The definition of marriage was central to closing arguments in the Perry case Wednesday. The Supreme Court has repeatedly held that marriage is a fundamental right under the Due Process Clause. If heterosexual procreation is implicit in that fundamental right, Prop 8 likely survives the plaintiffs’ Due Process argument. But if marriage is two people’s mutual commitment to enter a legally sanctioned social unit, and if it involves individual freedom and autonomy in choosing a life partner without regard to gender, then the state and voters need a very good reason to deny marriage to gays and lesbians. Given that Prop 8’s proponents submitted minimal expert testimony, they will likely lose if the court finds that the fundamental right of marriage extends to gays and lesbians.
To the defenders of Prop 8, sexuality and “responsible procreation” are central to marriage. Marriage is a means of channeling straight peoples’ sex lives into a relationship that increases the likelihood that their children will be raised by biological parents. That is why it is constitutionally permissible to exclude gays and lesbians from marriage, said Charles Cooper, lead attorney for the proponents of Prop 8. Unlike straight couples, who can have children by accident, gay couples must affirmatively choose to have children. Because the children of gay parents are necessarily desired, Cooper said, they are not as likely as children of straight couples to become a drain on state resources. Thus it is entirely reasonable for the state to extend marriage only to straight couples, Cooper said.
Cooper and his legal team offered no evidence that excluding gays and lesbians from marriage advances responsible procreation. No evidence is necessary, Cooper said, because no one knows the impact gay marriage would have on heterosexual marriage. It’s enough that there’s a risk, and “it couldn’t be more rational for the people of California to say, we aren’t going to run that risk,” Cooper said.
Cooper focused on the nature of marriage historically and the way it has been defined by judges and political leaders. Some seventy judges have emphasized procreation in describing marriage, Cooper said, as did Congress in enacting the Defense of Marriage Act. Marriage has been a constant, unchanging institution for much of human history, Cooper said, suggesting that plaintiffs’ evidence about the personal, economic, social, and psychological significance of marriage is irrelevant.
Ted Olson, arguing for the plaintiffs, met Cooper’s case law with citations of his own, referring to fourteen Supreme Court cases that regard marriage as the foundation of society, arising from the most important choice a person makes in his or her lifetime. The Supreme Court has referred to the right to marry in upholding the right to seek divorce, use contraceptives, and avoid criminal penalty for homosexual sex—unlikely results if the purpose of marriage is procreation, Olson said.
Olson also quoted trial testimony in support of the idea that marriage is about personal freedom, privacy, autonomy, dignity, security, and societal acceptance. He played video of the plaintiffs’ testimony in which they described their feelings for their partner and why they want to get married. “There is something so humiliating about everyone knowing you want to make this decision and not being able to,” said Kristin Perry, the lead plaintiff. She also spoke about feeling stigmatized. “If Prop 8 were undone and kids like me growing up … could never know what this felt like, then I assume that their entire lives would be on a higher arc,” Perry said.
Olson also reviewed the testimony from experts. Historian Nancy Cott, a witness for the plaintiffs, testified that marriage is an act of freedom—former slaves “flocked to marriage” once they could legally bind themselves to another person. Others, including Psychologists Letitia Peplau and Ilan Meyer, testified that married people live longer, and that being excluded from marriage perpetuates a stigma against gay people and their families.
The defenders of Prop 8 produced little evidence at trial, the result of a litigation strategy that seems aimed at winning legal arguments that foreclose factual questions. This strategy depends upon Chief Judge Vaughn Walker applying a certain level of review to Prop 8, meaning that if Judge Walker accepts that gay people have a fundamental right to marry or that they are a protected class like women and racial minorities, he will look into the facts. If he does that, Prop 8 proponents will have had to show that protecting children and procreation was the actual motivation for passing Prop 8, and that that motivation is sufficiently important and related to the means of denying marriage to gays and lesbians. Yet, at trial, the proponents called few experts. Those who did testify did not contradict plaintiffs’ expert testimony that the exclusion of gays and lesbians from marriage harms them, their children, and society as a whole.
Olson argued that even under the legal standard most favorable to upholding Prop 8, the proponents needed to show that the reasons for excluding gays and lesbians from marriage are legitimate. Moral disapproval and historical practice are not legitimate reasons, Olson said, and the harm done by excluding gays and lesbians from marriage delegitimizes any other possible reason.
Cooper’s closing argument did reference testimony from David Blankenhorn, a witness for the proponents of Prop 8 and the author of two books on marriage. Blankenhorn believes that while marriage would be beneficial to gays and lesbians and their children, as well as to American society, limiting it to straight couples is better for the institution of marriage. Judge Walker’s questions implied that he has not yet decided whether to admit Blankenhorn as an expert—he is not an academic and none of his writings on marriage have been peer reviewed.