I had a bit of time to go over the responses to Judge Walker’s questions, much like some of my fellow Trial Trackers did in the comments to a post with the parties responses to Judge Walker’s questions.

First, let’s get this one out of the way: don’t expect anything new.  By definition, closing arguments are something of a summary of what’s come before.  What you see in closing argument is each side pressing their advantages, and this case is no different.

See more over the flip…

So what are the proponents’ advantages? Well, if you read more than a page of their responses you see what they think is their strong point: rational basis scrutiny. In other words, Pugno and the gang believe that because gays and lesbians have never been considered a “suspect class” under the law, they are the ones defending the strategic ground.  They only need to prove that there was some “rational basis” for the state to enact the legislation, nothing more.

As you go through their responses you will see this as the dominant theme. And that’s reflected in two ways.  First, their rather persistent repetition of the fact that they believe rational basis review applies here. I think I lost count of the number of occasions they brought it up, but I was over two hands on it.  Of course, Judge Walker asks this question to both sides, and the answers are instructive.  While not the most thrilling question on the list, it does go to the heart of the matter.  I offer them here, omitting citations:

Prop 8 Proponents:

Because same-sex marriage is neither “objectively, deeply rooted in this Nation’s history and tradition” nor “implicit in the concept of ordered liberty,” and because Proposition 8 does not classify on the basis of a suspect or quasi-suspect characteristic, Plaintiffs claims are subject to  rational basis review.  Proposition 8 thus “bear[s] a strong presumption of validity,” and  Plaintiffs “have the burden to negative every conceivable basis which might support it.” (Page 31)

Plaintiffs:

Prop. 8 infringes on Plaintiffs’ fundamental right to marry (as well as their fundamental right to privacy and personal autonomy) and discriminates on the basis of sexual orientation and sex.   Because Prop. 8 impairs fundamental rights and discriminates on the basis of suspect classifications,  Proponents bear the burden of proving that Prop. 8 is narrowly tailored to further a compelling state  interest.  In the alternative, if the Court  concludes that strict scrutiny is not appropriate, then Proponents would bear the burden of proving  that Prop. 8 is substantially related to an important state interest because Prop. 8 infringes on  Plaintiffs’ right to marry and their right to privacy and personal autonomy-which are significant  liberty interests-and discriminates on the basis of sexual orientation and sex, which are both (at a  minimum) quasi-suspect classifications.  If  the Court concludes that rational basis review applies, then it should examine the interests that  Proponents offer for Prop. 8 to determine whether they are legitimate state interests.  If the  interests are legitimate, then Plaintiffs would be required to prove that Prop. 8 does not in fact  “advance” those interests.

You’ll notice that the Plaintiffs response is much longer, and to be blunt, this is because they offer a complete response.  The Proponents answer only in their optimal case, while the plaintiffs look at all possible scenarios. Much of that completeness is just law school textbook stuff, but it is worth repeating on this site as often as possible.  Especially when it is actually in the filings.

To summarize the plaintiffs position a little bit, what they are saying is that they believe that a) gays and lesbians are/should be a suspect class and that b) the proponents must prove their case accordingly.  Now, I should point out that in In re Marriage Cases, the 2008 decision that made my marriage possible, the California Supreme Court said that sexual orientation is a suspect class under the California Constitution. That doesn’t apply to the federal courts, who are interpreting the federal Constitution, but it is worth noting. However, no federal court has ruled that the federal Constitution does view sexual orientation as a suspect class.  This case seeks to change that. It’s a broadening of the law, but one that is reasonable considering recent jurisprudence.

The plaintiffs also suggest that if strict scrutiny isn’t going to apply, then intermediate should.  This is primarily used on gender cases, but there is sound legal argument on this front as a sort of midway point.  And finally, they point to rational basis, the least favorable test, acknowledging their own burden under that situation.

The bulk of the rest of the proponent responses tries to shoe-horn in as much of their crazy evidence as possible.  They’ve got the discredited Netherlands data in there on page 14. See my post during the trial highlighting the evidence debunking that. Long story short on that: Did marriage rates decline since the Netherlands allowed same-sex marriage? Yes, but at a slower rate than at periods before that.  Thus, if anything, it proves our point, not theirs.

On pages 12-13, they have their wildly generalized, and far from conclusive, evidence showing that we don’t make as good of parents.  Except not so much. Their strongest evidence for that point is a response that doesn’t even look at same gender parenting, rather, it is more accurately viewed in the context of single parenting.  But, on the facts, the proponents/defendants are really grasping at straws.

Inversely, the plaintiffs are chock full of facts. On page 20 of the plaintiffs response, they go over the testimony showing few poor effects on the institution of marriage in jurisdictions where same sex marriage is the law, primarily from the evidence of Drs. Badgett and Cott.  And of course, there are these quotes from the eloquent tongue of the proponents’ star witness: David Blankenhorn:

Indeed, Mr. Blankenhorn himself conceded on cross-examination that allowing gay men and lesbians to marry would “be a victory for the worthy ideas of  tolerance and inclusion” and “a victory for, and another key expansion of, the American idea.”    Mr. Blankenhorn conceded that allowing gay men and lesbians to  marry “would probably reduce the proportion of homosexuals who marry persons of the opposite sex  and, thus, would likely reduce instances of marital unhappiness and divorce” ,  and also “would likely be accompanied by a wide-ranging and potentially valuable national  discussion of marriage’s benefits, status and future.”  

Thus, the questions for the court really are what standard to apply, and how to apply that standard.  If we are on the rational basis test, our burden is considerably higher, but as noted above, the facts the defense offered were paper-thin with more holes than a nice block of Emmentaler cheese.

That being said, there is a way for either side to win this case.  Rational basis standards have been known to allow some weak logic through the gates.  Of course, it is my sincere hope that Judge Walker takes a look at that Swiss cheese case, and sees right through it.  However, I will be eagerly awaiting the argument tomorrow.