Posted on 06/17/2010 11:47:45 AM PDT by Behind Liberal Lines
SAN FRANCISCO - Charles Cooper, the attorney defending a federal challenge to Proposition 8, came to San Francisco to deliver his closing argument on same-sex marriage Wednesday. But Chief Judge Vaughn Walker made it feel much more like a cross-examination.
Walker closely questioned Cooper about his trial presentation, including why his side called only one witness to testify about the institution of marriage. Where Cooper's counterpart Theodore Olson of Gibson Dunn & Crutcher was able to deploy lofty rhetoric with less interruption, Cooper was stuck parrying Walker for about two hours.
At one point, Walker asked Cooper to recount the trial evidence showing that marriage is designed to encourage procreation. That's the central reason Prop 8 supporters cite as why voters have a rational basis to ban gay marriage. But as Cooper named different expert authorities, Walker interrupted.
"I don't mean to be flip," Walker said, but the people Cooper named didn't actually come to testify.
"Your honor, you don't have to have evidence of this from the authorities," Cooper said, adding that case law is enough.
"You don't have to have evidence?" Walker asked quietly.
The exchange pointed up a key fault line running through the case, in which four gay plaintiffs are seeking to have California's Prop 8 invalidated. From the beginning, Cooper and other conservative legal thinkers argued against the need for a trial, saying case law alone dooms the complaint to fail. Even Olson was skeptical of Walker's plan at first.
The trial lasted for three weeks in January. And on Wednesday, Olson complimented Walker for holding it, because Olson said it demonstrated the evidence heavily favors the plaintiffs.
Walker seemed to agree. A moment after his comment about the evidence, Cooper said the plaintiffs' accusation that anti-gay marriage thinkers are motivated by animus slurs 7 million Californians and scores of judges. "It denies the good faith of Congress," Cooper added, referring to the Defense of Marriage Act.
Given all that, Walker rejoined, "Why in this case did you present but one witness?"
Olson picked up on these exchanges in his rebuttal, saying voters must have a good reason for denying same sex partners the fundamental right to marriage.
"With all respect to Mr. Cooper, 'You don't have to put in any evidence' does not cut it," Olson said.
Walker's courtroom was packed for the highly anticipated closings, with federal marshals strictly regulating the traffic flow. But the atmosphere was somber and hushed, especially compared to the plaza outside, where a group of young actors staged a dramatic reenactment of trial testimony to a crowd of onlookers.
In addressing Olson, Walker seemed concerned about the courts overstepping their role. He alluded to the U.S. Supreme Court's 1973 decision legalizing abortion, which took the issue out of the political realm and engendered years of acrimony.
"Isn't the danger in your position, not that you're going to lose this case — either here, at the Ninth Circuit, or at the Supreme Court — but that you're going to win it?" Walker asked.
The marriage case involves a fundamental right, Olson replied, like the one allowing interracial marriage. Civil rights activists have always been told to move more slowly, he said.
"It's the same argument made to Martin Luther King, Thurgood Marshall, and Ruth Bader Ginsburg," Olson said, referring to the current Supreme Court justice's advocacy for women's rights in the 1970s.
Walker has a vast array of options available to him, beginning with the level of constitutional scrutiny to be applied.
One of the arguments made by Prop 8 proponents is that gays and lesbians have gained sufficient political power that they don't need high levels of constitutional protection. If that's the case, Walker asked Cooper, why are women still a protected class?
Political power has to be considered with a variety of factors, Cooper said.
If Walker rules for the plaintiffs, it could be narrow, striking down Prop 8 on equal protection grounds but declining to recognize a broad federal constitutional right to same sex marriage. He did not say when an opinion would be handed down.
Ted Olson is a disgrace.
The reason for marriage is protection of the procreative unit. It’s such a fundamental, self-evident fact that there is no need to provide “experts.”
It would have been nice if Kennedy would have applied those same libertarian leanings when deciding Kelo. Of course, he didn't.
It is a California Constitutional amendment. How can it be overturned? If it is, then the state constitution means nothing. For the only standard becomes the one the unaccountable judges say it is.
Theodore Olson: off the rails in a big way.
Is it a bad sign when the judge is writing his decision before the final arguments are done?
If this judge rules against 8 and that the government must “treat every citizen equally” then it will be time for those of us that only pay taxes and get no service to sue for our equal rights.
When one citizen gets free food, free school, free medical, free housing, etc
and
one citizen receives nothing.
That is not the government treating equally. Why 10% from one and 50% from another? The entire progressive tax system should be ruled un-Constitutional.
Evidence: Rome
The reason for *Marriage* is to establish *Order* between Men and Women* *A Covenant* * *Legal Contract* *A Commitment* based on children, fidelity and family ties.
A Man and Woman seals that covenant with *Consumation*
Gays cannot consummate nor can they re-produce with one another, nor can they provide a child with a Mother, Father and biological family connections.
Also GAYS can marry, they cannot re-define what marraige is.
Has the SCOTUS weighed in on similar cases? Because it seems this is where it is headed.
The judge needs to show how he is given the authority to overrule the will of the voters over something that is a universal cultural belief (at least until the rise of post-WWII socialism).
Being in the position that he’s in,
and being a liberal,
he inherently “knows better” than the hoi polloi.
At Closings, Judge Asks Same-Sex Marriage Foes, “Where’s Your Evidence?”
They aren't. Liberals called Hillary Clinton a b**** and Sarah Palin a c*** for running in 2008.
Identity politics only means something to the politically correct when you serve the Party.
Making law from the bench is what liberals do best.
Take your little ballot initiative and screw off. America wasn’t made for you little people. Just important Judges and politicians like us. :)
Huh? Is this what we pay unelected judges their fat salaries for? Any HS biology student should know, 2 men can bugger each other till rapture and it won't produce a baby, so marriage between a man and woman is the only way to insure procreation. We need to cite case law for this? God help us.
Sounds like the judge likes Boston Legal too much.
The judge is a queer...who didnt know what the result was going to be months ago?
What a bunch of stupid f*ks.
two men or two women by themselves can not reproduce and create a family.. simple as that.
they can only ‘synthesize’ the experiences and then proclaim it matches or means as much as the man and woman model of a family to satisfy a few. rule of the minority or what?
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