Lawyers from both sides gave their closing arguments on Wednesday in the lawsuit by two same-sex couples over California’s Proposition 8, which overturned the same sex marriage law in the state of California.
Supporters of the Proposition 8 focused on arguing that the institution of marriage is about procreation, and that it is “common sense” that children “do best when they are raised by their own mother and father.” They failed during the trial to present any peer-reviewed scientific research proving either point.
The lawyers also argued whether or not the court should revoke the marriages of those same sex couples that wed before the measure passed the ballot in November, 2008. Prior to the vote in 2008, supporters claimed they had no intention of nullifying the marriages performed before Election Day; however, they later tried and failed to annul the 18,000 marriages performed in California before Proposition 8 went into effect.
According to the San Francisco Chronicle, Andrew Pugno, attorney for Proposition 8’s backers, said that supporters don’t want the licenses revoked outright, but want the court to “rule that government agencies, courts and businesses no longer have to recognize the couples as married.”
Charles Cooper, who also represents Prop 8 supporters, then argued in court that marriage is fundamentally about procreation, and that the “common sense belief that children do best when they are raised by their own mother and father” means same sex marriages should not be legal.
The AP reports that, when Judge Vaughn Walker asked him whether the logical conclusion of this argument would be to not recognize marriages by childless or infertile couples, Cooper responded that doing that would be impractical, presumably unlike allowing individual institutions and people to decide which marriages they would recognize on an ad hoc basis.
Cooper continued:
The plaintiffs say there is no way to understand why anyone would support Proposition 8, would support the traditional definition of marriage, except through some irrational or dark motivation. That is not just a slur on the 7 million Californians who supported Proposition 8. It’s a slur on 70 of 108 judges who have upheld as rational the decision of voters and legislatures to preserve the traditional definition of marriage.
Theodore Olsen, who represented the plaintiffs, countered Cooper: “It is the right of individuals, not an indulgence to be dispensed by the state. The right to marry, to choose to marry, has never been tied to procreation.”
