Judge asks Prop 8 lawyer to explain what threat gay marriage poses to conventional marriage.

I’m definitely liking the way the trial in California to determine the constitutionality of the Proposition 8 ban on gay marriage is going. It seems the judge is challenging the Prop 8 lawyer to define the harm from gays getting married:

The unusual exchange between U.S. District Chief Judge Vaughn Walker and Charles Cooper, a lawyer for the group that sponsored Proposition 8, came during a hearing on a lawsuit challenging the measure as discriminatory under the U.S. Constitution.

Cooper had asked Walker to throw out the suit or make it more difficult for those civil rights claims to prevail.

The judge not only refused but signaled that when the case goes to trial in January, he expects Cooper and his legal team to present evidence showing that male-female marriages would be undermined if same-sex marriages were legal.

The question is relevant to the assertion that Proposition 8 is constitutionally valid because it furthers the states goal of fostering “naturally procreative relationships,” Walker explained.

“What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?” Walker asked.

“My answer is, I don’t know. I don’t know,” Cooper answered.

Ooooo, bad answer! That one had to hurt.

But don’t count the Prop 8 folks out just yet. The lawyer managed to recover enough to offer the following justification for the ban:

Moment later, after assuring the judge his response did not mean Proposition 8 was doomed to be struck down, Cooper tried to clarify his position. The relevant question was not whether there is proof that same-sex unions jeopardize marriages between men and women, but whether “the state is entitled, when dealing with radical proposals to make changes to bedrock institutions such as this … to take a wait and see attitude,” he said.

“There are things we can’t know, that’s my point,” Cooper said. “The people of California are entitled to step back and let the experiment unfold in Massachusetts and other places, to see whether our concerns about the health of marital unions have either been confirmed or perhaps they have been completely assuaged.”

In other words, the majority should have the option of suppressing your civil rights until such time that they feel other people someplace else have established there’s no harm in letting you have them.

Yeah, the Judge wasn’t having any of that:

Walker pressed on, asking again for specific “adverse consequences” that could follow expanding marriage to include same-sex couples. Cooper cited a study from the Netherlands, where gay marriage is legal, showing that straight couples were increasingly opting to become domestic partners instead of getting married.

“Has that been harmful to children in the Netherlands? What is the adverse effect?” Walker asked.

Cooper said he did not have the facts at hand.

Again he comes up short and, yet again, he manages to rally:

“But it is not self-evident that there is no chance of any harm, and the people of California are entitled not to take the risk,” he said.

“Since when do Constitutional rights rest on the proof of no harm?” Walker parried, adding the First Amendment right to free speech protects activities that many find offensive, “but we tolerate those in a free society

I like this judge. I like him a lot. I’ve been waiting for someone to make that argument for years. I wasn’t particularly optimistic that a challenged to Prop 8’s constitutionality would have a snowball’s chance in Hell of working, but suddenly the odds seem a lot better. The judge goes on to give even more reason to be optimistic:

Walker made clear that he wants to examine other issues that are part of the political rhetoric surrounding same-sex marriage but rarely surface in courtrooms. Among the questions he plans to entertain at the trial are whether sexual orientation is a fixed or immutable characteristic, whether gays are a politically powerful group, and if same-sex marriage bans such as Proposition 8 were motivated by anti-gay bias.

Excellent! It’s about fucking time someone challenged these assertions in a court of law. Make those assholes put up or shut up.

Of course there’s a chance the Prop 8 folks may prevail, but at least their claims are being questioned this time out and there’s some good reason to hope the ban will be overturned.

28 thoughts on “Judge asks Prop 8 lawyer to explain what threat gay marriage poses to conventional marriage.

  1. Good on this judge. If you’re going to cry unconstitutional based on nothing but hypothetical horribles, you better be prepared to take it to the next level. This lawyer punted, but I’m sure they’ll come back with all kinds of frightening slippery-slope statistics about divorce, and some picture of a guy marrying a goat or some other bullshit.

  2. If it were up to the will of the masses, slavery would still be a legitimate institution and women still could not vote.

  3. Actually he has every right, as a Federal Judge tasked with upholding the Constitution, to reverse the will of the masses if the masses are oppressing the rights of minorities.

    That’s the whole point of the Bill of Rights. To keep the majority from trampling on the rights of the minority.

  4. The masses are asses. This is not the first time the masses have been fooled into voting for something that is not in their best interest. Actually, Prop H8 only lost by less than 2% of the vote. Hardly an overwhelming mandate. Nor is this the first time politicians have lied to get what they wanted. Sadly, it will not be the last time, either.  sick

    I’m really impressed with this judge. Kudos!  grin

  5. Being someone who lives in California, yes it was a very close race, and very sad that it passed.  The whole “Vote on yes for the family” signs up everywhere made me sick.  I’m glad someone in my state finally has the gonads to say, “Look, you guys are just gay bashing now.  Give it a rest.”

    Maybe he can uproot all the funding from religious groups to this political cause, while he’s at it.

  6. Better hope somebody doesn’t come up with a list of the “harm” of heterosexual marriage.

    It’s like I keep saying, get rid of marriage altogether.  What two people want to do with and to each other is completely up to them and not mine (or anyone elses) business.

    If you want to promote families and give them legal protections, then lets come up with something that works better than marriage.  We’re too concerned with the sexual aspects of marriage and we forget the reasons people might get married rather than just live together.

    Oh yeah: and Judge Walker Rocks!

  7. “Cooper cited a study from the Netherlands, where gay marriage is legal, showing that straight couples were increasingly opting to become domestic partners instead of getting married.”

