This afternoon, Charles Cooper will present the Closing Arguments for the Defendant-Intervenors and then David Boies will present the Plaintiffs’ rebuttal.
1:00 PM – 3:15 PM Proponents (argued by Charles Cooper)
3:15 PM – 3:45 PM Plaintiffs’ rebuttal
We will start shortly.
Cooper: The Court of Appeals found very recently that until very recently, until the Mass Court, marriage was always traditionally between one man and one woman. "from the beginning of statehood" in California, according to CA Supremes. Since marriage has always been defined as opposite-sex, why? Because fundamental to the very existence and survival of the human race.
The historical record leaves no doubt that the purpose of marriage is to channel procreative urges into stable relationships between the people whose sexual congress created the children that issued from it.
SCOTUS said, "Marriage has more to do with the morals of a people than any other institution" — 1888 case that Mr Olson likes to quote. Marriage is controlled by public authority, uniquely embued –
Walker: Do people get married to benefit the community? People don’t say, "Oh boy I’m going to benefit society, let’s get married."
Cooper: from society’s interest, this is an institution imbued with social meaning and social policy. The state has an interest in it, while people may not be marrying to benefit the community.
Walker: Why does the state regulate it? Why not leave it up to private contract?
Cooper: Because it is vital to the existence and survival of the race.
Without the marital relationship, society would come to an end. Important societal values at stake.
Walker: Why doesn’t the state simply say, It’s a private contract, we will make no laws, but if you enter into a contrct, we will enforce it like we do any other contract? Why is it that marriage has such a large public role?
Cooper: Excellent question, why does society — evry society — regulate marriage? Because it is crucial to society’s survival — the procreative interest represents a great threat to society if children ar eborn into a relationship not bound by the state. A host of very important — and very negative — implications and consequences arise.
Walker: Why don’t we withhold marriage from people who cannot have children of their own? Are you suggesting society should?
Cooper: Not a necessary reqiurment in fulfilling the state’s interst.
walker: Then the state must have some wholely other interest besides the procreative relationship.
Cooper: All potentially procreative relationships, all male-female potentially procreative relationships need to be channelled into the state’s interest, marriage. Case after case has agreed (mentions none). States have not required procreation but it doesn’t mean marriage isn’t important.
Cooper: How would a society that wanted to insist on procreation, how would they do that? Premarital fertility testing? Premarital pledge? Would the couple have to be found to be fertile? There would have to be post-marital actual begetting? On what basis could a state require a state pre-maritally ask for — there would have to nbe some kind of mandatory annulment process?
Walkwe: Isn’t that the logic that flows from your premise? If that is the premise for marriage, the steps you just outlined qwould be rational and reasonable steps to take?
Cooper — uh, uh, — Is the state’s marital rehgulation of procreation rational unless it insists on procreation? Is it enough for a society to ensure and increase the likelihood that naturally procreative relationship will take place in a state-sanctioned permanent relationship for the raising of children, so that society doesn’t have to step in and raise the children itself. That way unwed mothers don’t have to raise children themsleves, alone.
Walker: If the purpose of marriage is to regulate secual behavior, there are other ways to do that. Marriage regulation extends far beyond regulating the sexual behaviopr and conduct of the parties.
Cooper: That is true your gonor, but a core elemtn of that regylation goes to the procreative aspect, that children wil be born to that relationshoip, that within that context –
Walker: Parental responsibilities don’t depend on how the child came into the world. They extend to inlaws, grandparents, and so on, who weren’t directly involved in the cration of the children. Also, adoption law.
Cooper: Adoption law does its best to mimic the natural result of procrteation.
Walker: Isn’t the state indifferent as to how the child was conceived — in a marriage, outside of marriage? Once born, the state has an interest.
Cooper; Yes, the society cannot ignore the community’s interest in that child. If that child is born in a context other than a committed relationship between the man and the woman whose sexual congress created that child, within a state-sanctioned relationship — when a child is born outside that, the state must step forward, must take reesponsibiltty, for the upbringing and education of the child. When the child has neither its own mother nor its own father, or if the child still has a realtionship with its natural mother, but the natural parent doesn’t have the same ability and support as a marital union to raise that child, to provide for it, to gve it a maternal and paternal role model. You put your finger on the key — eery steate has — for THE MILLENIA! — has attempted to channel naturally procreative conduct into an enduring stable union.
Walker: Let’s move from the millenia to the three weeks in january. What does the evidence show?
Cooper: Responsible procreation is at the heart of society’s interst in regulating marriage.
Walker: Be specific, please — what was the evidence, what was the witnes.
Cooper: Kingsley Davis said rearing offspring. Blackstone said there are two great reltiionships in public life: marriage underwritten by civil society.
Second great relationship: parent and child.
