On Wednesday lawyers made their final arguments in a federal case challenging the constitutionality of Proposition 8. While Maggie Gallagher, a major defender of traditional marriage said she expected the lower court to overturn the decision, she was confident of victory at the Supreme Court.
Prop. 8, a 2008 ballot measure which restored the definition of marriage to being between a man and a woman, has been challenged by same-sex couples who claim it violates their civil rights.
Theodore Olson, U.S. Solicitor General during the President George W. Bush administration, spoke on behalf of the plaintiffs.
He contended that the ballot measure was discriminatory against homosexual couples, arguing that tradition or fears of harm to unions between men and women were legally insufficient grounds, the Associated Press reports.
"You can't have constitutional discrimination in public schools because you have always done it that way," commented Olson.
He said the Supreme Court has allowed prisoners serving life sentences to marry. He argued that the courts have refused to make procreation a precondition of marriage, citing laws allowing divorce and contraception.
Charles Cooper, a former U.S. Justice Department lawyer, represented Prop. 8 sponsors. He said that cultures around the world, previous courts and Congress have all accepted the “common sense belief that children do best when they are raised by their own mother and father.”
"The plaintiffs say there is no way to understand why anyone would support Proposition 8, would support the traditional definition of marriage, except through some irrational or dark motivation," Cooper remarked, according to the Associated Press. "That is not just a slur on the 7 million Californians who supported Proposition 8. It's a slur on 70 of 108 judges who have upheld as rational the decision of voters and legislatures to preserve the traditional definition of marriage."
For his part, Olson argued that marriage is “the right of individuals, not an indulgence to be dispensed by the state” and that the right to marry has “never been tied to procreation.”
Chief U.S. Judge Vaughn Walker, who presided over the trial, pressed Olson on this point, saying supporters of Prop. 8 have argued that homosexuals can only have children with assistance from a third party.
“That is a difference,” said Judge Walker, who is homosexual.
Olson contended that this argument would only be constitutional if Prop. 8 supporters had proven that allowing homosexuals to “marry” was a threat to heterosexual relationships. He said this had not been proven.
Cooper argued that the plaintiffs opposing Prop. 8 had to prove that voters lacked justification for outlawing same-sex “marriage” and had to negate “every conceivable rational basis.” Warning of the fallout from a judicial decision, he urged the judge to avoid the “judicial tsunami they are asking you to sail into.”
Judge Walker asked the Prop. 8 supporters whether arguments similar to theirs were once used to keep interracial couples for marriage. He also inquired why the state did not refuse to recognize marriages contracted by infertile couples or by the deliberately childless if marriage was about procreation.
Cooper responded that it would be impractical to test for fertility or to require pledges to have children. He said that bans on interracial marriage “had no foundation in the historical purpose of marriage, and in fact they were at war with it.”
According to the Associated Press, Judge Walker appeared to consider whether he should declare Prop. 8 unconstitutional when public opinion appears to be moving toward accepting same-sex “marriage.” A premature edict could harden public opinion like the 1973 Supreme Court decision which instated permissive abortion laws nationwide, the judge explained.
Olson claimed that there is “a political tide running” and said a judge should not wait for polls before he can “break down this barrier and change this discrimination.”
Maggie Gallagher, former president of the National Organization for Marriage, which backed Prop. 8, said “the future of marriage in all 50 states” was at stake. Praising Cooper, she said he was right that the attempt to “shut down the debate by constitutionalizing gay marriage” will backfire.
“Americans have a right to vote for marriage. Ted Olson doesn't seem to understand the argument, and judging from today's exchanges neither does Judge Walker.
“I expect Judge Walker will overrule Prop 8,” commented Gallagher. “But millions of Americans do understand why marriage is the union of husband and wife and I believe the majority of the Supreme Court will as well."