On Eve of Prop 8 Closing Arguments

Closing arguments begin Wednesday

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    The first thing to remember about the closing arguments in the Perry vs. Schwarzenegger case to overturn Proposition 8, the ballot measure that banned marriage equality in California, is that nothing will be decided.

    Any decision from U.S. District Judge Vaughn Walker will likely take at least days -- more likely weeks. And that's just the first step in what may take years to go through the appeal process.

    Walker delayed the close of the trial in order to prepare questions for the plaintiffs in opposition to Prop 8 and the defense in support. Each side was asked more than two dozens questions.

    The questions set off a wildfire of speculation as to how the judge was leaning in his decision, with the Los Angeles Times reporting that "attorneys in the case suspect that Walker has by now produced a draft opinion that touches on issues he has raised in his questions."

    Plaintiff's counsel on Tuesday published their written responses to Walker, taking on all 39 questions, including those posed to the defense.

    The first two questions posed to the plaintiffs cited a 2006 decision in Hernandez vs. Robles, which stated that "In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and a father in the home."

    Walker followed up with "What evidence supports a finding that maintaining marriage as an opposite-sex relationship does not afford a rational basis for Proposition 8?"

    Just last week, a study of children raised by two women published in the journal Pediatrics showed that not only did the 17-year-olds do as well as those in an opposite-sex control group, in most ways they behaved better.

    Other cases cited by Walker include Lawrence vs. Texas, which struck down laws against "sodomy," and Loving vs. Virginia, which overturned bans on interracial marriage.

    Opponents of Prop 8 feel assured that they have the stronger case, and certainly the scant two witnesses called by the defense and their respective performances on the stand are any indication, they could be right.

    However, if supporters manage to answer the judge's queries to his satisfaction -- and on clever points of law, rather than they vague appeals to tradition, common sense or morality -- then it could certainly go either way.

    But everyone will have to wait, and wait, for the day when the question is ultimately settled.

    Jackson West is blocking out time tomorrow evening to read reports and transcripts.