Charles Cooper, meet Alvin Greene.
Most politically active lesbians and gay men know Charles Cooper is one of the chief lawyers representing the folks defending Proposition 8 in the Perry v. Schwarzenegger trial. Cooper delivered his side's final arguments this week. He strenuously overargued the case, saying marriage is "fundamental to the survival of the human race. Without the marital relationship, society would come to an end."
The pretty unflappable Judge Vaughan Walker couldn't but observe - perfectly accurately -- that Cooper hadn't presented any evidence for that proposition, and Cooper responded, "You don't have to have evidence of this."
Those eight words contain the essence of how courts differ from the everyday politics we are far more accustomed to. Cooper was speaking as if he were running Alvin Greene's campaign.
Greene, this week, definitively won the South Carolina Democratic primary to face Jim DeMint for DeMint's seat in the U.S. Senate. The thing is, no one really knows who Greene is, or what he might stand for, if anything. He's a 32-year old, unemployed Army veteran who paid the South Carolina filing fee, got his name on the ballot, and without any campaign whatsoever, defeated someone who actually ran for the seat, securing 59% of the democratic party vote.
Theories and speculation abound, but the bottom line is this: It appears South Carolina's voters just picked him at random; his name came first on this part of the ballot.
And here's the point: In an election, voters can cast their ballot for good reasons or bad reasons or no reasons at all, and their vote counts just as much. The state democratic party searched hard for some reason to disqualify Greene, but he played by the few rules there were. Having done that, the voters had their say, and the fact they seem to have chosen someone nobody knew for reasons no one can discern makes no legal difference whatsoever.
The constitution does not require anyone to have a reason when they vote for a candidate. But when it comes to passing laws, the constitution does have something to say. The standards are sometimes quite strict - neither legislators nor voters can enact a law restricting free speech or the free exercise of religion - and sometimes they are relaxed to the point of torpor.
That's one of the most important questions in Perry. The court will have to decide whether a law quite explicitly targeted at lesbians and gay men is entitled to some form of heightened scrutiny under the constitution's equal protection guarantee. But even if it's not, the constitution says that the law has to at least have a rational basis.
In his response to the judge, Cooper seems to be confusing elections for candidates with elections to change the law. Voters didn't have to have any reasons at all to vote for Alvin Greene, but (like legislatures) they have to at least have something in mind - something rational - when they pass a law; and the standard may just be a bit higher still when they pass a law that discriminates against a specific minority of the electorate.
This is why the National Organization for Marriage and the Republican Party (I say this with regret) have been so aggressive in taking marriage to the ballot. Voters can, in fact, cast their vote based on passions and even prejudices, and there is no shortage of people who still harbor some serious misperceptions about lesbians and particularly gay men.
In electing a candidate, if the voters had chosen a heterosexual over a lesbian in (let's say) an election for mayor of a good-sized Texas city because (let's say) they simply didn't like lesbians, well, that's politics, and no one could challenge their reasoning. And if they'd chosen the lesbian instead, well, that, too, is politics.
But when voters pass a law that discriminates against not just one lesbian, but all of them, and all gay men too, then the constitution does have a rule. Again, it's not yet clear how strict that rule is, but even the most deferential court review requires the law to be justified by something, anything, that's rational.
The court should search hard for such a justification. Courts shouldn't lightly overturn a majority vote of the people, or of a legislature. But when a prominent and experienced lawyer tells a court he needs no evidence for his case, that is a sign of the lawlessness that our constitution is there to guard against.
H/T to Karen Ocamb
16 Comments for “Evidence? We don’t need no stinking evidence!”
posted by Tom on
Cooper did as miserable a job in final arguments as the Prop 8 defense team did at trial. I don’t think that Judge Walker has, given the record, much choice but to rule in favor of the plaintiffs. The parties pretty clearly were framing their arguments to present the best possible argument for the Supreme Court, and Judge Walker, with his extensive list of questions to both sides, seems to have had the record for the Supreme Court in mind, too.
Within that context, I found the following exchange fascinating:
Judge Walker and Olson had been discussing Loving v. Virginia, the decision in which the Supreme Court ruled state bans on interracial marriage unconstitutional.
Judge Walker pointed out that state bans on interracial marriage had been eroding in the years before Loving was decided, and that, at the time Loving was decided, a majority of states had removed bans on interracial marriage, once ubiquitous, through the political process. At the time Loving was decided, bans on interracial marriage existed in 15 or so “seg states”. We will have to wait another ten or fifteen years, most likely, for the situation to replicate itself with respect to same-sex marriage.
Tacitly acknowledging that the Supreme Court does not, normally, get too far out in front of public opinion, Judge Walker was asking, in effect, “Isn’t it a fool’s errand to put this case in front of the Supreme Court in 2011 or 2012, before a majority of states have removed the ban on same-sex marriage, instead of letting the political process play out so that the Supreme Court can decide the issue with relative impunity?”
That question was at the core of the argument between the “state-by-state strategy” adherents — the ACLU, Lambda Legal and so on — and Boies/Olson when the case was filed, and was the reason behind reluctance by the “state-by-state strategy” power players to support the case in its early stages.
Olson’s answer is fascinating and addresses the reason why this case, at this time, in this circumstance, was the right case to bring a challenge. Olson’s response points out that Perry v. Schwarzenegger is perfect storm, a case brought on facts that, unlike any other case that could be brought at this point in our nation’s history:
The facts underlying Perry v. Schwarzenegger bring together, uniquely of all the cases that could be brought in the United States at present, the threads of Romer v. Evans and Lawrence v. Texas.
