Should you wish to read the entire thing, it is available here.
From what I can tell, there’s only one argument that Prop 8 Proponents have, which is that only heterosexuals can get accidentally pregnant, so marriage is necessary only for them. It’s a strange argument, no doubt, but it is essentially the only quantitative difference between gays and some heterosexuals. I say some because, of course, people who are infertile, past menopause, or who have no intention of reproducing are allowed to get married, so long as their genitals look one way or another. To say that marriage is only about protecting children from being accidentally created is… well… changing the definition of marriage, which is supposedly something these guys are against. Judge Walker said it nicely.
And [marriage], as Mr. Olson described this morning, is a right which extends essentially to all persons, whether they are capable of producing children, whether they are incarcerated, whether they are behind in their child support payments. There really is no limitation except, as Mr. Olson pointed out, a gender limitation.
Judge Walker asked a series of penetrating questions, I was quite impressed. They were the questions I would have asked, but much less snarky. He asked why the chief witness for the Prop 8 side had said we’d be more American the day we allowed same-sex marriage, he asked why it’s OK to take away the rights of a minority when nothing good comes of doing so, he wanted to know why it wasn’t gender discrimination if not homosexual discrimination, and he wanted to know if it was appropriate for the court to make a decision still being fought over politically. And of course Mr. Olson was eloquent as always.
What we’re talking about here is allowing individuals who have the same impulses, the same drives, the same desires as all of the rest of us, to have a relationship in harmony, stability, and to form a family and a neighborhood, all of those things that the Supreme Court talked about. And, now, tell me how it helps the rest of the citizens of California to keep them out of the club. It doesn’t.
These are, undoubtedly, very pretty words. But I actually think the entire decision is going to come down to one exchange between Walker and Olson, and it’s not necessarily a terribly pretty one, but it is, I think, the most important. And that is, is it politically viable to send this to the Supreme Court now? It’s an important question, and one that a lot of people who support gay marriage disagree on. There was a lot of hostility and distrust from the gay community at the beginning of this trial because they were afraid it was doomed from the start and would sink the chances of gay marriage getting passed because the Supreme Court is so conservative (little c).
This is a long excerpt, but as I think everything depends on it, I’ll leave it long.
THE COURT: I fully understand. But there was already a tide running, a political tide running with respect to interracial marriage. And, as Mr. Cooper duly commented about the Supreme Court, the Supreme Court took note of that. Now, do we have a political tide here that’s going to carry the Supreme Court?
MR. OLSON: I believe, Your Honor, that there is a political tide running. I think that people’s eyes are being opened. People are becoming more understanding and tolerant. The polls tell us that. That isn’t any secret.
But that does not justify a judge in a court to say, ”I really need the polls to be just a few points higher. I need someone to go out and take the temperature of the American public before I can break this barrier and break down this discrimination.”
Because if they change it here in the next election in California, we still have Utah. We still have Missouri. We still have Montana. This case is going to be in a court. Some judge is going to have to decide what we’ve asked you to decide.
And there will never be a case with a more thorough presentation of the evidence. There will never be a case with such a wildly crazy system that California has. There will never be a case more like Romer, where the right existed and hen it was taken away. There will never be a case against the background.
The Supreme Court really made that step that you are talking about, in Lawrence vs. Texas. And that overruled Bowers vs. Hardwick, which was only 20 years earlier. But that broke the barrier by saying that the behavior, the conduct between the individuals is a right of privacy, and it’s protected by the Constitution.
And the right of privacy is the same right that we’re talking about in the context of marriage. And I don’t think that is justification for waiting any longer.
And, as I said, the most compelling thing that I have read on that subject was the arguments that were being made to Martin Luther King saying, you know, “You ought to ease up. The people aren’t ready for these kind of changes. There’s going to be a backlash.”
And his letter from a Birmingham jail explaining why he could not wait to press the civil rights of his fellow citizens is as compelling a statement on that subject that’s ever been written.
And that’s the argument. Everything else is proven, Prop 8 is unconstitutional, it’s wrong, there’s nothing that the Proponents have said that holds any water. The only argument holding any water is the one Judge Walker is acknowledging, which is that maybe America isn’t ready to be the place it promises to be. And there are many pragmatists, old and young, gay and straight who will agree with that, and there are many idealists who are crying and screaming and gnashing their teeth at the thought that politics is ever more important than human decency.
I think Judge Walker is ultimately a pragmatist, but he’s got a long view of things, and I think he’ll want to be on the right side of history. So, my bet is that he’ll rule in against the constitutionality of Prop 8 and do so very conservatively and thoroughly, the real question is whether he’ll immediately reinstate gay marriages or not, and I tend to think he won’t. But maybe.