Closing Arguments In The Prop 8 Trial: Just The High Points


My mother — my adoptive mother — always wanted me to be a lawyer. Specifically, she wanted me to follow in her father’s footsteps and go to Baylor Law School. Thankfully, I stopped listening to my mother sometime in junior high.

I know now that I would’ve been a terrible lawyer, I would’ve hated law school, and I would’ve hated Baylor’s Southern Baptist environment even more. Thankfully, I opted for the Methodists, who were, morally speaking, almost as liberal as the Episcopalians who ran my grammar school.

That said, I do have a fondness for debate and rhetoric, and I do love — well, not love, but enjoy — skimming legal briefs and even court transcripts. To me, they all read like act two of To Kill a Mockingbird, which is pretty compelling stuff, no matter how you feel about Gregory Peck.

And so, when I heard that the transcript for yesterday’s closing arguments in the Proposition 8 trial (aka Perry v. Schwarzenegger) had been posted online, I headed on over for a little light reading.

I was hoping that Ted Olson, arguing for the plaintiffs (aka Our Team), might bust out with some Atticus Finchy poetics. Sadly, his remarks were fairly dry — dry and very, very compelling. He ran through many of the standard arguments in favor of gay marriage, stuff we’ve probably heard a thousand times over, but he also raised some very persuasive, technical, legal points:

page 2970

I think it’s really important to set forth the prism through which this case must be viewed by the judiciary. And that is the perspective on marriage, the same subject that we’re talking about, by the United States Supreme Court. The Supreme Court — the freedom to marry, the freedom to make the choice to marry.

The Supreme Court has said in — I counted 14 cases going back to 1888, 122 years. And these are the words of all 25 of those Supreme Court decisions about what marriage is. And I set forth this distinction between what the plaintiffs have called it and what the Supreme Court has called it.

The Supreme Court has said that: Marriage is the most important relation in life. Now that’s being withheld from the plaintiffs. It is the foundation of society. It is essential to the orderly pursuit of happiness. It’s a right of privacy older than the Bill of Rights and older than our political parties. One of the liberties protected by the Due Process Clause. A right of intimacy to the degree of being sacred. And a liberty right equally available to a person in a homosexual relationship as to heterosexual persons. That’s the Lawrence vs. Texas case.

Marriage, the Supreme Court has said again and again, is a component of liberty, privacy, association, spirituality and autonomy. It is a right possessed by persons of different races, by persons in prison, and by individuals who are delinquent in paying child support.

It is the right of individuals, not an indulgence dispensed by the State of California, or any state, to favored classes of citizens which could easily be withdrawn if the state were to change its mind about procreation. In other words, it is a right belonging to Californians, to persons. It is not a right belonging to the State of California.

And the right to marry, to choose to marry, has never been conditioned on or tied to procreation. It hardly could be  rooted in the state’s interest in procreation, since the right to marry, in Supreme Court cases, has been invoked sustaining the right to contraceptives, to divorce, and just a few years ago in that Lawrence case, to homosexuals. [emphasis totally mine]

page 2993

[W]hat the Court repeatedly talked about in Lawrence vs. Texas is the right of individuals, the constitutional right of individuals — this is on page 574 of the Lawrence opinion.

“Our laws and our tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationship, child rearing, and education.” That’s not a complete list.

And then the Court goes on to say, “Persons in a homosexual relationship may seek autonomy for these purposes just as heterosexual persons do.”

The Court was talking about the private, intimate behavior. If the Court had said, “Instead, you can go to jail for five days because we caught you doing those things, we will take away your right to drive on highways, we will take away your right to marry because you do those things or you engage in that conduct,” that seems to me that that is just as unconstitutional, especially if the thing which is taken away is also a fundamental constitutional right.

