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.