American Foundation for Equal Rights

San Jose Mercury News: Prop. 8 trial closing arguments: Live coverage from the courtroom


The final arguments in the landmark Proposition 8 trial have ended, with the case now in the hands of Judge Vaughn Walker. Read Howard Mintz’s recap of the day’s proceedings later today online on this Web site and in tomorrow’s Mercury News, Contra Costa Times, Oakland Tribune, and other Bay Area News Group papers.

4:02 p.m.: Arguments end, case in judge’s hands

As he winds up his rebuttal argument, plaintiffs attorney Theodore Olson is pouncing on the lack of evidence presented on the other side for denying same-sex couples the right to marry. “You have to have a reason for that,” he said. ‘ “I don’t know, I don’t have any evidence,’ doesn’t cut it.”

Walker has just ended the session for the day and the fate of Prop. 8 is now in the judge’s hands.

3:01 p.m.: Defense winding down closing arguments

Prop. 8 lawyer Charles Cooper is close to winding up his closing arguments. Again, he repeated the core argument in the defense of the law: “The right to marry,” he told Judge Vaughn Walker, “is bound up with the fundamental purpose of procreation and the existence and survival of the human race.” Plaintiffs lawyers will have a brief opportunity to provide a rebuttal argument to conclude the day. The judge, meanwhile, indicated he’s considering striking the testimony of David Blankenhorn, a family values leader who was the only witness for the Prop. 8 defense (and the judge is already clearly troubled that Prop. 8 lawyers didn’t put on much evidence in the first place). Plaintiffs lawyers have argued that Blankenhorn doesn’t qualify as an expert.

2:33 p.m.: Judge and Prop 8 attorney continue lively exchange

Prop. 8 defense lawyer Charles Cooper has continued his lengthy argument to uphold the legality of California’s same-sex marriage ban. And Judge Vaughn Walker continues to engage him in a lively exchange over whether there is justification for the ban that doesn’t violate the constitutional rights of gay and lesbian couples.

At one point, the judge noted that many similar arguments were raised before the U.S. Supreme Court in 1967 finally outlawed state bans on interracial marriage. “Why are we not at that same tipping point here with respect to same-sex marriage,” Walker asked Cooper.

Cooper, however, insisted the two civil rights fights are completely distinct. He noted that bans on interracial marriage actually conflicted with the “fundamental ‘ reason for marriage laws, that being to foster procreation. That, he said, is different than restricting marriage to heterosexual couples.

Walker has also asked about why there is a difference between providing domestic partnership rights, or why it is different for the state to allow infertile couples to marry, but not gays and lesbians. “It’s not quite the same,” Cooper said of allowing couples to marry if they need egg or sperm donors to procreate

1:40 p.m.: Judge asks Prop 8 attorney “where’s the evidence?”

It was inevitable that Prop. 8 lead lawyer Charles Cooper would find some rough sledding over the fact that the defense put on just witness in January’s three-week trial. And Judge Vaughn Walker has doused him in hot water on the topic for the past 20 minutes.

When the judge repeatedly asked Cooper what evidence his side had for the argument that barring

gay marriage is justified to promote the procreative purpose of traditional marriage, Cooper kept insisting that the premise is self-evident. And that countless courts have found that to be the purpose of traditional marriage. And that millions of Californians backed Prop. 8 to preserve traditional marriage and the need for couples to bear children.

Where’s the evidence? Walker asked.

“You don’t have to have evidence of this,” Cooper tried to assure him.

The judge tried again.

“Why in this case did you present but one witness on this subject?”

The argument continues.

Read the full piece here.