One of the most remarked-upon aspects of the first round of Prop 8 litigation, that concluded this week with a 2-1 defeat for the initiative at the 9th Circuit Court of Appeals, was the weakness of the case against gay marriage. As Andrew Cohen explained at the time, at every turn Judge Vaughn Walker, who presided over the trial, expressed frustration at the fact that the opponents of gay marriage either had no case or couldn’t be bothered to make one. Arguing for the gay marriage ban, seasoned attorney Charles Cooper called only two witnesses (the plaintiffs called 17), one of whom was not deemed qualified to testify as an expert. As Cooper finally explained in his closing argument, "Your honor, you don't have to have evidence for this. … You only need to go back to your chambers and pull down any dictionary or book that defines marriage," Cooper told the judge. "You won't find it had anything to do with homosexuality."
This defense satisfied almost no one. Ted Olson, the plaintiff’s attorney, was absolutely flummoxed by Cooper’s claim that he had no burden to do anything beside assert the immutability of traditional marriage. In his closing argument, a perplexed Olson replied, “You can't take away the rights of tens of thousands of persons and come in here and say 'I don't know' and 'I don't have to prove anything.' ” An equally maddened Judge Walker agreed, railing in his opinion about how the Prop 8 proponents had failed to produce promised evidence and testimony. Even conservative groups wrung their hands, questioning whether Prop 8 had been “adequately defended” at the hearing. Then again, perhaps punting on Prop 8 was a strategic decision. Doing so allowed the supporters of Prop 8 to argue that the fix was in. Judge Walker, who is gay, and the Hollywood appeals court would never have given them a fair shake in the first place.
Or, perhaps, there was another explanation. Perhaps, as many speculated at the time, it reflected the deeper reality that there was no factual or empirical case to be made: The evidence, the data, and the experts overwhelming agree that gay marriage does not harm children. And that leaves opponents of gay marriage to argue a tautology: Gay marriage is wrong because it’s wrong.
One thing is certain: The problem for proponents of Prop 8 wasn’t that they hadn’t had enough time to hone their argument. Four months later, during the argument at the appeals court, Charles Cooper again found himself unable to articulate a single plausible reason for why the ban existed in California. A far more empathetic judge in Randy Smith tried to coax one from Cooper: “But what is the rational basis for [the] initiative when California law says homosexual couples have all the rights of marriage, all the rights of child rearing, all the rights that others have?” asked Smith. “What is the rational basis then [for Proposition 8] if in fact the homosexual couples have all the rights that heterosexual couples have? We’re left with a word: marriage. What is the rational basis for that?”
At the podium, Cooper’s answer was more or less a Zen koan: “Your honor, you’re left with a word, but a word that essentially is the institution,” said Cooper. “If you redefine the word, you change the institution. You cannot separate the two.” It was either the sound of one hand clapping or the perfect response to a question that appears to have no good answer.
It was, in any event, enough for Judge Smith. Unable to get a satisfactory answer from Cooper, Smith tried valiantly to muster one for himself in a lengthy dissenting opinion. What he produced was slightly less oddly metaphysical than Cooper’s statements at trial, but not much more filling. (Lest you think this is a partisan charge, here’s Maggie Gallagher making the same observation at the National Review Online about a timid dissent that amounts to nothing more than “don’t go after me!”)
Judge Smith’s argument begins with a lengthy discussion of a 1971 case denying a marriage license to a gay couple from the Minnesota Supreme Court called Baker v. Nelson, which the U.S. Supreme Court summarily dismissed in 1972 "for want of a substantial federal question.” Because it came up to the high court through mandatory appellate review, it stands as a precedent for what Judge Smith describes as a preference that courts exercise “restraint” when it comes to addressing due process and equal protection challenges against laws prohibiting same-sex marriage. Judge Smith is angry that the majority blew off Baker in a footnote. (In that footnote, the majority suggests that Baker raises different questions and is less relevant than subsequent cases, including Romer v Evans.) As Western State University College of Law professor David Groshoff argues, “Baker's relevance in this debate more or less disappeared in Minnesota in 2001, and several years later nationwide, when sodomy laws no longer applied to consenting adults.” In other words, Judge Smith is grasping.