Cooper: Justice Stevens, in his Bowers dissent, said marriage is critically important
Walker: I don’t mean to be flip, but Blackstone did not testify, Stevens did not testify, Kingsley Davis did not testify. What evidence is before this court?
Cooper: You don’t have to have evidence, your honor — Mr Blankenhorn said….
Walker: Yes, I have to have evidence.
Cooper; Not if one court after another has recognized — let me turn to the california marriage cases. CA Supreme court: the institution of marriage channels biological drives… (getting overwrought here) according to the court. Two years ago — les than Two Years Ago — the appeals court said that the procreative aspect goes to the central [part of marriage.
Cooper; Congress, in passing DOMA, says that marriage has an interest in marriage because it has an interest in children. Courts and legisltatires that have looked at this issue hvae upheld laws just like this one because of the state’s interest in channeling prorestion in relationships where chiuldren can be produced accidentally, whereas in same sex realtionships cannot produce children accodidentally.
Cooper: Those judges who have ruled, or will rule, as well as Congress, have all discussed the procreative aspect. The Plaintiffs ascribe to the voters animus, some dark slur on sevenmillion californians, 70 of 108 judges, to preserve the tradiitonal definition of marriage. It denies the good faith of Congress, these juedges, electorate after electorate.
Walker: Seven million Californiaans, all these judges, why in this case did you present just ONE witness? Seems to me you have a lot to choose from. It seems to me his testimony unequivocal.
Cooper: His testimony was utterly unnecessary as well.
Cooper: Pull down any dictionary, pull down any book about marriage, you will find the procreative aspect — unless written byu one of their experts or written in the last 30 years. (Quite wrought up).
Cooper: The pages ofhistory are filled with nothing but this understanding of marriage. No suggestion anywhere — it is ubiquitious across culturtes and time, nothing to dowith homosexuality.
Walker: LOngpause—what should I conclude from that?
Cooper; That society wants to bind men and women in a procreative relationship to help children.
Walker: What has changed in the last 30 years?
Cooper: My point is that NOTHING has changed in the last 30 years –
Walker: No you said now there is a viewpoint that marriage could be valid for homosexuals. Why do we have this now? Why is now debatable? If never debateable previously, who now?
Cooper: We respeect and credit the claim, the sincerity, the passion behind the desire of same-sex couples to marry, and that movement has developed and made this issue very important and controversial public policy quetions,. Not just in CA, elsewhere in the USA — voters and legislators have come to different conslusions throughout the world.
Walker: Doesn’t that indicate a changed perspective about the role of marriage?
Cooper: Yes in theminds of many
Walker: Doesn’t that mean there has been some evolution of the role, the position, the status of marriage?
COOPER: States have looked at this, this issue goes more to the morals of a people than any other, this issue is being debated in the political process — it has brought forward issues for the legislative process. But the real issue for yoiu, YOur Honor, is this: has something happened to the legitimate purposes of marriage to make the core procreative purpose of marriage no longer onstitutionally permitted. As political processes grappling with competing processes that it is no longer legitimate for the people of CA or Congress or courts to conclude that there is a legitimate function and purpose of marriage that does bring forward a distinquishing characteristic — those are the words in case after case about when it is appropriate for the state to be involved.
Cooper: The core distinguishing characteristic of marriage is procreation, and that is why we maintain the traditional value of marriage in society.
Walker: You heard Olson talk about Loving, numerous states had laws on the books prohibiting interracial marriage. At some point, just like now about homosexuality, the limitation on interracial marriage was seen as unconstitutional. Why are we not at this same tipping point here, with regard to same-sex marriage?
Cooper: Several, you honor. What was Virginia’s purpose in prohibiting interracial marriage? Not the procreative purpose, since it required interracial –
Walker: Excuse me for interrupting, but do you recall how those cases were upheld — that there would be destructive, corrosive effects on society.
Cooper: Those racist views were at war with the traditional procreative aspect of marriage. We have always said that the opposite sex aspect of marriage is definitional, because of its importance to the survival and continueance of the human race. Many states did not place racial restrictions, only 16 at the time of Loving, they grew out of this racist, white supremacist ideas that were at war with the procreative traditional aspects of marriage. People were forced to have out of wedlock illegitimate children, so this ractial restriction were at war. My second point –
Walker: Just as the restirction on gay couples is at war with gay couples’ desire to raise their children within a marital relationship!
Cooper: Your honor, only opposite sex couples can procreate naturally, they underscore the irresponsible threat of procreation outside of marriage. Procreative relationships outside marriage are not channeled, then much more frequently, the society has to cope with the adverse social ramifications of —
Walker: But you don’t draw any distinctions between opposite sex couples or heterosexual couples who need the intervention of technology to conceive.
