Thursday, June 17, 2010

Judge Tries to Help Prop 8 Plaintiffs

If this doesn't qualify as judicial misconduct during a trial, I'm not sure what does.

Charles Cooper, the attorney defending a federal challenge to Proposition 8, came to San Francisco to deliver his closing argument on same-sex marriage Wednesday. But Chief Judge Vaughn Walker made it feel much more like a cross-examination.

Walker closely questioned Cooper about his trial presentation, including why his side called only one witness to testify about the institution of marriage. Where Cooper's counterpart, Theodore Olson of Gibson Dunn & Crutcher, was able to deploy lofty rhetoric with less interruption, Cooper was stuck parrying Walker for about two hours.

At one point, Walker asked Cooper to recount the trial evidence showing that marriage is designed to encourage procreation. That's the central reason Prop 8 supporters cite as why voters have a rational basis to ban gay marriage. But as Cooper named different expert authorities, Walker interrupted.

"I don't mean to be flip," Walker said, but the people Cooper named didn't actually come to testify.

"Your honor, you don't have to have evidence of this from the authorities," Cooper said, adding that case law is enough.

"You don't have to have evidence?" Walker asked quietly.

The exchange pointed up a key fault line running through the case, in which four gay plaintiffs are seeking to have California's Prop 8 invalidated. From the beginning, Cooper and other conservative legal thinkers argued against the need for a trial, saying case law alone dooms the complaint to fail. Even Olson was skeptical of Walker's plan at first.

Case law--and the voters--support traditional marriage. Gay marriage supporters have emotion but not facts on their side, which is why they continue to argue that gay marriage is like interracial marriage. The truth is that interracial marriage discriminated against race which is strictly barred by the 14th Amendment. There's no such prescription against homosexuals, who have the same marriage rights regardless of color. The fact that they dislike the choices doesn't make it discrimination.

Have your relationship if you want it but don't force me to call it marriage. If you want people to call it marriage, then convince them of it at the ballot box, a task you haven't been able to do yet.