Prop 8 Debate: Closing Arguments Point Toward Positive Outcome

By Merrill Miller, Communications Intern

On June 16, Ted Olson gave his closing arguments for marriage equality before the Federal District Court in California. Within a few weeks, Chief U.S. District Judge Vaughn Walker is expected to make his final decision on the case Perry, Stier, Katami and Zarrillo v. Schwarzenegger, which challenges the constitutionality of California’s Proposition 8 legislation that bans same-sex marriage.

As I read liveblogs and later transcripts of the case, I was struck by the eloquence with which Olson defended Perry and Stier, a lesbian couple, and Katami and Zarrillo, a gay couple, and their desire to have their commitments recognized by the state. He drew on previous court cases that had ruled in favor of an individual’s right to marry, saying, “Marriage, the Supreme Court has said again and again, is the right of individuals…not a right belonging to the State of California.” He explained that his clients were being denied this individual right, and this denial made them second-class citizens. “There’s a stigma propagated by Proposition 8…that it’s not okay to be gay,” he argued. He even quoted the defense, Charles J. Cooper’s, chief witness, David Blakenhorn, who stated upon cross-examination that “we will be more American the day we permit same-sex marriages.” Olson had a strong case that drew on the right to marry that same-sex couples deserve and the discrimination that they face because this right is denied to them.

While Olson presented a strong closing argument, the defense, Charles J. Cooper, gave a closing statement that could at best be described as fallacious and at worst decried as preposterous. His definition of marriage used circular reasoning and essentially was: the purpose of marriage is procreation because procreation is the purpose of marriage. When Judge Walker noted that the state does not prohibit infertile heterosexual couples from marrying and recognizes parental responsibilities of adoptive parents, Cooper could not adequately respond. He tried to argue that because the state had never recognized same-sex marriage before, there was a risk that it would harm the institution of marriage. However, he failed to provide adequate evidence to support this claim. As Olson stated in his rebuttal, “We’re talking about fundamental, constitutional rights. We’re talking about treating people equally. That’s not breaking new ground.”

I admit that I’m biased in favor of the plaintiffs, but I interpreted Judge Walker’s questions to Cooper as an indication that he will probably rule in favor of marriage equality. While his decision will not end the case, as both Olson and Cooper claim that they will appeal as far as the U.S. Supreme Court if they are unhappy with the ruling, Walker’s decision will set a precedent in cases around the country that are attempting to overturn discriminatory laws that do not allow same-sex marriage. Even though Perry et al v. Schwarzenegger is far from over, as Olson said in his closing arguments, “This is the kind of record that was created as an antecedent to the Supreme Court’s Brown v. Board of Education…and other cases of discrimination.”

While same-sex marriage is not yet legal in most states, it is legal in Massachusetts, and at the National NOW Conference in Boston this year, we will be celebrating the wedding of Shirley Herman and Joan Waitkevicz, a lesbian couple from Florida, where same-sex marriage is not permitted. While we are delighted to be participating in this milestone event with them, it also serves as a reminder that the United States is still a very long way from achieving equal marriage. Hopefully, Judge Walker’s ruling on Perry et al v. Schwarzenegger will bring us closer to full marriage equality.

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