Professor David B. Cruz

Because this is a bench trial in front of a judge who will make factual findings and conclusions of law, closing arguments may be less critical than they might be in a jury trial. Nevertheless, the arguments still attempted to summarize what each side believes was proven by the evidence and how that satisfies the law they maintain should govern the case.

Ted Olson’s closing arguments were crafted with a rhetorical force that may be designed not merely to try to persuade the trial judge but to speak to broader audiences: the judges of the Ninth Circuit, which will decide the inevitable appeal in the case; the Justices of the U.S. Supreme Court, who might well choose to hear an appeal once the Ninth Circuit has ruled; the people of California, the U.S., and perhaps the world; and the judgment of history.

Charles Cooper’s arguments, more frequently interrupted by Judge Walker, seemed less sweeping in scope and more narrowly hewing to his arguments that courts should defer to the political majority that adopted Proposition 8.

When a discriminatory law is challenged under the Equal Protection or Due Process Clauses of the U.S. Constitution, a large body of doctrine requires courts to use one of a few “standards of review” to consider both the strength of the government’s interest or purpose or purposes and the “fit” of the discrimination, how closely it is related to those purposes. The Plaintiffs challenging Prop 8 and the Defendant-Intervenors supporting the measure disagree about the standard that should apply. The Plaintiffs argue that the court should use the very difficult to satisfy test called "strict scrutiny," requiring the government to prove that Prop 8 is narrowly tailored or necessary to serve a compelling governmental purpose.

In the alternative, they argue that Prop 8 should at least have to satisfy intermediate scrutiny (sometimes called “heightened scrutiny” in the proceedings), which would require the defenders to prove that Prop 8 is substantially related to an important governmental purpose. “Compelling” purposes are weightier than “important” ones, which are “weightier” than “legitimate” ones; “narrowly tailored” laws are drafted more closely to their purposes than are “substantially related” laws, which have a tighter fit than laws only “rationally related” to their purposes.

Prop 8’s defenders, in contrast, argue that the court should use the most deferential standard, rational basis review, which would require the court to uphold Prop 8 unless the challengers prove that the measure is not even rationally related to any legitimate governmental purpose. The plaintiffs disagree, but argue that Prop 8 fails even that lowest level of judicial scrutiny. Thus, one of the key disputes in the case concerns the purpose or purposes behind Prop 8 and its exclusion of same-sex couples from civil marriage.

Mr. Olson contrasted the Prop 8 proponents’ argument that procreation is the central, defining focus of marriage with the views articulated in U.S. Supreme Court opinions about marriage, the plaintiff same-sex couples’ views, and the views expressed by their numerous expert witnesses – none of which describe marriage in such narrow terms.

Prop 8’s defenders followed the reasoning of some recent cases rejecting constitutional challenges to the exclusion of same-sex couples from civil marriage; those cases accepted the claim that because same-sex couples can’t accidentally procreate, that is a difference from different-sex couples that makes it rational for a state to allow the latter but not the former to marry.

Arguing on rebuttal, Olson focuses on the precise language of the ballot pamphlet to argue that procreation was not addressed, although the supposed inferiority (not “okay”-ness) of same-sex couples was.

Therèse Stewart, arguing for the City and County of San Francisco, which had intervened as a plaintiff to challenge Prop 8, addressed some of Judge Walker’s written questions (distributed the previous week) and argued that the evidence of economic harms to SF as a result of Prop 8’s discrimination helps underscore the irrationality of the measure. She noted that the Supreme Court had previously taken the toll of discriminatory laws into account in assessing their constitutional rationality. As a destination city for weddings and a city with a large gay and lesbian population, SF faces distinctive enduring harms from Prop 8, Stewart argued.

Judge Walker asked the attorney for the Alameda County Clerk Recorder how the exclusion of same-sex couples mandated by Prop 8, or the exclusion of different-sex couples under age 62 from domestic partnerships, was enforced. His questions perhaps alluded to the idea that enforcing this sex-based limitation would require determining people’s sex and possibly violating their privacy rights.

Charles Cooper arguing for those defending Prop 8 urged that “channeling” potentially procreative sex into the context of marriage was a rational basis for excluding same-sex couples; he faced considerable questioning from the judge, who seemed to express skepticism about the procreation argument. One point of skepticism was the lack of witnesses testifying to this view of marriage, a question on which Walker repeatedly pressed Mr. Cooper. Cooper’s response, as noted by Olson, was that he didn’t think evidence necessary, that most courts thought this, and that marriage had almost always up until the last 30 years and almost everywhere been limited to male-female couples.

Cooper tried to distinguish procreative defenses of laws against interracial marriage as reflections of incorrect, racist biological beliefs, whereas the mixed-sex requirement for marriage he suggested reflects the true biological fact that same-sex couples can’t accidentally procreate by themselves. The invisibility of bisexual persons in this trial meant that Cooper did not address the possibility that a woman married to a woman might accidentally become pregnant with someone else, a prospect that when applied to married different-sex couples he thought justified not excluding couples with one infertile spouse from marrying.

Cooper’s arguments almost all relied on mere “rational basis review” being the governing legal standard, and his answers to several of Judge Walker’s questions showed him contending that other forms of discrimination that are reviewed under stronger judicial tests (“intermediate” or “strict scrutiny”) do not offer a precedent for using heightened scrutiny here. This is where and why Cooper argues that sexual orientation should not be seen as “immutable” (although the Supreme Court has never held that immutable is enough for higher protection, nor has it held that immutability is required for such protection).

The level of judicial “scrutiny” also occasioned several exchanges between Mr. Cooper and Judge Walker about the political power or powerlessness of gay and lesbian people. Cooper then closed with the argument that we don’t know what might eventually happen to marriage if same-sex couples were allowed to marry, and that this lack of certainty should be enough to save Prop 8 from constitutional invalidation by courts.

Ted Olson argued in rebuttal that all of the witnesses the plaintiffs put on gave a very good idea indeed what would happen: nothing bad. And there was no evidence that including same-sex couples in marriage would not harm the institution and would help couples, children, and municipalities in California. At the end of it all, Olson argued, Prop 8 could not survive any level of constitutional scrutiny.

~David B. Cruz, J.D., University of Southern California, Gould School of Law

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