's the Evidence? Judge Asks Proposition 8 Supporters

Packed San Francisco courtroom hears highly anticipated closing arguments in same-sex marriage case. Charles Cooper, the attorney defending a federal challenge to Proposition 8, came to San Francisco to deliver his closing argument on same-sex marriage Wednesday.



But Chief Judge Vaughn Walker made it feel much more like a cross-examination. Walker closely questioned Cooper about his trial presentation, including why his side called only one witness to testify about the institution of marriage. Where Cooper's counterpart, Theodore Olson of Gibson Dunn & Crutcher, was able to deploy lofty rhetoric with less interruption, Cooper was stuck parrying Walker for about two hours.

At one point, Walker asked Cooper to recount the trial evidence showing that marriage is designed to encourage procreation. That's the central reason Prop 8 supporters cite as why voters have a rational basis to ban gay marriage. But as Cooper named different expert authorities, Walker interrupted.

"I don't mean to be flip," Walker said, but the people Cooper named didn't actually come to testify.

"Your honor, you don't have to have evidence of this from the authorities," Cooper said, adding that case law is enough.

"You don't have to have evidence?" Walker asked quietly.

The exchange pointed up a key fault line running through the case, in which four gay plaintiffs are seeking to have California's Prop 8 invalidated. From the beginning, Cooper and other conservative legal thinkers argued against the need for a trial, saying case law alone dooms the complaint to fail. Even Olson was skeptical of Walker's plan at first.

The trial lasted for three weeks in January. And on Wednesday, Olson complimented Walker for holding it, because Olson said it demonstrated the evidence heavily favors the plaintiffs.

Walker seemed to agree. A moment after his comment about the evidence, Cooper said the plaintiffs' accusation that anti-gay marriage thinkers are motivated by animus slurs 7 million Californians and scores of judges. "It denies the good faith of Congress," Cooper added, referring to the Defense of Marriage Act.

Given all that, Walker rejoined, "Why in this case did you present but one witness?"

Olson picked up on these exchanges in his rebuttal, saying voters must have a good reason for denying same-sex partners the fundamental right to marriage.

"With all respect to Mr. Cooper, 'You don't have to put in any evidence' does not cut it," Olson said.

Walker's courtroom was packed for the highly anticipated closings, with federal marshals strictly regulating the traffic flow. But the atmosphere was somber and hushed, especially compared to the plaza outside, where a group of young actors staged a dramatic re-enactment of trial testimony to a crowd of onlookers.

In addressing Olson, Walker seemed concerned about the courts overstepping their role. He alluded to the U.S. Supreme Court's 1973 decision legalizing abortion, which took the issue out of the political realm and engendered years of acrimony.

"Isn't the danger in your position, not that you're going to lose this case -- either here, at the 9th Circuit or at the Supreme Court -- but that you're going to win it?" Walker asked.

The marriage case involves a fundamental right, Olson replied, like the one allowing interracial marriage. Civil rights activists have always been told to move more slowly, he said.

"It's the same argument made to Martin Luther King, Thurgood Marshall and Ruth Bader Ginsburg," Olson said, referring to the current Supreme Court justice's advocacy for women's rights in the 1970s.

Walker has a vast array of options available to him, beginning with the level of constitutional scrutiny to be applied.

One of the arguments made by Prop 8 proponents is that gays and lesbians have gained sufficient political power that they don't need high levels of constitutional protection. If that's the case, Walker asked Cooper, why are women still a protected class?

Political power has to be considered with a variety of factors, Cooper said.

If Walker rules for the plaintiffs, it could be narrow, striking down Prop 8 on equal protection grounds but declining to recognize a broad federal constitutional right to same-sex marriage. He did not say when an opinion would be handed down.

source
Tags: california, marriage equality
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