I kept an intermittent eye on the closing arguments to the Prop 8 trial yesterday; there was liveblogging for much of the day from Firedoglake, and there was an interesting automatic transcription in realtime from the American Foundation for Equal Rights. (It kept making text-to-speech errors like “I am mutability” for “immutability,” but it mostly wasn't too hard to get the gist of what the lawyers were saying.)
The closing arguments from our side, by Theodore Olson (hey! he grew up in Mountain View!), were pretty good, so I'm going to skip talking about them here. Then came the defendants' closing arguments, by Charles Cooper.
[Added later: boy is this long. Sorry about that. I've added some bolding to a few key lines that summarize Cooper's argument; if you're in a hurry or your eyes are glazing over, just scroll down and look for the boldface.]
(I'll be quoting below from the official transcript (160-page PDF).)
Cooper started by giving what I initially thought was the standard argument that marriage is to promote procreation:
[...] the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.
And added that marriage is really important:
[...] the marital relationship is fundamental to the existence and survival of the race. Without the marital relationship, your Honor, society would come to an end.
Judge Walker attempted to head off the standard “marriage is all about procreation” argument, noting that “the state doesn't withhold the right to marriage [from] people who are unable to produce children of their own.”
But Cooper replied, essentially, that the reason the state wants opposite-sex couples to get married is to keep them from having kids out of wedlock.
[Added later: Yes, I know, that sounds fairly reasonable on the face of it; sure, society has an interest in kids being raised by a strong family. But that's not all Cooper is saying. Keep reading.]
First he noted that it's in the state's interest to “attempt to channel into the marital union all potentially procreative relationships, as well as all male-female relationships.”
(So presumably every time a man and a woman have a one-night stand, the state should be trying to convince them to get married. Perhaps this interest could be served by putting state-sponsored wedding chapels in bars.)
Then he said that doing fertility testing on couples who wanted to get married would be “Orwellian.” Judge Walker agreed, and added, “but isn't that the logic that flows from the premise that marriage is about procreation?”
And Cooper replied that the state's goal is to
increase the likelihood [...] that naturally procreative sexual relationships will take place in an enduring and stable family environment for the sake of raising the children so that essentially the society itself [...] doesn't have to step in and take upon its own shoulders the obligations to help in the raising of those children.
And so society doesn't run the risk of all the negative social consequences that come from, say, unwed mothers raising children by themselves, and such as that.
[Added later: Again, yes, obviously society is in favor of two-or-more-parent households. But that's not an argument against same-sex marriage!]
So of course Judge Walker is all like What about adopted kids?
And Cooper replies like so:
[...] with respect to adoptive children, yes, the state does make arrangements and it does create in law a relationship that is in all respects, virtually all respects, identical to a natural and biological relationship. It does that, again, for the sake of children, for the sake of the upbringing of children, and creates with respect to those children rights and responsibilities in their adoptive parents that are the natural—result of natural procreation.
(Um, what does that have to do with marriage being about procreation?)
There then ensues several pages of Cooper attempting to justify his point about procreation by quoting a bunch of other court cases and laws and such, items which were not previously introduced as evidence in the trial itself. Judge Walker finally gets, I think, a little fed up with Cooper's attempts to introduce new evidence at this late stage; Walker says:
If you have got 7 million Californians who took this position, 70 judges, as you pointed out, and this long history that you have described, why in this case did you present but one witness on this subject? One witness. You had a lot to choose from if you had that many people behind you. Why only one witness? And I think it fair to say that his testimony was equivocal in some respects.
But Cooper goes back to expounding about channeling procreative urges. He even brings up the usual argument these days that Loving v. Virginia is irrelevant to same-sex marriage, because that case was all about fighting the evils of racism, but it was a man and a woman who wanted to get married so it was still part of the procreative framework of marriage. Yes, people at the time said that different races shouldn't interbreed, but those people were bad and wrong, unlike us enlightened folks today who have no prejudices at all. Cooper adds that the restriction on interracial marriage was contrary to (nay, was at war with!) the very purpose of marriage, which is to prevent illegitimate children.
