Prop 8 Lawyers Have No Idea How Same-Sex Marriage Could Harm Anything
A while ago ianvass told me that he'd explain why California Prop 8 was a good idea, not religiously, but from a secular standpoint. How Prop 8 would mitigate a public health or safety issue. I'm still waiting, with occlupanid's wager of a tiny amount of foreign currency still unpaid.
He might be snoozing, but on November 23 the finest legal minds in our country argued Perry v. Schwarzenegger to answer the question I posed to ianvass. Starting at the bottom of Page 20 of this transcript, defending attorney Charles Cooper attempts to answer the question I asked:
MR. COOPER: It's the state's purpose that's important here. And if the state has any conceivable rational purpose, I have to win. Proposition 8 has to be upheld, we believe, under the authorities that control this issue. And so the focus has to be on: what is the state's purpose?
THE COURT: Well --
MR. COOPER: -- restricting marriage to opposite-sex couples. Yeah.
THE COURT: All right. Let me throw in a question here. Assume I agree with you that the state's interest in marriage is essentially procreative, as you've put it.
MR. COOPER: Yes, your Honor.
THE COURT: Assume that I agree with that. How does permitting same-sex marriages impair or adversely affect that interest?
...
MR. COOPER: Obviously, my submission here to you is rational-basis standard applies. And so, yes, my here are premised upon --
THE COURT: I've given you one assumption. Give me one, for purposes of argument. And that is that this is not rational basis review; this is intermediate scrutiny.
MR. COOPER: Well, then, your Honor, I'm going to be coming back to you with arguments.
THE COURT: Now we're having a dialogue here. Now assume that you have to have established that this is the minimally effective means of imposing this discrimination between same-sex marriages and opposite-sex marriages. So what is the harm to the procreative purpose or function of marriage that you outline of permitting same-sex marriages?
MR. COOPER: Your Honor, even under a compelling-state-interest standard, I would submit to the Court that the state's interests in channeling procreative activity into enduring relationships would be vital, and would satisfy a compelling-interest standard. And I would also submit to the Court that there would be no reasonable available way for -- for that purpose to be fulfilled and advanced, other than the way the state has chosen -- every state has chosen, with five exceptions, and California has chosen through Proposition 8. And, your Honor, that gets to the -- to the fundamental, I think, theoretical disagreement that I mentioned earlier between the Plaintiffs and the Defendant-Intervenors here. They say that it's not enough, as you were suggesting here, for opposite-sex unions to further and advance these vital state interests; that we have to prove, in addition to that, that including same-sex unions into the definition of marriage would actually harm those purposes and interests. That is not the Equal Protection construct, your Honor.
THE COURT: I'm asking you to tell me how it would harm opposite-sex marriages.
MR COOPER: All right.
COURT: All right. Let's play on the same playing field for once. Okay.
MR COOPER: Your Honor, my answer is: I don't know.
THE COURT: Does that mean -- does that mean if this is not determined to be subject to rational basis review, you lose?
MR. COOPER: No, your Honor.
THE COURT: Okay.
MR. COOPER: I don't believe it -- it does.
THE COURT: Just haven't figured out how you're going to win on that basis yet?
MR. COOPER: Well, your Honor, by -- by saying that the state and its electorate are entitled, when dealing with radical proposals for change, to a bedrock institution such as this to move with incrementally, to move with caution, and to adopt a wait-and-see attitude.
Keep in mind, your Honor, this same-sex marriage is a very recent innovation. Its implications of a social and cultural nature, not to mention its impact on marriage over time, can't possibly be known now.
THE COURT: So this is a political question, and the Court should abstain? Is that it?
MR. COOPER: Well, your Honor, certainly at the root of all our arguments here are that this is a question of social/cultural dimension that the people themselves in this state -- and every other -- have the authority to answer. So, yes, the Court -- the Court should do as the Supreme Court did in the assisted-suicide case, and say that this issue is being debated throughout the land on -- in terms of its legality, its morality -- its morality, and its practicality in the democratic process. And that's where it should be, and that's where it should remain.
...
MR. COOPER: your Honor, I guess it's important now to come back to this -- to this point about why it's not necessary for me to prove including same-sex unions in the traditional definition of marriage would actually harm that institution, or harm the vital purposes that that institution --
THE COURT: Well, I understand your answer to that question is you don't know. You don't know.