Walker: Then what’s the difference? When people have a procedure to conceive a child, the state has less of an interest in that child?
Cooper: Well let me go back for a while, to the discussion of intrusive inquiries about desire and capabilities of couples — opposite sex couples — to have children. Society is always helped when opposite sex couples marry, since that strengthens the social norms, in order for this channeling function to be performed.
Cooper: When couples cohabit, that in and of itself, weakens social norms. But to come back to your point — the state’s main concern in seeking to regulate marriage into stable and enduring marital unions, is to minimize irresponsible procreation. I don’t like that term, I hate to use it, I wish I could come up with a better term, — procreation that leads to children being raised outside marriage. It is not a phenomenon that the state needs to be concerned about with same-sex couples. Same-sex couples can’t procreate by accident.
Cooper: Their procreation has to be purposeful. When they procreate –
Walker; My point was the heterosexaul couples who need assistance to procreate.
Cooper: And the state isn’t concerned about the threat to society –
Walker: What’s the threat to society of people seeking medical assistance to procreate?
Caooper: There isn’t any, irresponsible procreation happens unintentionally. Same sex and infertile couples can’t unintentionally procreate. Allowing them to marry isn’t inconsistent with the core procreative purposes of the state — it advances the state’s traditional value. The state couldn’t implement such a policy on such a narrow or fitted basis.
Cooper: In your written questions about infertile couples, trying to channel that couple into marriage furthers the underlying traditional basis for marriage. If they get married, then all the social norms that come with marriage, than encourage them to be faithful, the fertile member of that couple will be less likely to engage in third-party sex and raise a new threat of irresponsible procreation.
Walker: Why don’t those same values apply to lesbian and gay couples? Taking care, love and support, economic benefits — why don’t those apply to the plaintiffs just like they apply to John and Jane Doe>
Cooper; There is a distinction with regard to the procreative responsible purpose — the gay couple doesn’t represent the possibility of irresponsbile procreation.
Walker: Where is the evidence in this record before me that voters who enacted Prop 8 did so based on this procreative argument?
Cooper: There is a great deal of evidence, the ballot argument favoring Prop 8 talked about the best situation for a child is to be raised with a married mother and father. The campaign, YES ON 8, ProtectMarriage.com, spoke on this a great deal. It’s not accurate to say there was no discussion of this.
Cooper: There were advocacy pieces that spoke to this issue –
Walker: Is this in the record?
Walker: What number?
Cooper; PX127: A loving relationship for the raising up of children, a wide variety of written materials. (Reads about the beginning of time, marital relationship, lots of stuff we heard in the case from their materials in the campaign).
Cooper: The debate was a cacophony of ideas and conversations at the office water cooler, debated in every venue and forum. A cacophony! One doesn’t have to pinpoint a particular argument from a particular source. There was lots of debate.
Cooper: Regarding the standard of review your honor will apply, we submit the rational basis must apply. There’s no been a case in the so-called marital equality cases that has applied any other standard of review. There’s not been a case in the federal or state judiciary looking at a sexual orientiation that has applied anything other than rational basis. The Ninth Circuit has binding and controlling authority on this case. Six decisions, after Lawrence, have held to rational basis review. Out of 40-some odd, only four have done so and all have been reversed. Supporting the plaintiffs on judicial review will take your honor into a tsunami.
Cooper: We don’thave to submit evidence to the court regarding purpose — the plaintiffs must negate every single rational basis that provide fo rthe classification. (Cites cases)
Cooper; If the state of facts that would support the classification is even arguable or be debatable — the state’s policy must be upheld, it must be nondebatable. Even if you conclude that in fact they are right on any of their claims, that doesn’t matter, you still must rule for the state unless you also conclude that the legislative facts could not conceived to be true. No rational person could conceive –
walker: Was rational basis used in Romer?
Cooper: Long liong pause. There was not any explanation that could provide any rational basis for the rule there, so it must have flowed from animus, that was the only explanation to making gays and lesbians strangers to the law. Permanently, until the electorate –
Walker: Well Mr Olson says that Prop 8 makes gays and lesbians strangers to the institution of marriage. Let’s look at cloverleaf, with regard to rational basis. Where was the evidence here, where was the evidence of natural procreative capability of opposite sex couples as opposed to the non-natural non-procreative capability of same sex couples? That’s what you are relying on?
Cooper: Not sure I follow
Walker: Well I didn’t state it very well. Brennan made the point that there was a rational basis and evidence to demark the classification of paperboard milk cartons and plastic milk cartons. You contend the natural responsible procreative aspect is the evidence.
