HRC Blog

Prop 8 Closing Argument Wrap-Up

As we told you earlier this week, Chief U.S. District Judge Vaughn Walker heard closing arguments yesterday in Perry v. Schwarzenegger, the landmark case challenging Proposition 8. Former Solicitor General and plaintiffs’ attorney Ted Olson was first up yesterday. Olson, along with David Boies, his opponent in arguing the historic Bush v. Gore case, formed the plaintiff-side power-duo in this case, arguing to overturn the State’s discriminatory marriage law. Live coverage reports indicate that Olson opened with an appeal to the inherently discriminatory nature of the ban. "We conclude this trial where we began," Olson told the court. "This case is about marriage and equality. Their state has stigmatized them as unworthy of marriage." As expected, Judge Walker was an active participant in the proceedings, interjecting all morning with questions ranging from the role of federal courts to weigh in on contentious social issues to why domestic partnerships are not sufficient for same-sex couples. Olson’s responses were strong and rooted in solid legal reasoning. An NPR story from this morning captured Olson’s bottom line: supporters of Prop 8 were trying to deny gays and lesbians the fundamental right to marriage. “The Supreme Court said [marriage is] inherent to the right to privacy, in liberty, in association, in spirituality, and to be able to identify ourselves,” Olson told reporters following yesterday’s session. “That is the quintessential right of Americans and it’s being taken away.” Attorneys for the State of California waived their right to offer a defense of the law, as Attorney General Jerry Brown believes the ban is unconstitutional and Governor Schwarzenegger believes the courts should make the final decision. Last up was lead defense attorney Charles Cooper. Cooper began by arguing that the state has a compelling interest in promoting the institution of marriage for procreative purposes and to do this the state must limit marriage eligibility to heterosexual couples. As Cooper continued to put forth arguments against marriage equality, Judge Walker engaged him in a lively line of questioning about Cooper’s lack of evidence, Supreme Court precedent surrounding marriage, due process and privacy, and Cooper’s lack of an expert witness. (Judge Walker is considering omitting testimony from the defense’s only expert witness David Blankenhorn, whose credibility has been attacked from both sides of the debate.) At the end of the day, the proponents of marriage equality had more compelling evidence (and more evidence in general) and sounder legal reasoning than their opponents. As Olson stated in his final response to Cooper yesterday afternoon, “"I don't know, I don't have any evidence,' doesn't cut it" as an argument against marriage equality. But nearly 6-months after the trial began, the fate of this historic case is now up to Judge Walker. And despite the strong arguments presented by Boies and Olsen, Perry is not expected to end at the trial level. Advocates on both sides of the case believe that  the legal battle will continue after Judge Walker issues his ruling, likely bringing the case before the 9th Circuit and perhaps all the way to the Supreme Court. Thanks to HRC Legal Assistant Jessica Singleton for this post.

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