Litigation

Judge Hears Closing Arguments in Prop 8 Trial

By Peter Hardin

The history-making trial of a legal challenge to California’s prohibition on same-sex marriage came to a close with the judge showing  skepticism toward the ban’s defenders.

“The marital relationship is fundamental to the existence and survival of the race,” argued attorney Charles Cooper on behalf of supporters of the ban, approved by voters as Proposition 8. ?Without the marital relationship, your honor, society would come to an end.? Cooper said the purpose of marriage is procreating and bringing up children.

Judge Vaughn R. Walker “sounded dubious,” according to a San Francisco Chronicle article. “Marriage is a right which extends fundamentally to all persons, whether they’re capable of producing children, incarcerated or behind in their child-support payments,” Judge Walker said, noting earlier Supreme Court rulings permitting people in those circumstances to marry.

It was the first trial in a federal courtroom to take up the question of whether states can prohibit gays from marrying, according to the Associated Press. Judge Walker did not issue a decision from the bench, and any decision he makes could be appealed all the way to the Supreme Court.

Former U.S. Solicitor General Theodore Olsen, representing plaintiffs challenging Proposition 8, contended that the Supreme Court has declined to make procreation a condition of marriage.

“It is the right of individuals, not an indulgence to be dispensed by the state,” he said. “The right to marry, to choose to marry, has never been tied to procreation.”

Olson said the case centered on “marriage and equality: the fundamental constitutional right to marry has been taken away from plaintiffs.? He added, ?Their state has rewritten its Constitution in order to place them in a special disfavored category.?

According to a New York Times article, the opposing lawyers framed “the issue as a war between the civil rights of gay men and lesbians and the traditional understanding and role of marriage. And tradition seemed on the losing side of the argument.”

Full post as published by The Gavel on June 17, 2010 (boomark / email).