Judge poses weighty questions as Proposition 8 trial closes

Five months after the landmark federal trial over banning same-sex marriage began, U.S. District Judge Vaughn R. Walker presided over closing arguments Wednesday, prodding attorneys for five hours about subjects sexual, fundamental, legal and historical.

“Do people get married to benefit the community?” he asked Charles Cooper, who is representing the backers of Proposition 8, which amended the California Constitution by restricting marriage to heterosexual couples.

Would overturning Proposition 8 mean that he was ruling that voters had “discriminatory motives” when they passed the controversial measure, Walker asked Theodore Olson, an attorney for the gay and lesbian couples who sued to overturn the marriage ban. The measure passed 52.3% to 47.7% in November 2008.

Isn’t domestic partnership sufficient, Walker asked, for same-sex couples who want to spend their lives together? Would the case before him be different if gay marriage hadn’t been legal in California for five months, if an estimated 18,000 couples hadn’t legally married and didn’t remain legally married today? And why does the state even regulate marriage?

The federal lawsuit, brought by Kris Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank, argues that Proposition 8 violates federal constitutional rights to equal protection and due process. It began in January with a phalanx of demonstrators in the San Francisco Civic Center and ended Wednesday in the same fashion.

Walker rued the lengthy delay as he welcomed the attorneys back to his courtroom: “I was hoping that we could get this case in before present,” he said. “But it may be appropriate that the case is coming to closing arguments now. June is, after all, the month for weddings.”

As Cooper and Olson clashed Wednesday over even the most basic reasons for tying the knot, Walker reserved his most pointed questions for Proposition 8’s defender, who appeared flustered at times during the lengthy scrutiny.

Responding to Walker’s question about why marriage is regulated by the government, Cooper said the “marital relationship is fundamental to the existence and survival of the race. Without the marital relationship, society would come to an end.”

That relationship, Cooper said, is between a man and a woman, its main focus is “procreation” and it “channels” the sexual behavior of heterosexuals into “stable, marital unions.” Such “procreative sexual relations,” he said, are both a benefit and a “threat” to society.

Pushed by the judge to explain just what kind of threat procreation poses, Cooper said “the state’s concern is if that child is born in a context other than a committed relationship” it could become a ward of the state.

Walker also asked whether the state should “withhold marriage from people who cannot have children” if its sole concern is childbearing.

The fact that states don’t require couples to have children — or at least be able to — as a condition of marriage neither eliminates nor detracts from marriage’s procreative core, Cooper said. Governments can’t make such requirements because couples would have to undergo premarital fertility testing and pledge to have children.

“It is Orwellian,” Walker responded, “but isn’t that the logic that flows from the premise that marriage is about procreation? If that is the premise for marriage, then the steps you just outlined would be reasonable and rational.”

Cooper took the opposing attorney to task for claiming that Californians could support the ban on same-sex marriage only “through irrational or dark motive, some animus, some kind of bigotry.”

And he called Olson’s characterization a “slur” on the millions of Californians who voted for the ballot measure in 2008 and “a slur on 70 of 108 judges who have upheld as rational the decisions by voters and legislators to preserve the traditional definition of marriage.”

Olson’s viewpoint, Cooper said, “denies the good faith of Congress, of state legislature after state legislature and electorate after electorate.”

To which Walker, the judge, responded: “If you have 7 million Californians, 70 judges and this long history, why in this case did you present but one witness? ... You had a lot to choose from. One witness, and it was fair to say his testimony was equivocal.”

During 2 1/2 weeks of testimony, opponents of Proposition 8 called 16 witnesses, while supporters called two. As Olson pointed out during his closing arguments, the case against the measure relied on the emotional testimony of the four plaintiffs, evidence from eight experts and “122 years of Supreme Court decisions.

“And then there was Mr. Blankenhorn,” he said, “who really came over to our side.”

Olson was referring to David Blankenhorn, founder and president of the Institute for American Values and the chief witness for proponents of Proposition 8. Early in his arguments Wednesday, Olson replayed video of Blankenhorn’s January testimony, in which he said he believes that approving “same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children.”

Olson said he was “stricken” by Blankenhorn’s testimony, his admission “on the witness stand that same-sex marriage would yield numerous social advantages” and his declaration that “we will be more American the day we permit same-sex marriage. That is the proponents’ principal witness.”

Olson also repeatedly referred to the Supreme Court’s 1967 decision overturning a Virginia ban on interracial marriage. Forty-one states at one point had similar bans, he told Walker. Proponents of that ban had argued that overturning it would “change the definition of marriage. The court brushed it aside,” he said.

Walker pushed back, reminding Olson that by 1967, 27 states had already removed restrictions on interracial marriage.

“There was already a tide running with respect to interracial marriage, and the Supreme Court took note of that,” Walker said. “Do we have a political tide here that is going to carry the Supreme Court?”

Walker is expected to rule sometime this summer. His decision is likely to be appealed to the U.S. 9th Circuit Court of Appeal and then to the U.S. Supreme Court.