At Prop. 8 appeal, anti-gay marriage attorneys work to make same failed arguments succeed

Attorneys presented oral arguments in the anti-gay marriage Proposition 8 appeal in San Francisco Monday. Prop 8 famously lost in court this summer when Judge Vaughn Walker struck down Prop 8 as unconstitutional for failing to meet equal protection and due process standards. Gay people, he said, can’t be denied rights enjoyed by straight people. He said the burden was on the defenders of Prop 8 to argue why gay people should be discriminated against and in the end he ruled that they had utterly failed to do so.

Today the pro-Prop 8 attorneys seemed again to be struggling to make their case before three randomly chosen Ninth Circuit Court of Appeal judges, Michael Hawkins, a moderate whose vote is expected to be critical in deciding the case; Stephen Reinhardt, a liberal judge appointed by Pres. Jimmy Carter; and Randy Smith, an Idaho conservative appointed by Pres. George W. Bush.

“The clear reason for marriage is that sexual relationships produce children,” argued pro-Prop 8 attorney Charles Cooper (at about 1:30 in the CSPAN video) “When [a relationship] becomes sexual, society has a vital interest. First, society needs to produce its next generation. Second, society’s interests are threatened by an unintentional unwanted pregnancy. A mother raising her child alone directly threatens society’s interests, since society has to assist in raising the child.”

“That sounds like a good argument for prohibiting divorce but how does it relate to two males or two females creating a family unit with children?” replied Reinhardt, and the courtroom burst into laughter.

Cooper is for obvious reasons on the hot seat. He has to convince these judges that the last judge was wrong. He has to persuade them first that his clients have standing to challenge Walker’s ruling and then make the case against gay marriage all over again, even though his arguments last time were found to be inadequate.

Conservative Judge Randy Smith seems so far unconvinced by those arguments now being repeated by Cooper– that is, that marriage is mainly about procreation and that because gay couples strictly speaking can not reproduce, they should be denied the right to marry.

“Your honor, the point of the question is whether or not the state of California has a rational reason to draw a distinction between same-sex couples, who can not without the intervention of a third party of the opposite sex procreate, and opposite-sex couples, who not only can procreate but can do so unintentionally and create unwanted pregnancies. That is not a phenomenon that exists with respect to same-sex couples,” Cooper said.

“But what is the rational basis for [the] initiative when California law says homosexual couples have all the rights of marriage, all the rights of child rearing, all the rights that others have,” said Smith, “what is the rational basis then [for Proposition 8] if in fact the homosexual couples have all the rights that heterosexual couples have? We’re left with a word: marriage. What is the rational basis for that?”

“Your honor, you’re left with a word, but a word that essentially is the institution,” said Cooper. “If you redefine the word, you change the institution. You can not separate the two.” Cooper moved the papers on the podium after this bit and paused. He was again making the rhetorical argument at the heart of his case that still can seem more a matter of philosophy than of law.

Evan Wolfson, executive director of the pro-gay marriage group Freedom to Marry, said in a release that the thinness of the arguments against equality this time match the thinness on display in Walker’s court. The only difference is that this time they’re being broadcast. Cooper successfully battled against broadcasting the Walker trial.

“Today, unable to hide, these same opponents of equality stood before appellate judges and, this time, cameras, and all the world could see what a majority of American people have already come to understand: there is no good reason for continuing to exclude committed loving couples from the legal commitment of marriage. When the gavel came down, it was clear yet again that the anti-gay forces still have nothing. Their case is, in Lincoln’s words, ‘as thin as the homeopathic soup made by boiling the shadow of a pigeon that starved to death.'”

Monday, the California judges leaned heavily on the 1996 Colorado case Romer v. Evans, which overturned Colorado’s Amendment 2. Coloradans voted in favor of the amendment to take away rights granted to gay citizens to protect them against discrimination in employment, housing, health care, et cetera.

“Why aren’t the merits of this case controlled by Romer? … If you take away a bunch of rights that’s bad but if you take away one right, that’s OK?” asked Hawkins (1:33 on CSPAN video). “How’s this different from what happened in Colorado?”

“That was a sweeping, un-differentiating [amendment] … it rendered gay people an isolated class and strangers to the law altogether,” Cooper said. “The court said it was unprecedented in our jurisprudence. The traditional definition of marriage is anything but unprecedented,” said Cooper, arguing that the traditional definition of marriage has excluded gays forever. “It has existed throughout the history of this country. It has been the governing understanding of marriage throughout the country and throughout the world for all time. It’s nothing like the statute in Romer.”

Yet Hawkins returned to questions about the difference between discriminating based on sexual identity and race, saying citizens can’t vote to re-segregate schools, for example. “The Constitution does not allow us to set up classes of people before the law,” he said, where some are more equal than others.

Freedom to Marry has set up a page to answer frequently asked questions about the trial.

[ Image: Charles Cooper on CSPAN making his case ]

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About the Author

John Tomasic

Writer, editor, teacher, web wrangler. He has worked for art, business, culture, politics publications, five universities and a UN war crimes commission. @johntomasic | 720-432-2128 |

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