MR. COOPER: No. Well, your Honor, that's --
THE COURT: It's a fair answer. If you don't know, you don't know; or if you can't -- you can't say, or it depends on the development of a factual records, well, but -- MR. COOPER: Well, your Honor, it depends on things we can't know. This is a -- this is a -- that's my point.
Mr. Cooper is stumped. He has no idea what the adverse effects would be. He's come to argue a landmark case without any reason that he can articulate how same sex marriage would harm society.
The judge brings up the point a little later...
THE COURT: What are those potential adverse consequences?
MR. COOPER: Well, your Honor --
THE COURT: Has anybody identified them?
MR. COOPER: There have been some, yes, your Honor. For example, there seems to us to be little doubt that if the plaintiffs prevail here, and the definition of marriage is to be expanded to include same-sex couples, then the existing parallel institution of domestic partnership will also have to be expanded to include opposite-sex couples. And that parallel institution, with all the same benefits, will be available to opposite-sex couples. That's exactly how things are proceeding in The Netherlands. And in The Netherlands --
THE COURT: What's the effect of that? Is that harmful?
MR. COOPER: Well, your Honor, there do appear to be a number of adverse social consequences in The Netherlands from this. Domestic partnership is now used, apparently, more by heterosexual couples -- opposite-sex couples -- than is marriage. So marriage -- the effort to channel procreative activity into that institution has abated quite a bit. There's -- there are -- there are other socially unfortunate --
THE COURT: But --
MR. COOPER: Whether there's a causal relationship, your Honor --
THE COURT: Has that been harmful to the society in The Netherlands? Has it been harmful to children? What's the adverse effect?
MR. COOPER: Well, your Honor, again, I don't -- I don't have a presentation for you on that; but I do, your Honor, submit that it is not self-evident that there is no chance of any harm. And unless it is, the people of California are entitled not to run the risk. And unless he can prove -- Mr. Olson and his colleagues can prove that there is no harm that can possibly come from this, then the people of California are entitled to make the decision that they did.
THE COURT: When do constitutional rights depend upon proof of no harm? Freedom of speech? Freedom of press? Lots of harm flows from those fundamental and basic freedoms of ours -- misinformation, incitement to passion, and so forth -- but we tolerate those risks in a free society. So when does the application of a constitutional principle require proof that its application will not impose any risk?
Mr. Cooper starts to make a point - that allowing same sex couples marriage equality would also entitle opposite sex couples to domestic partnership equality - but he can't actually say what would be wrong with this, just that nobody can prove that it *wouldn't* be harmful so maybe it would. The judge doesn't buy it. You don't have to prove that same sex marriage is harmless any more than you have to prove that freedom of speech or the press is harmless, which it sometimes isn't.
(Aside: I didn't realize that the Prop 8 people want to discriminate against gays *and* straights. It's not just important that gays can't have marriage; straights also shouldn't have civil unions.)
The prosecuting attorney sums up the problem very well:
(p55) MR. OLSON: ...the reason why they keep coming back to procreation and the raising of children is that that might be a rational basis, but it doesn't work in terms of excluding individuals who wish to marry someone of the same sex, because procreation doesn't require marriage, as your question pointed out. Marriage doesn't yield procreation. Same-sex marriage does not dilute, diminish, inhibit, or deter opposite-sex persons from getting marriage. And the prohibition of same-sex marriage doesn't mean that individuals who would prefer to be married to someone of the same sex is going to go out and marry someone of the opposite sex, produce children, and raise them in a happy relationship. That blinks reality. All of those arguments that are made about -- you asked the point: if you had to prove that there was a harm by allowing same-sex marriages to exist alongside heterosexual marriages, what would that harm be? And I think I heard Mr. Cooper say he didn't know. Now, he's spent a lot of time on this case. And I don't know, either, what the harm could be to heterosexual marriages by allowing same-sex marriage.
When a layperson flounders while trying to make their case they'll often say "I don't know, I'm not an expert, but I'm sure the experts know some very good reasons." In this case no, they don't. The one thing that the judge, prosecution, and defense can all agree on is that nobody has any idea why allowing same-sex marriage would be harmful to anyone.
Caveat: This was just the hearing for summary judgment; I haven't read many of the transcripts from the trial, which has been going for some time. If anyone's aware of any answer to the judge's question offered during the trial itself please let me know in the comments.
