Prop 8 Supporters and Opponents Await Judge's Decision

Read the closing arguments in the history marriage equality case

By Jackson West
|  Thursday, Jun 17, 2010  |  Updated 2:57 PM PDT
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Judge Vaughn Walker is now considering this decision on the question of Proposition 8 and marriage equality.

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Both sides in the Perry vs. Schwarzenegger case to overturn Proposition 8's ban on equal marriage rights for Californians have made their final arguments and now the state waits on U.S. District Court Judge Justice Vaughn Walker to rule.

The chances that a decision will come in time for Lesbian, Gay, Bisexual and Transgender Pride parades across the state are slim, even though the judge may already have a draft decision prepared.

With hundreds assembled in the courtroom and an overflow room, Ted Olson argued that the case was clearly one of unconstitutional discrimination against a class of people. He used video of the moving testimony from witnesses that marriage holds special meaning to answer Walker's questions on what makes marriage different from legal domestic partnership.

Therese Stewart, a lawyer for the plaintiffs representing San Francisco, argued that the ban on same-sex marriage also causes permanent economic harm, in terms of public health costs and since the city is a destination for all weddings.

"It's long been the city of love, the city where people leave their hearts." Stewart stated. "It's factor of our culture in San Francisco."

"Cool, gray city of love," mused Walker.

Andy Stroud, the attorney representing Governor Arnold Schwarzenegger, nominally for the defense, waived his right to argue, as did Michele Inan, representing Attorney General Jerry Brown.

That left it defense attorney Charles Cooper to make his case to let the measure stand. Cooper cited the Massachusetts Supreme Court decision that granted marriage equality in that state which stated that allowing same-sex marriages "changed the definition of marriage as it had been inherited from common law."

Cooper went on to suggest that the reason for that traditional definition rests in the necessity for the species to procreate, and hence it was in the state's best interest to foster that definition.

When asked by Walker, "Why does the state regulate [marriage]? Why doesn't it leave it entirely up to private contract?"

Cooper responded, "because the marital relationship is fundamental to the existence and survival of the race. Without the marital relationship…society would come to an end."

Olson took one last stand in the courtroom to rebut Cooper, but was first grilled by Walker, who cited the ongoing political maelstrom of Roe vs. Wade legalizing abortion rights for women, and asked if "the danger to the position that you are taking is not that you're going to lose this case, either here or at the Court of Appeals or at the Supreme Court, but that you might win it?"

Olson parried with a reference to Loving vs. Virginia, which overturned racial discrimination that state's marriage law, to say that California's decision to allow same-sex couples to wed was not "breaking new ground."

He then dismantled Cooper's arguments by pointing out that the evidence the defense largely relied on was from written statements instead of witnesses that plaintiff's would have rather liked to cross-examined.

Olson closed:

The combination, as I said before, of those 14 Supreme Court decisions that tell us how valuable marriage is, the Romer case that says you can't take away rights and make them unconstitutional to -- impossible to recover except by amending your state constitution, and the [Lawrence vs. Texas] case that says that the sexual orientation of individuals in their private conduct is a protected right, you cannot then, in the face of all those decisions by the United States Supreme Court, say to these individuals, "We are going to take away the constitutional right to liberty, privacy, association, and sexual intimacy that we tell you that you have, and then we will now use that as a basis for not allowing you the freedom to marry."

That is not acceptable. It's not acceptable under our Constitution. And [Defense witness David Blankenhorn] is absolutely right. The day that we end that, we will be more American.

Judge Walker thanked both sides, calling the presentations from both sides "splendid."

While you wait, there are the 164 pages of closing arguments to read in the official court transcript.

Or you can wait a couple of days for the re-enactment from MarriageTrial.com -- who sent the actors playing the roles of Walker, plaintiff's counsel Ted Olson and defense counsel Charles Cooper to watch the trial and study up for their roles.

Jackson West realizes this is a bit long, but this is history in the making, people!

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