I’ve been trying to keep abreast of the Prop 8 closing arguments, hitting refresh on several different websites. Through all of this, I have tried to at least, on occasion, take a step back to be as objective as possible. I was always something of a skeptic. After all, much of our judiciary has been appointed by Republicans. It just seemed like the logical conclusion of all this was some sort of temporary victory for Maggie Gallagher’s team. However, all that being said, I am now coming to the conclusion that our odds really aren’t that bad. And in many ways, the real legal reach would be to not overturn Prop 8.
That isn’t to say that Prop 8 will be overturned by the Supreme Court. The Roberts court has been known to make a few reaches of legal logic in the past, and a decision favoring Cooper’s case would not really shock anybody. But, the case that the legal team, headed by Olson and Boies, has built here is really quite solid.
As Rick noted, Judge Walker spent much of the day trying to get a legally valid point to emerge from Cooper’s mouth. But, when it comes down to it, this is the heart of their case:
The legislative process involves setting priorities, making difficult decisions, making imperfect decisions, and approaching problems incrementally. That process is what is at work in this state.
And it’s at work elsewhere in this country. And as the court…said, there is a debate about the morals, the practicalities, and the wisdom of this issue that really goes to the nature of our culture. And the constitution should allow that debate to go forward among the people.
In other words, what Cooper is arguing here is that despite how wrong Prop 8 might be, it should still stand. He has essentially given up on arguing that Prop 8 is actually accomplishing some valid purpose. Instead, he is relying on the “rational basis” test to argue that the state legislative authority allows Prop 8 as some sort of valid exercise because the state might have some sort of “channeling” power towards marriage. (Who exactly they are channeling remains an open question. Because, I’m pretty sure I will not be channeled anywhere.)
He doesn’t bother to claim that this is a good idea, or a just idea. Rather, it simply a “rational basis” to legislate from.
Trouble is that, quite simply, it is not a rational basis. I don’t think I can say it any better than Ted Olson:
So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation? They are not a threat to us. What is one single bit of evidence if you accept the channeling function if you accept the right that the State of California has the right to do that and I do not this is an individual constitutional right and every Supreme Court decision says it’s the right of the person. It’s not the right of the State of California to channel us into certain activities or in a certain way.
There’s a long way to go folks, but today was a good day. Even if we lose at the Supreme Court, this case has been a valuable exercise for the nation. Cross-posted from Prop 8 Trial Tracker
with the connection Olson made between the Supreme Court’s, especially swing vote Kennedy’s) own rulings making marriage an individual right in ‘Loving’ and sexuality an individual right in ‘Lawrence’, but am concerned about Cooper’s attack on strict scrutiny via the mutability issue. Suppose it depends on whether whether we can win without meeting strict scrutiny hurdles and whether mutability is an essential ingredient for strict scrutiny, and what mutability means. Sexual orientation is certainly mutable, but mostly we observe it in going from straight to gay, although there is some vice versa. And also whether mutability just means change or variation over time or change at will. In my view, it should not matter whether it is an intrinsic orientation or a choice, for instance, for those who have the choice. (It’s supposed to be a free country, isn’t it)
Thanks to Cleve and others for getting the arguments online.