It’s been several months since the parties wrapped up the presentation of evidence in Perry v. Schwarzenegger. Since then, they’ve been fighting over some issues about evidence, which are now all resolved. Today, the advocates reconvened for a full day of closing arguments, watched closely by hundreds of spectators in two overflow courtrooms. In closing arguments, attorneys summarize the most important evidence from trial that supports their side. Today’s arguments overwhelmingly demonstrated the volume and strength of the plaintiffs’ evidence, and the complete lack of evidence in support of Proposition 8.
Theodore Olson of Gibson, Dunn did a masterful job for the plaintiffs. He focused his presentation on the two plaintiff couples’ moving testimony about why marriage is important to them. Olson also highlighted the testimony from all of the expert witnesses – on both sides of the case – who unanimously agreed that marriage would enhance the well-being of same-sex couples and their kids. Olson hammered home the point that during the election, Prop 8 backers argued that children needed be “protected” from gay people — but during the trial, the Prop 8 backers did not raise this argument, which echoes themes that anti-gay forces have used for decades to stigmatize and marginalize gay men and lesbians. Instead, the attorneys defending Prop 8 argued that same-sex couples must be excluded from marriage because the purpose of marriage is procreation. Olson countered that the right to marry, according to the U.S. Supreme Court, is about the individual right to form a family, whether or not procreation is involved.
Asked by Judge Walker to describe the evidence supporting his position, Charles Cooper, the attorney defending Proposition 8, repeatedly said that there was no need for evidence to support his case. At one point, he claimed that even the single expert witness on his side, David Blankenhorn, had been unnecessary, because simply looking at the dictionary would show that the definition of marriage presumes procreation. Judge Walker asked Cooper about different-sex couples who cannot or do not procreate, and about different-sex married couples who do not procreate “naturally” because they adopt children or need medical assistance to conceive. Cooper returned time and again to the argument that marriage is needed in order to “channel” heterosexual people into having sex, and procreating, within marriage, but was unable to point to any evidence from trial that allowing same-sex couples to marry would have any effect on the “channeling” of heterosexual reproduction into marriage.
Judge Walker’s sharply questioned both Olson and Cooper about the facts presented at the trial. Although it’s risky to predict how a judge might be leaning based on the questions he asked, several of Judge Walker’s suggested that he might be considering applying some type of heightened scrutiny to Prop 8 because it discriminates against people based on their sexual orientation. Judge Walker indicated that in his view, whether a trait is “immutable” and whether the excluded group lacks political power are not the key factors supporting heightened scrutiny. Instead, his questions indicated that he considers it more important that the group have a long history of discrimination based on a factor that is irrelevant to their ability to contribute to society. Based on the evidence presented at trial, that would certainly be true of gay men and lesbians. Ted Olson and David Boies’s team put on compelling expert testimony about the long and painful history of discrimination against LGBT people. If the judge does decide to apply some type of heightened scrutiny, it’s very hard to see how Prop 8 could be upheld. The defenders of Prop 8 offered no evidence that there was even a rational reason, let alone a compelling one, for the voters to single out one category of California couples for unequal treatment under the law.
Judge Walker will now take some time to write a written decision. The judge did not say when he might issue a ruling, but based on his pointed and thoughtful questions today, our community should be confident that the opinion will be thorough, well-reasoned, and evidence-based.
Our highest compliments and deep thanks to the Olson/Boies team. They were brilliant at every turn and litigated this case to a standard that most lawyers can only hope to attain.