Walker, naturally, asks:
Why isn't the limitation on marriage for gay couples and lesbian couples similarly at war with their desires to raise children, raise their own children in the context of a marriage partnership?
Cooper says: But that's different! (Or rather: “There are distinguishing characteristics.”)
And now we come to the beginning of the core of Cooper's argument, which is kind of breathtaking in its novelty:
As the Eighth Circuit said, your Honor, only opposite-sex couples can procreate naturally and, therefore, it is only opposite-sex couples who uniquely, uniquely address this fundamental historic purpose and who present, most importantly, uniquely, the threat to the society's interests that marriage is designed to minimize, the threat of irresponsible procreation, the threat—the reality that when procreative sexual relationships between men and women are not channeled into marriage and these stable unions with these binding vows, then much more frequently the society has to—has to itself cope with the adverse social ramifications and consequences of that kind of irresponsible procreation.
Yes, you read that right:
The lawyer who is in charge of the defense of Prop 8 says that opposite-sex couples are a threat to society because they might irresponsibly procreate outside of a stable relationship, and that the main point of the existence of marriage is to prevent that irresponsible procreation.
And thus, obviously there's no point in letting same-sex couples marry, because there's no chance of their irresponsibly procreating by accident.
No, really. You may think I'm joking or exaggerating or misinterpreting, but look:
[...] the state's main concern or certainly among the state's main concern[s] in regulating marriage, in seeking to channel naturally procreative sexual conduct into stable and enduring unions is to minimize what I would call irresponsible procreation. It's not a good term, but I can't think of a more serviceable one. And that is, procreation that is—that isn't bound by the kinds of obligations and social norms that the marital relationship is and that often leads to children being raised by one parent or the other or sometimes neither parent.
That is a phenomenon that is uniquely centered on naturally procreative sexual relationships between men and women. It is—it is not a phenomenon that the state has to be concerned about with respect to same-sex couples.
For a same-sex couple to procreate it, by definition, has to be responsible. It can't be by accident. That's the key point.
[Added later: I think all the verbiage may have obscured my point, which is that this is not a good argument against same-sex marriage.]
It goes on. Judge Walker says there are plenty of opposite-sex couples who don't or can't procreate without help. Cooper replies, “it is not those opposite-sex couples either that the state is concerned about,” and adds:
The opposite-sex couple where one of the partners is infertile, for example, or the same-sex couple can't unintentionally procreate, but [...] allowing them to marry isn't something that is inconsistent with the purposes of—the core procreative purposes of marriage and, in fact, in certain respects it advances those purposes[...].
[Because if an infertile couple gets married, then] the fertile member of that couple will be less likely to engage in sexual relationships with third parties and raise anew a threat of some type of unintentional or what I have been referring to previously as irresponsible procreation.
[...But] the gay couple, unlike the opposite-sex couple where one of the partners may be infertile, doesn't represent—neither partner in the—with respect to the same-sex couple is—again, assuming homosexual sexual orientation—represents a concern about irresponsible procreation with a third party.
So as far as I understand it, Cooper is saying:
- A man and a woman, left to their own devices, without benefit of marriage, might accidentally engage in “irresponsible procreation.”
- And so we try to convince them to get married so that any procreation that happens will be within a longterm stable relationship.
- We also let opposite-sex couples who can't or won't procreate (or can't without third-party help) get married, because, well, why not? Doesn't hurt anything, and it keeps them off the streets. One of them might be fertile, and if we don't let them marry an infertile person, they might go off and breed with someone else by accident.
- But we shouldn't let same-sex couples get married, because (a) they can't accidentally have kids, so they don't need to get married to avoid irresponsible procreation, and (b) there's no chance of them going off and breeding with someone else by accident.