Plea: The American Foundation For Equal Rights is a nonprofit organization created to support the plaintiffs in Perry v. Schwarzenegger. Please consider donating.
He might be snoozing, but on November 23 the finest legal minds in our country argued Perry v. Schwarzenegger to answer the question I posed to ianvass. Starting at the bottom of Page 20 of this transcript, defending attorney Charles Cooper attempts to answer the question I asked:
MR. COOPER: It's the state's purpose that's important here. And if the state has any conceivable rational purpose, I have to win. Proposition 8 has to be upheld, we believe, under the authorities that control this issue. And so the focus has to be on: what is the state's purpose?
THE COURT: Well --
MR. COOPER: -- restricting marriage to opposite-sex couples. Yeah.
THE COURT: All right. Let me throw in a question here. Assume I agree with you that the state's interest in marriage is essentially procreative, as you've put it.
MR. COOPER: Yes, your Honor.
THE COURT: Assume that I agree with that. How does permitting same-sex marriages impair or adversely affect that interest?
...
MR. COOPER: Obviously, my submission here to you is rational-basis standard applies. And so, yes, my here are premised upon --
THE COURT: I've given you one assumption. Give me one, for purposes of argument. And that is that this is not rational basis review; this is intermediate scrutiny.
MR. COOPER: Well, then, your Honor, I'm going to be coming back to you with arguments.
THE COURT: Now we're having a dialogue here. Now assume that you have to have established that this is the minimally effective means of imposing this discrimination between same-sex marriages and opposite-sex marriages. So what is the harm to the procreative purpose or function of marriage that you outline of permitting same-sex marriages?
MR. COOPER: Your Honor, even under a compelling-state-interest standard, I would submit to the Court that the state's interests in channeling procreative activity into enduring relationships would be vital, and would satisfy a compelling-interest standard. And I would also submit to the Court that there would be no reasonable available way for -- for that purpose to be fulfilled and advanced, other than the way the state has chosen -- every state has chosen, with five exceptions, and California has chosen through Proposition 8. And, your Honor, that gets to the -- to the fundamental, I think, theoretical disagreement that I mentioned earlier between the Plaintiffs and the Defendant-Intervenors here. They say that it's not enough, as you were suggesting here, for opposite-sex unions to further and advance these vital state interests; that we have to prove, in addition to that, that including same-sex unions into the definition of marriage would actually harm those purposes and interests. That is not the Equal Protection construct, your Honor.
THE COURT: I'm asking you to tell me how it would harm opposite-sex marriages.
MR COOPER: All right.
COURT: All right. Let's play on the same playing field for once. Okay.
MR COOPER: Your Honor, my answer is: I don't know.
THE COURT: Does that mean -- does that mean if this is not determined to be subject to rational basis review, you lose?
MR. COOPER: No, your Honor.
THE COURT: Okay.
MR. COOPER: I don't believe it -- it does.
THE COURT: Just haven't figured out how you're going to win on that basis yet?
MR. COOPER: Well, your Honor, by -- by saying that the state and its electorate are entitled, when dealing with radical proposals for change, to a bedrock institution such as this to move with incrementally, to move with caution, and to adopt a wait-and-see attitude.
Keep in mind, your Honor, this same-sex marriage is a very recent innovation. Its implications of a social and cultural nature, not to mention its impact on marriage over time, can't possibly be known now.
THE COURT: So this is a political question, and the Court should abstain? Is that it?
MR. COOPER: Well, your Honor, certainly at the root of all our arguments here are that this is a question of social/cultural dimension that the people themselves in this state -- and every other -- have the authority to answer. So, yes, the Court -- the Court should do as the Supreme Court did in the assisted-suicide case, and say that this issue is being debated throughout the land on -- in terms of its legality, its morality -- its morality, and its practicality in the democratic process. And that's where it should be, and that's where it should remain.
...
MR. COOPER: your Honor, I guess it's important now to come back to this -- to this point about why it's not necessary for me to prove including same-sex unions in the traditional definition of marriage would actually harm that institution, or harm the vital purposes that that institution --
THE COURT: Well, I understand your answer to that question is you don't know. You don't know.
MR. COOPER: No. Well, your Honor, that's --
THE COURT: It's a fair answer. If you don't know, you don't know; or if you can't -- you can't say, or it depends on the development of a factual records, well, but -- MR. COOPER: Well, your Honor, it depends on things we can't know. This is a -- this is a -- that's my point.
