Both plaintiff and defense attorneys delivered closing arguments June 16 before Judge Vaughn Walker, who is openly gay. Walker is expected to hand down his decision within a month.
In their final statements, which lasted about five hours, the lawyers for both sides rehashed the arguments and witness testimony they presented in the two-week trial in January.
The suit was filed in May 2009 by two gay couples, Kristin Perry and Sandy Stier and Paul Katami and Jeff Zarrillo, who were denied marriage licenses. Same-sex marriage was legal in California between May 2008 — when the state legislature overturned the state’s marriage-equality ban — and November of that year, when voters approved Proposition 8, reinstating the ban.
Theodore Olson, a conservative who argued for the plaintiffs alongside David Boies, his opponent in the 2000 Bush v. Gore case, delivered the closing arguments, during which he replayed video tape of some of the plaintiffs testifying about how the marriage ban has impacted them.
“The fundamental constitutional right to marry has been taken away from the plaintiffs and tens of thousands of similarly situated Californians,” Olson said, who argued the marriage ban violates gay and lesbian individuals’ constitutional rights to equal protection and due process. “Their state has rewritten its constitution in order to place them in a special disfavored category where their most intimate personal relationships are not valid, not recognized and second-rate. The state has stigmatized them as unworthy of marriage, different and less respected.”
Olson also revisited the testimony of several expert witnesses, including psychologists and historians, before turning the floor over to Charles Cooper, the defense attorney whose closing arguments centered on the notion that marriage has traditionally been reserved for procreation.
“You need only to go back to your chambers, your honor,” Cooper said, “and pull down any dictionary, pull down anY book that discusses marriage, and you will find this procreative purpose at its heart wherever you go.”
Walker questioned Cooper about whether he thought infertile heterosexual couples should be excluded from marriage, but the attorney replied that such couples still “further the traditions of marriage.” The judge also asked Cooper what testimony in the trial supports the notion that marriage is solely for procreation, to which the attorney replied, “You don’t have to have evidence of this.”
During his rebuttal, Olson attacked Cooper’s sentiments.
“You are discriminating against a group of people,” Olson said in his rebuttal. “You are causing them harm. You are excluding them from an important part of life. At the end of the day, ‘I don’t know’ and ‘I don’t have to put any evidence,’ with respect to Mr. Cooper, does not cut it. It does not cut it when you are taking away the constitutional rights, basic human rights and human decency from a large group of individuals, and you don’t know why they are a threat to your definition of a particular institution.”
During the trial, the defense called just two witnesses, only one of whom, David Blankenhorn, testified about the role of procreation in marriage. Blankenhorn was later hailed as having aided the plaintiffs for remarking that “we would be more American” if marriage equality was legalized.
No matter which side Walker rules with, the case is expected to be appealed, possibly to the U.S. Supreme Court.
Jen Colletta can be reached at firstname.lastname@example.org.