Walker; About one of your answers to my written questions to both sides : IF the court finds 8 unconstitutional, what remedy would be a constitutional expression of voters’ will? Your response was: if as plaintiffs maintain 8 cannot be reconciled with its own retrospective aspect, the remedy is to sustain prop 8 retroactively and eliminate the conflicting feature of California law. Do you mean I must also invalidate the same-sex marriages between June and November>?
Walker; Not what those words you wrote say.
Cooper: We dispute an irreconciliable conflict. Is the plaintiffs argumetn with respect to the ‘crazy quilt’ created by prop8 that determined prop 8 to be prospective only — we disagree with Mr Olson, we don’t see a conflict that prop 8 must be invalidated. CA Supremes were quite routine and standard, affecting rights going forward. And interests created under the pre-existing state of the law, the five month period of legal same sex marriage — the CA Supremes said \these stood. Those interests, the court thought, were powerful and legit, and it was loathe to interpret those interests as retroactive.
Cooper: Often legislatures grandfather interests, and protect them from the application of especially harsh punition created under the previous regime. BUT — all we’re saying in our answer, if it were to be the case that the prospective effect., those 18,000 marriages can’t be reconciled, if one or the other must fall — then the overriding constitutional principle must not fall. Prop 8 should not be invalidated because there’s something irreconciliable with marriages that occurred before.
Cooper: CA Supremes might have made this new law retrospective. Just as they voided the SF marriages, so the court could have invalidated the 18,000 marriages. We think these things can lie down together very nicely, one doesn’t invalidate the other. Prop 8 can stand with the 18,000 marriages together without one falling.
Cooper; The 18,000 marriages before Prop 8 can remain valid. The grandfathering is perfectly rational and common and perfectly constitutional.
Cooper: I want to call the court’s attention to 11th circuit, Lofton case, about gay adoptions. At the heart of this case was the procreative aspect of marriage and the idea that was in the official ballot, that it is best for a child to be raised by its own mother and father. The Court there concluded, with the expert Dr Lamb, that the commonsense belief was that children are best raised by its mother and father. (READS) … optimum social structure, authority figures, etc, etc, not proved beyond scientific certainty,
Cooper: This brings forward the point that the standard here is whether or not the evidence produced by the plaintiffs is beyond opinion evidence and rises beyond scientific facts. The 11th Circuit felt that the scientific evidence presented didn’t overcome most people’s commonsense understanding that the optimal parenting situation is the natural mother and father.
Cooper: Let’s talk about the plaintiffs’ emphasis on religious beliefs of the proponents. It’s part of a our constitutional tradition: abolition, civil rights. There are issues — many of them — that confront the body politic that are bound up in moral values and moral judgments: obscenity, prostitution, gambling, assisted suicide. SCOTUS notes profound debate in America about assisted suicide — the constitution permits the debate to continue. The court made clear that when a court is presented with a claim of a new right, and must insist it be deeply rooted in the country’s history and traditions. TO prevent the judiciary from taking —
Walker: You concede the courts may intervene in some cases: Loving, Brown. What are the criteria a court may use?
Cooper: What SCOTUS says: the right claim must be deeply rooted.
Walker: YEs, marriage is a deeply rooted fundamental right. And that is a right that extends to all persons, whether capable of reproducing, whether incarcerated, whether behind on their child support — only limitation is a gender limitation.
Cooper: And that gender limitation is a definitional feature. The reason marriage is fundamental is because it is critical to the future of the human race.
Walker: Its gender-speificity?
Cooper: the existence and survival of the human race, it is the right of a man to marry a woman or a woman to marry a man.
Walker: Then let me ask you about number nine in (realizes how badly numbered the three sets of the questions, each numbered individually, cites page number) Oh, no it’s number ten.
Walker: (READS) Social constructionism holds that only sexual orientation is a social construct. So aren’t these sexual orientation distinctions, these gender distinctions — aren’t they all social constructs?
Cooper: Oh, no, not at all. (SURPRISE!!)
Cooper: WE think it’s amorphous, it’s indefinable, it’s not immutable, sexual orientation is not an immutable trait, it’s an accident of birth –
Cooper: As the SCOTUS says.
Walker: Well, religious discrimination is prohibited, and religion is certainly not immutability.
Cooper; Not from equal protection, religious freedom stems from the First Amendment, SCOTUS has qualified race, as immutable. Ninth circuit has said that sexual orientation is not immutable. We think that’s plainly right. We are aware of no case that holds sexual orientation as immutable. The record before you is quite overwhelming — the record of immutability is very low. No real definition of sexual orientation: behavior, tractability, response.
Cooper: Beyond that, plaintiffs witnesses were quite candid that sexual orientation does change over time, especially in women. There was testimony about the astonishing plasticity of orientation in women, quotes a VIVID study of women who IDd themselves as gay, two-thirds had changed their orientation at least once over their lifetimes.
Gonna pick up a new liveblog at Seminal now….