The closing arguments in the Prop 8 trial concluded yesterday with Ted Olson arguing for equality and Charles Cooper arguing for continued discrimination (I'm biased, sue me). By all accounts, things went very well for our side. Olson is one of the best lawyers in the nation and we are lucky to have him advocating for us.
Cooper contended that Prop 8 can only be overturned if there is no rational basis for it. His arguments focused on procreation as that rational basis. Amazingly, when Judge Walker asked for evidence that procreation is the basis for marriage, he said evidence is unnecessary because it's self-evident. As a lawyer, I find that answer stunning. When a judge asks for evidence that means you have failed as a lawyer unless you can point to some. As a human being, I find it absurd. My sister married at the age of 57 with her grown daughter as her maid of honor. I really don't think procreation was the basis of that marriage, yet the Catholic priest did not hesitate to perform the ceremony. My sister is straight and married a man. If procreation really is the basis for marriage law, why are gays the only ones prohibited from marrying because of our supposed inability to procreate?
Olson, on the other hand, argued brilliantly, by all accounts. He argued that marriage is a fundamental right and there is no good reason to deny that right to gays. He argued that Prop 8 fails under either rational basis or strict scrutiny. Strict scrutiny is the legal standard by which laws affecting people due to race are examined. Federal courts have not applied it to gays.
Here's Kate Kendall of the National Center for Lesbian Rights on her impressions of the closing arguments:
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