    Even if this were a problem, is there any indication at all that this is because of gay marriage? It seems more like an independent trend…

  8. How quaint that a judge requires facts to be presented in a court of law. The story is great and gives me hope that prop 8 will be overturned, but have had my hopes dashed more than I can count. I will keep my fingers crossed.

  9. Wasn’t it a circuit court judge in Michigan who ruled the state’s sodomy laws unconstitutional in the ‘80’s?

    That judge has always been one of my heroes.

  10. I’ve been asking this question for a long time now with no good answers. The fact is there are no logicals reasons why gay people should be denied the right to legally marry.

    Here is an excerpt from my blog about this very subject: If marriage is strictly religious, fine then it should only be recognized by the church, or whatever religious institution that performed it. It should not have any legal bearing what so ever. It would be strictly a rite performed by the religious institutions, like baptism. If you want your union to be recognized legally then you would have civil unions performed by a judge or J.O.P. If you want both, fine, then have both. That way everyone, straight and gay alike have the same rights. It’s fair and a fairly simple solution.

  11. I like your idea, Velvet, but unfortunately it would require Americans to recognize an important implication of the separation of church and state.  Not a feat of cognition for which our legislature, at least, seems to have much aptitude.

  12. Yes, I know what you’re saying decrepitoldfool. That is, as they say, the rub. The problem is we are subjected to the Christian dogma. I hear all of the time how government is turning its back on Christ. Well the simple fact is Christ has absolutely no business in government.

  13. Well the simple fact is Christ has absolutely no business in government.

    Except the Christians who disagree are scared shitless that society will simply collapse if we go hardline on the Separation of Church and state.  No amount of rational argument will change their minds.  As far as marriage goes, we’ve left it tangled up with religion for so long, it is taken as a fact that they are one in the same.  Telling the RR that this simply isn’t the case will get you, at best, blank stares of incomprehension, and at worst will have them sharpening their knives and building the gallows.

    And these are usually the same people who think that the founding fathers meant the United States to be a Christian country, so it’s no wonder that telling them they’re wrong doesn’t seem to work.  People with a significant amount of Common Sense are a tragic minority in this country, and they’re not real numerous in the rest of the world either.

  14. You know, this might actually work. Hell, it could go all the way to the Supreme Court, and if they come down against it…

  15. If it gets to the Supreme Court, I’ll be happy.  Up until now, the SC has been refusing to hear any case having to do with same-sex marriage.  That means that the lower court ruling stands, which was always in favor of the ban.  If this judge rules Prop 8 unconstitutional, you can bet the other side will appeal it, and if the SC refuses to rule, then the Unconstitutional verdict will stand.

    Considering the makeup of the Supreme Court, they will probably end up reviewing the case, which means those against same-sex marriage will actually have to provide an argument.

    The only problem I see is that with DOMA in place, Prop 8 isn’t unconstitutional, so I’m not sure if it can be ruled as illegal discrimination at the Federal level, but hey…  Women earned the right not to be discriminated against, and protections for them aren’t spelled out in the Constitution.  It is implied, however (which, ironically was used as an argument against both the Bill or Rights and the ERA)  If a Federal judge comes down on the same side in this case, then we’ve made some headway.

  16. An argument I keep NOT hearing (which continues to surprise me); if we accept the Prop H8ers’ declaration that marriage is a religious institution and that, therefore, a vote has no business redefining marriage on teh grounds of freedom of religion, then how is prop 8 not violating the First Amendment rights of those churches that support gay marriage.

  17. Mouse, that is exactly the point that my (would-be) hubby always makes.  It’s an interesting point.

    And in relation to another point raised earlier, I recall reading in another forum somewhere that in at least some (and I would presume, most) European countries, the legal marriage certificate must be obtained from a governmental figure only.  Therefore, church weddings are merely a religious formality and have absolutely no legal standing whatsoever.  But that’s the major problem here, where so many have confused the overwrought religious ceremony with the more practical legal procedure—and understandably so, seeing as we allow priests and ministers (and other hucksters) to “do the honors” of both.

  18. Churches don’t have rights, people have rights. That said, you have a point for those people who believe they have the right to marry someone of the same sex. Interesting direction. It didn’t hold true, however, for Mormons who believed in polygamy. Oh, well, go figure.

    And in the U.S. the marriage must be recorded with the local jurisdiction to be legal, regardless of how the ceremony was performed, or not.

    Then there’s the “common law marriage” concept. Not sure how that works out for same-sex couples.

  19. A couple of problems of gay “marriage” for heterosexuals include 1) the replacement of “mother” and “father” on birth certificates with “progenitor1” and “progenitor2” 2) elimination of the rebuttable presumption of paternity in divorce cases.  Google these if you are unfamiliar with these issues:



  20. And how do these problems harm heterosexual marriage? Please be specific.
    It would appear that the second one could only harm divorce cases.

  21. The courts would have to learn new terms and develop some case law precedent?  Sorry, the deal’s off; we can’t ever change or do anything different.  It would be too hard and complicated.

    “A conservative is a man who does not think that anything should be done for the first time.”
    – Frank Vanderlip

  22. PJ- don’t know exactly all the details, but in the UK some religeous marriages have the force of law- though this may only be C of E as the established church, or possibly all Christian marriages, while other religeons have to get a civil marriage as well.  However the vicar effectively does 2 sets marriage paperwork- one for the church, and one for the law.  I think they are effectively recognised as registrars for the purpose of marriage: the legal stuff still has to be done.

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