Today saw the closing arguments in Perry v. Schwarzenegger, the trial to determine the constitutionality of Proposition 8. Or, in the words of the Twitter feed of the anti-equality National Organization for Marriage:
And nobody should be happier than they--because all efforts to be objective aside, the closing argument from the defendant-intervenor (the side supporting Proposition 8) was simply bad. Actually, bad isn't the right word for it. I think "steaming pile of irrational, circular bull manure" might be more descriptive. For a snippet, let's go to the FireDogLake liveblog by Marcy Wheeler. In this section, "Cooper" is the name of the attorney for the defendant-intervenor, and Walker is the presiding judge:
Cooper: To whatever extent children born into this world w/o this union, by both parents that brought them into this world, a host of very important and very negative social consequences arise. THe purpose of marriage is to provide societal approval to that marriage and to the children. Marriage is a license to cohabit and produce legitimate children.
Walker: State does not withhold license of marriage from people who cannot produce children of their own. Are you suggesting state should?
Cooper: it is by no means a necessary requirement to fulfilling state’s interest in naturally procreating relationships.
Walker: Then the state must have an interest apart from procreation.
COoper: It rationally extends state’s interest to channel into marriage all potentially procreative relationships, as well as all male-female relationships. It furthers the state’s interest. Isn’t a requirement that state insist that people who get married be able to have children. Case after case has agreed that all states haven’t required procreation in no way eliminates procreative purpose. TO enforce that, would have to be some kind of fertility test, some kind of pledge, some kind of post-marriage enforcement.
The difficulty of Cooper's position here is striking, and I highly encourage a read-through of the rest of Cooper's "argument" from the FireDogLake liveblog, or from the Courage Campaign's Prop 8 Trial Tracker.
Cooper's language here is fascinating. He argues that it is in society's best interest to "channel" couples into marriage for the purpose of stable procreation. And he may even have a point, but the problem is that his entire point is completely irrelevant to the constitutionality of denying couples couples who are not capable of procreating naturally and must be adoptive parents the rights to marriage. And Judge Walker is more than happy to hoist Cooper by is own petard on this point. As liveblogged by Rick Jacobs:
What’s the threat to society if people seek medical assistance to have children?
C: It’s the irresponsible procreation – the procreation that comes about casually, unintentionally. The opposite sex couple (but infertile couple) or a same sex couple cannot unintentionally procreate; however, the opposite sex infertile couple being allowed to marry is not against the core purpose of marriage. If that couple gets married – all of the social norms that come with marriage – that encourage fidelity, operate to society’s benefit, in the sense that the fertile member of that couple will be less likely to engage in sexual relationships with third parties that lead to irresponsible procreation.
J: Why don’t those same things apply to same sex couple – considerations like taking care of one another, loving one another etc., why don’t those same considerations apply?
C: We’re not suggesting that there is a distinction between gay and opposite sex couples with respect to those considerations, but there is a distinction in terms of procreation. Neither partner with respect to the same-sex couple represents a concern about irresponsible procreation with a third party. The considerations that you have identified are considerations that the state and its voters have taken account of, respected, credited and honored by creating the parallel institution of domestic partnership.
J: Where does it show that the procreative function was a rationale for voters in upholding Prop 8? Where is that in the evidence?
C: The Yes on 8 position specifically references that marriage is a fundamental relationship in society and in the voter information guide itself.
Let's recap this thread between Cooper and Walker, because it's just embarrassing. Cooper says that opposite-sex couples who can't procreate get the ancillary benefits of marriage, like stability, loving commitment, etc. Walker asks: well, don't same-sex couples get those same things through marriage? And Cooper responds: "but they can't procreate!" And there we are, back at square one. It's an embarrassingly dreadful performance from a legal point of view, because Cooper has completely avoided the question of why it's constitutional to deny same-sex couples the ancillary benefits of marriage that Judge Walker outlined.
Ted Olson gave the closing argument for the pro-equality side. And as much as you may wish to hate him for arguing for Bush in Bush v. Gore, he's brilliant. As liveblogged by Brian Leubitz at the Trial Tracker, Olson gave a fascinating response to the concept of restricting marriage rights by procreative function:
O: Now a word on pro-creation. What if the state changes its mind? There are governments that have ruled that too much procreation is bad. If CA so decides in 10 years, would the state have the right to cut off marriage? No.
And more importantly: the entire basis of the Defendant-Intervenor's case hinged on trying to prove that there was a rational basis for denying the rights of same-sex couples to marry. The angle they chose was that of procreation--after all, "it'll send the signal that it's okay for your kids to be gay!" is not a valid legal argument. And Olson hit that one out of the park too:
So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation? They are not a threat to us. What is one single bit of evidence if you accept the channeling function if you accept the right that the State of California has the right to do that and I do not this is an individual constitutional right and every Supreme Court decision says it’s the right of the person. It’s not the right of the State of California to channel us into certain activities or in a certain way.
The bottom line is, our side won today. Whether or not Judge Walker rules our way is something we'll find out in a few weeks. But I'm feeling something I don't usually feel regarding the outcome of court cases like this: a tiny bit of confidence.