In other words, because you engage in something that’s protected by our Constitution, we’re going to take away — because we don’t like it, we’re going to take away a right to do another thing that’s protected by our Constitution. [emphasis totally mine]

That can’t be constitutional. And so I don’t think that there is any distinction. I submit that there can’t be any distinction. And the language of the decision talks about the individual right to engage in that activity. That can’t be a precondition for engaging in the right to marry.

page 2997

Your Honor pointed out at the conclusion of the summary judgment hearing, this issue is not about same-sex  marriage. Just as in 1967, it wasn’t about interracial marriage. It was the right, in 1967, in the Loving case, the right to marry without limitation based on race.

Here, the issue is the right to marry without limitation based upon sex. That’s another reason why this requires heightened scrutiny. [emphasis totally mine]

The evidence was overwhelming that this is a stigma. It’s a government-imposed stigma. It’s a government-imposed stigma placed in the constitution of the State of California.

What could be a stronger signal to other citizens and to other people that they are not okay, these people are not normal?

page 2999

The latest words from the proponents, Counsel for the proponents is, “We don’t know. We don’t know whether there is going to be any harm [caused by gay marriage].”

And I would submit that, “We’ve always done it that way,” that “It’s a traditional definition of marriage,” which is something that “We’ve always done it that way,” is the same — is the 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 and maintaining subordinate status for married women. [emphasis 100% totally and completely mine]


I tried skimming the defense’s remarks, too, but obviously, I wasn’t not so interested in what they had to say. (See? I would’ve made a terrible lawyer.) As far as I can tell, the bulk of their argument goes like, “Marriage has been between a man and a woman for centuries, so there’s clearly a reason to keep it this way.” In fact, he says this:

page 3027

Why has marriage been so universally defined by virtually all societies at all times in human history as an exclusively opposite-sex institution? It is because marriage serves a societal purpose that is equally ubiquitous. Indeed, a purpose that makes marriage, in the often repeated formulation of the Supreme Court of the United States, fundamental to the very existence and survival of the human race.

And also:

page 3030

Without the marital relationship, your Honor, society would come to an end.

Which…well, do I really have to point out the giant, gaping holes in that argument? I mean, is that even an argument, or is it just a ghost story?

Judge Walker didn’t seem to have much patience with that sort of thing, either. When the defense argued that the state has an interest in maintaining opposite-sex marriage because of its procreative nature, Walker broke in:

page 3032

THE COURT: But the state doesn’t withhold the right to marriage to people who are unable to produce children of their own.

MR. COOPER: That’s true, your Honor, it does not. It does not insist —

THE COURT: Are you suggesting that the state should, to fulfill the purpose of marriage that you have described?

MR. COOPER: No, sir, your Honor. It is by no means a necessary — a necessary condition or a necessary requirement to fulfilling the state’s interests in naturally potentially procreative sexual relationships.

THE COURT: Well, then, the state must have some interest wholly apart from procreation.

MR. COOPER: It doesn’t necessarily follow that that is true.

It rationally furthers the state’s interests to extend — to attempt to channel into the marital union all potentially procreative relationships, as well as all male-female relationships.

Which seems to me pretty weak. But as I said, I’m totally biased.

Either way, this stuff’s going all the way to the Supreme Court, so get comfortable, y’all.

5 thoughts on “Closing Arguments In The Prop 8 Trial: Just The High Points

  1. Ted Olson did a great job.
    Unfortunately Atticus Finch poetics , poetry and art , aren’t handled well by courts.

    Thanks for this post and your great blogging.

  2. filmdango

    Did anyone ever release statistics on the number of confused citizens who mis-voted? The whole “Yes means No, No means Yes” aspect of Prop 8 had to cause a substantial percentage of voter error. I think – even in California – Americans require “idiot proofing” to understand most everything.

  3. Richard

    @filmdango: There was a lot of talk about it beforehand, and I think one or two highly publicized cases of individual confusion after the fact — like some celeb’s mom voted YES when she meant to vote NO, isolated incidents. I don’t know that any formal polling has been done on a broad scale, though.

    I agree that it was weirdly worded, and the pro-Prop 8 people pushed to have it done that way. But I have a hard time believing that a better-worded ballot initiative would’ve changed the outcome. I mean, the vote was close, but it wasn’t quite that close. Although we tend to think of LA and SF when we think of CA, there are a LOT of conservative voters there…

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