Mr. Cooper is stumped. He has no idea what the adverse effects would be. He's come to argue a landmark case without any reason that he can articulate how same sex marriage would harm society.
The judge brings up the point a little later...
THE COURT: What are those potential adverse consequences?
MR. COOPER: Well, your Honor --
THE COURT: Has anybody identified them?
MR. COOPER: There have been some, yes, your Honor. For example, there seems to us to be little doubt that if the plaintiffs prevail here, and the definition of marriage is to be expanded to include same-sex couples, then the existing parallel institution of domestic partnership will also have to be expanded to include opposite-sex couples. And that parallel institution, with all the same benefits, will be available to opposite-sex couples. That's exactly how things are proceeding in The Netherlands. And in The Netherlands --
THE COURT: What's the effect of that? Is that harmful?
MR. COOPER: Well, your Honor, there do appear to be a number of adverse social consequences in The Netherlands from this. Domestic partnership is now used, apparently, more by heterosexual couples -- opposite-sex couples -- than is marriage. So marriage -- the effort to channel procreative activity into that institution has abated quite a bit. There's -- there are -- there are other socially unfortunate --
THE COURT: But --
MR. COOPER: Whether there's a causal relationship, your Honor --
THE COURT: Has that been harmful to the society in The Netherlands? Has it been harmful to children? What's the adverse effect?
MR. COOPER: Well, your Honor, again, I don't -- I don't have a presentation for you on that; but I do, your Honor, submit that it is not self-evident that there is no chance of any harm. And unless it is, the people of California are entitled not to run the risk. And unless he can prove -- Mr. Olson and his colleagues can prove that there is no harm that can possibly come from this, then the people of California are entitled to make the decision that they did.
THE COURT: When do constitutional rights depend upon proof of no harm? Freedom of speech? Freedom of press? Lots of harm flows from those fundamental and basic freedoms of ours -- misinformation, incitement to passion, and so forth -- but we tolerate those risks in a free society. So when does the application of a constitutional principle require proof that its application will not impose any risk?
Mr. Cooper starts to make a point - that allowing same sex couples marriage equality would also entitle opposite sex couples to domestic partnership equality - but he can't actually say what would be wrong with this, just that nobody can prove that it *wouldn't* be harmful so maybe it would. The judge doesn't buy it. You don't have to prove that same sex marriage is harmless any more than you have to prove that freedom of speech or the press is harmless, which it sometimes isn't.
(Aside: I didn't realize that the Prop 8 people want to discriminate against gays *and* straights. It's not just important that gays can't have marriage; straights also shouldn't have civil unions.)
The prosecuting attorney sums up the problem very well:
(p55) MR. OLSON: ...the reason why they keep coming back to procreation and the raising of children is that that might be a rational basis, but it doesn't work in terms of excluding individuals who wish to marry someone of the same sex, because procreation doesn't require marriage, as your question pointed out. Marriage doesn't yield procreation. Same-sex marriage does not dilute, diminish, inhibit, or deter opposite-sex persons from getting marriage. And the prohibition of same-sex marriage doesn't mean that individuals who would prefer to be married to someone of the same sex is going to go out and marry someone of the opposite sex, produce children, and raise them in a happy relationship. That blinks reality. All of those arguments that are made about -- you asked the point: if you had to prove that there was a harm by allowing same-sex marriages to exist alongside heterosexual marriages, what would that harm be? And I think I heard Mr. Cooper say he didn't know. Now, he's spent a lot of time on this case. And I don't know, either, what the harm could be to heterosexual marriages by allowing same-sex marriage.
When a layperson flounders while trying to make their case they'll often say "I don't know, I'm not an expert, but I'm sure the experts know some very good reasons." In this case no, they don't. The one thing that the judge, prosecution, and defense can all agree on is that nobody has any idea why allowing same-sex marriage would be harmful to anyone.
Caveat: This was just the hearing for summary judgment; I haven't read many of the transcripts from the trial, which has been going for some time. If anyone's aware of any answer to the judge's question offered during the trial itself please let me know in the comments.
Plea: The American Foundation For Equal Rights is a nonprofit organization created to support the plaintiffs in Perry v. Schwarzenegger. Please consider donating.