Kelly Rivera Hart & Molly McKay wait in line to get in the court
room (photo by Eric Ross)
I was at the San Francisco Superior Court for the closing arguments in the legal battle over California's law against same-sex marriage. The following article details my experience. The bold writing below shows sections that I explicitly wanted to stand out, and do not depict the tone of the person speaking.
“Welcome back,” Judge Walker said to the courtroom on Wednesday morning as the closing arguments were about to begin. “Delighted to have you back. Obviously the hiatus that we have had, the period of time from the presentation of the evidence to the present, is not anything that I would have wished or hoped for. I was hoping that we could get this case in before the present. But it may be appropriate that the case is coming to closing argument now. June is, after all, the month for weddings.”
After hearing those comments, I looked over in disbelief to my friend, Kelly Rivera Hart, who was sitting next to me in one of the overflow rooms at the San Francisco Superior Court. The whole room gasped, which reaffirmed that we did in fact hear what we thought we heard. Was Judge Walker giving us a sign that he was leaning towards repealing Proposition 8?
The interesting thing about the closing arguments is that they happened on June 16th, a date which happens to be the two-year anniversary for the first same-sex couples who legally married in California. Was this a sign that same-sex marriage would soon be legal again in the State of California, or was I looking into this too much? Honestly, after hearing the closing arguments, I think marriage equality is right around the corner.
When Mr. Olsen, the lawyer for the plaintiffs, responded to the defendants long history of heterosexual marriages, he said, “It's a traditional definition of marriage, which is something that we have always done it that way is the same -- is a corollary to the ‘because I say so.’ It's not a reason. You can't have continued discrimination in public schools because you have always done it that way. You can't have continued discrimination between races on the basis of marriage because you have always done it that way. That line of reasoning would have prevented the Loving marriage. It would have justified racially segregated schools.”
Inside the overflow room during the closing arguments of the Prop 8 trial.
Mr. Olsen didn’t really need to make much of a case though, because Mr. Cooper, the lawyer defending Proposition 8, pretty much dug himself into a hole. The Judge tried to ask Mr. Cooper for evidence to support his claim that “marriage is a license to produce legitimate children.” After Mr. Cooper cited the statements of Kingsly and Blackstone, Judge Walker said, “I don't mean to be flip, but Blackstone didn't testify. Kingsly Davis didn't testify. What testimony in this case supports the proposition?”
“Your Honor,” said Mr. Cooper, “you don't have to have evidence of this.” Again the room was flooded with laughter. Did he just say that he didn’t think he needed to provide evidence to support his claims?
Mr. Cooper tried to dig himself out of the hole by saying he didn’t need to provide evidence because history was on his side. “At least two thirds, Your Honor, or just approximately, anyway, two thirds of all the judges who have looked at the issue that is before you now have upheld the traditional or would have upheld the traditional definition of marriage on this rationale. The majority of Congress enacted DOMA as I just mentioned on this rationale. And the plaintiffs say there is no way to understand, understand why anyone would support Prop 8, would support the traditional definition of marriage except through some irrelevant rational or dark motivation some animus, some kind of bigotry, Your Honor.”
People wait in line to get into the court room (photo by Eric Ross)
“And that is not just,” Mr. Cooper continued. “That is not just a slur on 7 million Californians who supported California's 8; It's a slur on 70 of 108 judges who have upheld as capable and rational the decision of voters and legislatures to preserve the traditional definition of marriage. It denies the good faith of Congress, not just these judges, of Congress, of state legislature after state legislature and electorate after electorate.”
“Let me ask,” Judge Walker interrupted. “If you have got 7 million Californians who took this position, 70 judges as you pointed out, and this long history that you have described, why in this case did you present but one witness on this subject, one witness? It seems you had a lot to choose from if you had that many people behind you. Why only one witness? And I think it fair to say that his testimony was equivocal in some respects.”
“And his testimony was utterly unnecessary for this proposition,” Mr. Cooper responded.
“This goes back to the ‘you don't need any enemies point’,” said the judge.
That whole conversation pretty much set the tone. Not only were the defendants of Proposition 8 unable to find a decent witness for the trial, but Mr. Cooper felt that he didn’t even need to show evidence in court to support his claims. Add all of that to Mr. Cooper’s constant stuttering, and he looked like an unprepared schoolboy going in front of the class to give an oral book report on a book he hadn’t fully read.
So do I think Judge Walker will rule that Prop 8 is unconstitutional? Based on today’s hearing, yes. Yes I do. Get ready kids, we’re about ready to go up to the Supreme Court, because the Prop 8 supporters will definitely appeal.
To view a full transcript of the closing arguments, go to the Equal Rights Foundation's website.
So what do you think about the closing arguments in the Prop 8 trial? How do you think the judge will rule? Let us know in the comments section below.
Do you enjoy reading Eric's articles? Make sure you stay on top of LGBT news by having future articles delivered right to your inbox. Just click the "Subscribe" link above. Your email will never be shared with a third party.