By this time I was about ready to scream. This is the basis on which you want to deny the right to marry to an entire class of people? It's not only probably the most bizarre, circular, gigantic-hole-filled argument against same-sex marriage that I've encountered, it's also (as far as I can tell) a new one, constructed out of whole cloth by Cooper. I've seen lots of people claim that the point of marriage is to promote procreation (including Cooper's team during the Prop 8 trial), but I've never before seen anyone turn it around and claim that the point of marriage is to stop heterosexuals from destroying society by accidentally uncontrollably breeding out of wedlock (but it's fine for homosexuals to breed out of wedlock, because allegedly that can't happen accidentally, only on purpose). (In fact, it's such an off-the-wall argument that Olson later misinterpreted what Cooper was saying, unfortunately.)
[Added later: Here again I think I accidentally obscured my point. My point is: Even if it's true that the only purpose of marriage is to keep straight people from accidentally having kids outside of relationships, that's no reason to prevent same-sex couples from getting married! Cooper is taking the basic reasonable idea that stable parental relationships are good for kids, and turning it on its head by saying that the only kids that need stable parental relationships are the ones who are conceived accidentally by straight couples.]
But wait: it gets worse.
Because (after a couple pages of attempting to claim that everyone who voted for Prop 8 did so for this procreative reason), the next thing Cooper said was that he didn't really need to make any arguments or present any evidence, because gays aren't a suspect class and thus it's up to the plaintiffs to prove that there couldn't possibly be a rational basis for the discrimination.
This is an utterly infuriating argument.
And yet, I suspect that if the Prop 8 people prevail in this case, it'll be because of that argument.
For our side to succeed, as I understand it, Walker has to either decide that gays are a suspect or quasi-suspect class (which there's some precedent for and some against), or decide that they're a non-suspect class but that there's no rational basis for discriminating against them in this way. I'm hoping that he'll decide one or the other of those things, but that seems uncertain to me.
It would also be theoretically possible, of course, for him to decide that Cooper's procreation argument makes sense, but that seems vanishingly unlikely to me, given how weird and incoherent it was, and how little it had to do with the (flimsy) case that Cooper's side had presented during the trial itself.
Theodore Olson went on to give a stirring and eloquent rebuttal to those of Cooper's points that were subject to rational debate. Olson is awesome.
Here—just so I don't have to end with the bad taste of Cooper's argument in my mouth, let me quote Olson's closing rebuttal a bit:
[Marriage] is an individual constitutional right. And every Supreme Court decision says that it's a right of persons. Not the right of California to channel those of us who live in California into certain activities or in a certain way.
What we're talking about here is allowing individuals who have the same impulses, the same drives, the same desires as all of the rest of us, to have a relationship in harmony, stability, and to form a family and a neighborhood, all of those things that the Supreme Court talked about.
And, now, tell me how it helps the rest of the citizens of California to keep them out of the club. It doesn't.
[In fourteen Supreme Court cases], they talked about the fundamental right to marriage as an individual right in the context of contraception, which is not procreative, interracial marriage, which is neutral on the subject, divorce, which is not channeling somebody into a relationship, mandatory leave for public school teachers, family occupancy of a particular family home, prisoners, and so forth.
[Repealing] Proposition 8 isn't changing the institution of marriage. It is correcting a restriction based upon sex and sexual orientation.
Now, rational basis, strict scrutiny, or some kind of intermediate scrutiny tells you those are basic facts. You are discriminating against a group of people. You are causing them harm. You are excluding them from an important part of life. And you have to have a good reason for that.
And I submit, at the end of the day, [that Cooper's] “I don't know” and “I don't have to put any evidence,” with all due respect to Mr. Cooper, does not cut it.
It does not cut it when you are taking away the constitutional rights, basic human rights and human decency from a large group of individuals, and you don't know why they are a threat to your definition of a particular institution.
That is not acceptable. It's not acceptable under our Constitution. And Mr. Blankenhorn is absolutely right. The day that we end that, we will be more American.
(For those who missed it during the trial, Blankenhorn was the defense witness who made several statements that appeared to support same-sex marriage, including the great line (from his book) “[W]e would be more American on the day we permitted same-sex marriage than we were on the day before.”)