Prop. 8 trial: Judge troubled by lack of evidence from defenseBy Howard Mintz hmintz@mercurynews.com
Posted: 06/16/2010 10:33:12 PM PDT
Updated: 06/16/2010 11:24:00 PM PDT
<snip>
SAN FRANCISCO — After five hours of legal arguments Wednesday, the federal judge now considering the legality of California's ban on same-sex marriage did not tip his hand on how he ultimately will rule in a case that appears destined for the U.S. Supreme Court.
After a three-week trial in January, thick cartons of legal briefs filed by both sides and transcripts filled with every imaginable view of gay marriage, it was clear that Chief U.S. District Judge Vaughn Walker perhaps is troubled most by what he has not heard — concrete evidence from backers of Proposition 8 that the law is a constitutional way to protect traditional marriage.
That was the unmistakable theme of much of Wednesday's arguments, which were filled with tough questions for both sides from Walker but distinguished by his open amazement at the lack of evidence from Prop. 8 defenders, who presented just one witness to counter nearly two solid weeks of testimony from the plaintiffs. The closing arguments marked another crucial moment in the unprecedented trial, the first federal court test in the nation of a state's right to forbid same-sex marriage.
"Why did you present but one witness on this subject?" Walker asked Prop. 8 lead attorney Charles Cooper.The question came as Cooper repeatedly tried to argue that voters backed the gay-marriage ban in 2008 to preserve the traditional definition of marriage and to limit the institution to heterosexual couples.
Prop. 8 defenders always have relied on the procreation argument, that the purpose of marriage is for couples to bear children — and so it is legitimate to outlaw same-sex marriages that cannot serve that purpose. Cooper stressed it more than ever Wednesday, saying it was "fundamental to the survival of the human race."
For defenders of the same-sex marriage ban, the argument is critical. Plaintiffs in the case maintain that Prop. 8 was fueled by discrimination and animus against gays and lesbians, saying no legitimate state purpose. Cooper was trying to rebut that argument.
In the trial's first phase, Cooper called one witness whom the judge is considering disregarding altogether because his credentials as an expert are in question. That one witness did not testify on the procreation argument.
"What testimony in this case supports the proposition?" Walker asked.
"You don't have to have evidence of this," Cooper said.
Walker asked why it is OK for the state to allow infertile couples to marry, but not gays and lesbians. "It's not quite the same," Cooper said, insisting that even heterosexual couples who cannot bear children further the traditions of marriage.
Walker still may rule that the state can restrict the definition of marriage, even with the scarcity of evidence from the Prop. 8 side. But former Republican U.S. Solicitor General Theodore Olson, who represents two same-sex couples seeking the right to marry, pounced on Cooper's position in his later arguments.
"You have to have a reason," he said of denying same-sex couples marriage rights. " 'I don't know" and 'I don't have any evidence" doesn't cut it." <snip>
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