First off, our side has remarkably great counsel. Ted Olson was funny, intelligent, and relentlessly rational. While there were many laughs at the defense’s expense during their closing, the only joke Charles Cooper (defense) himself managed to get off was that he wished he had never said, “I don’t know.”
He was referencing a very early part of the trial:
The question is relevant to the assertion that Proposition 8 is constitutionally valid because it furthers the states goal of fostering “naturally procreative relationships,” Walker explained.
“What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?” Walker asked.
“My answer is, I don’t know. I don’t know,” Cooper answered. (MSNBC)
A whole lot of time in Cooper’s argument today was spent on trying—and failing—to justify the assertion that marriage is for childrearing. “The historical record leaves no doubt that the purpose of marriage is to channel procreative urges into stable relationships between the people whose sexual congress created the children that issued from it,” said Cooper. (Firedoglake’s great liveblog)
By the end of the back-and-forth between Walker and Cooper, it seemed that the defense’s main point was that marriage was to stop heterosexuals from running around hog-wild, making illegitimate children. Walker asked [not a direct quote], “But if that’s the case, why don’t marriage laws stop at parental rights, why all the other things they cover?”
Sitting there in the courtroom with my wife and our daughter, the point about preventing illegitimate children as the main purpose behind marriage was nothing short of infuriating. If so, do all the queer parents raising kids get to marry? What about my semi-“legitimate” child? Hazy abstractions dominated his replies about why opposite-sex partners who employ a sperm or egg donor, or who adopt in order to have kids, were different. “It’s not quite the same,” he said. OK, then why?
About gay and lesbian parents, he only said:
When couples cohabit, that in and of itself, weakens social norms. But to come back to your point — the state’s main concern in seeking to regulate marriage into stable and enduring marital unions, is to minimize irresponsible procreation. I don’t like that term, I hate to use it, I wish I could come up with a better term—procreation that leads to children being raised outside marriage. It is not a phenomenon that the state needs to be concerned about with same-sex couples. Same-sex couples can’t procreate by accident. (Firedoglake) [Emphasis mine]
But apparently it’s no biggie if WE raise children outside of marriage. When we’d rather not, even.
When Olson got up, he did so with the poise and confidence of a person who knows he is about to win. He made a snide comment about the right’s running commentary on “activist judges,” which got a huge laugh, primarily from Walker himself. I sense foreshadowing in that moment.
The other thing I learned, felt, heard, saw was who cares about this issue.
If there was any doubt whom this trial affects, you only need to have looked around the room. Absent, as far as I could tell, was even one straight couple fearing for their marriage. Olsen got a unanimous ovation at the end of his redirect (it was not contempt of court, we were in the 2nd overflow courtroom).
In the room—and outside holding signs, proffering pamphlets, and wearing stickers—were married and unmarried queers, Christians and those who would forever sever the church and state, lots of Americans and one or two undocumented-but-in-love hopefuls, parents and kids, people in jeans and suits, and a spectrum of ages and races.
Remember: the person shouting from behind the podium is not always the full picture, folks. A career devoted to only our highest principles is, for most, a luxury. A half-day off from work—or hell, unemployment—to run down to the courthouse is much more within reach.
I wish you had been there with us.
One day our grandkids, legitimate and not, will roll their eyes about a time when the law was that backward, not to mention anyone old enough to remember and uncool enough still want to talk about it.