Color Commentary: Prop 8 Closing Arguments
A TPP member who attended the closing arguments in the Prop 8 trial on June 16, 2010, shares this first hand account of the day’s proceedings.
There was laughter and there were tears. Allegiances were broken. Humor eased awkward moments. Quick thinking avoided pit falls. These were just some of the elements that made the Perry v.Schwarzenegger closing arguments on June 16, 2010, an ultimate showdown for nerds.
The crowd was hungry. Fans lined up hours early and still stood on pins and needles to see if priority press people would steal all the stadium seats. Two sold-out overflow rooms later, the curtains opened.
Chief Judge Vaughn Walker, a.k.a. The Referee, opened the match by acknowledging that while the nearly four month delay was not desirable, it was, nonetheless, perhaps poetic given that June is the month for weddings. And with that, the bell rang.
From the left, no wait right, no wait… from the libertarian corner, out came Ted Olson, a.k.a. The Solicitor, who came out swinging with over a century of Supreme Court precedent. His jabs were simple and effective. Marriage is a fundamental right older than the Constitution. California voters had “extinguished” this right, “taken away” this right, and “rewritten” the constitution. It is a right of the individual, not an indulgence of the state. He stopped and told the crowd exactly where he planned to land his blows, and he delivered. He tore apart his opponent’s theory that allowing same sex couples to marry would deinstitutionalize marriage, showing clips of his clients’ emotional testimony about the importance of marriage and why domestic partnership is not, as the ref put it, sufficient accommodation, as well as pointing out that the deinstitutionalization argument was used against interracial marriage and failed there too. The Solicitor landed a clean punch with the sentiment that letting homosexuals marry won’t keep the rest of us from marrying, cause us to divorce, or stop us from making babies. The ref stated that the right had a short six-month shelf-life in California, but the Solicitor did not concede that point and stated the right had always existed, it just hadn’t been previously recognized or interpreted by a court.
From the (increasingly isolated) opposing corner, Charles Cooper, a.k.a. Eight, stepped forward, wishing he had a sports headband to sop up the sweat on his brow, and jabbed away at the Solicitor’s case the best he could. But when one of his first jabs is “Your Honor, you don’t need to have evidence,” it just doesn’t feel like a close match anymore.
Eight swung big by alleging that the Solicitor was slandering the millions of Californians who voted for Prop 8, 70 out of 108 judges, Congress for passing DOMA, and state legislature after state legislature, when the Solicitor claimed that Prop 8, and other efforts to “preserve traditional marriage” were motivated by animus. The Ref queried: “if all those people were harmed, why did you have only one witness, whose testimony was equivocal at best?” The sweat poured. “Even that witness was unnecessary for this proposition, Your Honor” came the block, but the ref called the play as “back to the ‘you don’t need evidence’ argument”.
Eight argued that sexual orientation should not be protected, in part because it was not an immutable characteristic, and, unlike religion, does not have First Amendment protection. The Ref posed the question whether most protected characteristics, like gender, were simply social constructions. The Ref also noted that national origin was not always immutable, as it appeared that everyone became Irish on St. Patrick’s Day. Eight conceded he’d experienced that himself. One wonders how long the Referee held on to some of his clever quips.
The rebuttal smashed the usefulness of Eight’s citations, identifying one of the key cases cited as relying on the overturned Supreme Court holding in Bowers v. Hardwick. The Solicitor pounded opponents on the notion that marriage is designed to channel sexual drive into responsible procreation in stable unions, fighting back that if the state decided later that there was overpopulation and procreation should be curtailed, it’s unthinkable that the state could deny all straights the right to marry to discourage child-bearing. The Solicitor drove home that to call the match, the ref need not wait on poll numbers to shift, because a knock-out’s a knock-out.
This was a gay nerd’s dream KO.