Comments
It seems to me the strategy the proponents of Prop 8 are following is very risky. Without an evidentiary record, the court of appeal could very well uphold Judge Walker without having to make broad pronouncements on marriage equality. They could hold, in effect, that while they may be evidence that there was a rational constitutional basis for the people of California to adopt Prop 8, these defendants have failed not present it. Thus their arrogance and hubris may come back to bite them. I mean, who tells a Judge I don't need to prove anything to you?! Then again, I may just be grasping at straws. Scalia, Thomas, Alito and Roberts will find a way to take the case. They just need one more vote and Kagan may just be the one. I, for one, will not stop working to change the hearts and minds of my fellow Californians until enough of them are willing to vote to restore marriage equality.
It became crystal clear to me that the team behind Prop 8 based their entire campaign and subsequent defense on discrimination. They can dress it up all they want in orchestrations of historic reasoning and unproven theories of destroying the institution of marriage, but at the end of the day, they don't understand the LGBT community nor do they like us. The American Foundation for Equal Rights has pulled back the curtain on this organized religious hate and they've revealed a weak I'll-prepared group of well funded homophones. To be sure this case will be repealed regardless of the Judge's decision. I'm grateful to Chad Griffin, Ted Olson, David Boies and the plaintiffs for putting themselves on the frontline defending American equality. I hope this inspires others, both straight and LGBT, to keep up the fight. Do I think the Judge will rule in favor of equality? Yes I do. Do I think the fight for full equality is over if he does? Not by a long shot.
"This goes back to the ‘you don't need any enemies point’,” said the judge.... can you fix the typo in the article above? it was one of the biggest lines of the day:
"This goes back to the ‘you don't need any EVIDENCE point’,” said the judge. [referring to Cooper's earlier comment that he didn't NEED any evidence]
Regardless of how this trial ends the battle has been won or lost. Either way it will end up in the Supreme Court. We have a long fight ahead of us for equality in California and across the nation.
Regardless of how this trial ends the battle has not been won or lost. Either way it will end up in the Supreme Court. We have a long fight ahead of us for equality in California and across the nation.
The Mormon church had a great deal of influence in California politics when it reached out from Utah to fund the proponents of Prop 8.
This article describes how the Mormon church was fined for failing to report donations.
californiaprogressreport dot com/site/?q=node/7845
Items of import:
"[The fine] seems a little light since [the FPPC] only looked at $36,000 of their contributions, but it's also historic because no church has ever been fined for illegal political activity in California before," said Fred Karger, CAH founder. "In fact, it's unprecedented."
There are other tasty nuggets; Mormons caught lying to the media, funding over half of the $45 million that went into the Prop 8 campaign, and this quote:
""They got off easy," said Karger, "but this is only one state. They were involved in all 30 state [marriage] battles. This is just the beginning.""
Regardless of the Mormons, Prop 8 is just unconstitutional. It should be repealed.
If the purpose of marriage is to procreate, maybe they should ban infertile people, including but not limited to women who have gone through menopause or have had a hysterectomy from marrying and what about men who have had vasectomies?
I'm a straight guy and I'll even admit to being a little homophobic but I think that as long as there government endorsement and benefits given by the government to those that are married, including tax breaks, then the government shouldn't be able to discrimate against anyone by saying who can and can't marry.
Even though I admit to being (a little) homophobic, I'm not about to tell someone else what the can and can't do with another consenting person.
You are correct, Lester. While the federal court of appeals, based in San Francisco, probably will not disturb whatever the lower court does in this case, the U.S. Supreme Court's conservative crew will undoubtedly try. I don't think Kagan is a problem -- the problem is Anthony Kennedy, a Californian. Whatever way he goes is the way the Supreme Court goes. Does anyone know what his record is on this subject?
The whole thing is totally gay.
if it was really rule of law across the US, it would already be legal in all States
that equality provision in the bill of rights is not footnoted with * unless you are gay.
that California debacle was a good example of not only rule by the mob, but also how to frame a question to get the answer you want.
many people assumed voting yes was voting for gay marriage - not that the yes vote was yes to a negative - remove gay marriage
plus, the idea that marriage is traditionally 1 man and 1 woman is not even true - many cultures have polygamy or polyandry - and it's really only been a short while that romantic love has been the basis of marriage.
these so called "traditionalists" if they want that kind of marriage, first have to make women chattel again.
nina
ntrygg.wordpress.com
Gay hunting season would be fun.
So if you say that it's all about marriage equality between two consenting individuals, then I guess we can allow incestuous marriages. Gay marriage is an oxymoron. Marriage is and always will be between a man and a woman. I guess it's also discrimination if we allow ONLY Indians to run casinos and special scholarships for certain genders/races.
I do not believe a gay judge should be allowed to rule over this lawsuit. Obviously, legal same-gender marriage would benefit this judge. This is a democracy, let the people decided. If you are the minority in the voting results, too bad so sad. You don't see politicians crying about being the minority in an election. Maybe if you had more supporters you would win.
Got something to say?
Examiner.com is looking for writers, photographers, and videographers to join the fastest growing group of local insiders. If you are interested in growing your online rep apply to be an Examiner today!