In Romer, Colorado voters adopted Amendment 2 to their State Constitution precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their “homosexual, lesbian, or bisexual orientation, conduct, practices or relationships.” The effect of Amendment 2 was to nullify a number of laws and ordinances at state and local level protecting gays and lesbians from discrimination. The Supreme Court decided that Amendment 2 had “no rational basis”, and invalidated Amendment 2 under the Equal Protection Clause.
Decided in 1996, Romer stood in obvious tension with Bowers v. Hardwick, a 1986 case that legitimized sodomy laws. In Lawrence v. Texas, a 2003 decision, the Supreme Court, relying in part on the Court’s reasoning in Romer, expressly overruled Bowers and struck down the nation’s remaining sodomy laws.
Together, Romer and Lawrence set the stage for Perry v. Schwarzenegger and future challenges to anti-marriage laws and state constitutional amendments. Romer requires a “rational basis” for the anti-marriage laws and amendments, a basis increasingly found lacking as cases develop at state-court level, and Lawrence removed criminalization of sodomy as a rational basis, as Justice Scalia noted in his ill-tempered dissent:
Justice Scalia is correct in his reasoning — if “moral disapproval” is not a “rational basis” for prohibiting same-sex marriage, then, inevitably, anti-marriage laws and amendments must fall under judicial scrutiny.
What is unique about the facts underlying Perry v. Schwarzenegger, and the reason why this case, at this time, in this circumstance, was the right case to bring a challenge, is that Perry is “a case … like Romer, where the right existed and then it was taken away“.
In response to the California Supreme Court’s ruling requiring California to permit same-sex marriage on the same basis as opposite-sex marriage, the California court held that marriage was a right under California’s Constitution, and in reliance on that decision, roughly 18,000 couples were married before Prop 8 amended California’s Constitution to take away the right.
That presents a unique factual situation, because the other anti-marriage amendments to date have been premptive, precluding state courts or state legislatures from recognizing the right to marry.
It also presents a basis on which Judge Walker can rule narrowly, limiting his ruling to the particular facts of Perry v. Schwarzenegger, basing his ruling squarely on Romer, limiting his decision’s application to California, the sole state to date in which the right to marry was granted and then “taken away”.
I think that a narrow decision, limited to the facts of Perry and based squarely on Romer, has a good chance of success in the Supreme Court. In fact, a narrow decision in favor of the plaintiffs, sustained by the Ninth Circuit, might make Supreme Court review unnecessary, because the opinion would not be of national scope. In either event, a narrow decision answers Judge Walker’s “political tide” question, because a narrow opinion will allow the Supreme Court to set aside the question of the constitutionality of anti-marriage laws and amendments in general until a later day, when the “political tide” will, inevitably, be in place.
I’ve read Judge Walker’s questions to counsel on both sides, and based on the scope of the questions, I’ll admit that it doesn’t look like Judge Walker is going to issue as narrow an opinion as I would prefer to see at this point. Whatever the scope of Judge Walker’s opinon, though, I’m willing to bet that it will be well-crafted and carefully reasoned, supported by an extensive record. Judge Walker is known for legal craftsmanship.
I’ve followed this case closely, and I think that Boies/Olson have done a brilliant job, both in shaping the case and in conducting the trial. As the case moves forward through the Ninth Circuit and, perhaps, the Supreme Court, I think that Ted Olson will see to it that the appellate process is handled with equal skill.
Whatever the ultimate outcome, all of us who are gay and lesbian owe the lawyers involved a debt of gratitude. We’ve had the best team possible on our side.
posted by John Howard on
I’m curious if you think a law limiting human reproduction to a man and a woman’s gametes targets gays and lesbians. Yes, it would prohibit two men or two women from procreating together, but not because they are gay.
It will never be ethical to create a child from experimental modified gametes, which same-sex couples uniquely and publicly would require to conceive together. All methods of creating a person other than joining the unmodified natural gametes of a man and a woman should be prohibited with a federal law.
Marriages should also protect the right of the couple to conceive children using the couple’s own genes. No marriages should ever be prohibited from conceiving children using their own genes, because then all marriages could be forced to use modified or substitute genes. No: the right of marriage is to use the couples own genes.
posted by Debrah on
Weddings For Everybody! from Maureen.
())))) YAWN ((((()
Prop 8 trial closing arguments
Sex, love, and videotape
posted by Tom on
By way of augmenting Debrah’s link, for those interested, a transcript of the closing arguments is available online. You do not have to rely on newspaper coverage, which is usually fragmentary and incomplete. Believe me, if you are willing to take the time to read the actual transcripts, it will be worth your time.
posted by Jorge on
I am not following the trial except from this site, but I have to agree with Tom that Mr. Cooper is not making an effective case.
The idea that marriage is fundamental to the survival of the human race is supported by a mountain of evidence and argument–all of it rebuttable. Perhaps, if Cooper is looking forward toward a Supreme Court case, he does not want to make it easy for the other side to figure out his best and final argument.
Or maybe he’s just stupid.
posted by Tom on
I think that Cooper is stuck with the fact that there aren’t a lot of reasons to ban same-sex marriage that meet the “rational basis” test.
He was trying, albeit without much support from the record in the trial.
At one point, Cooper tried to interject the “irresponsible breeders” line of reasoning — the only line of reasoning that has been successful in state court decisions to date — into the closing argument, citing an Eighth Circuit opinion:
The “irresponsible breeders” line of reasoning — the idea that the state can rationally confine marriage to straight couples because the state needs to bribe straights into taking care of the children they conceive, whereas there is no need to bribe gays and lesbians, who think about having children before adopting them, and therefore can be expected to take care of them — was successful in three states, Indiana, New York, and Washington.
It is goofy, back-asswards reasoning, but it seems to be just about the only argument that works. Unfortunately for Cooper, the line of reasoning was not well supported by the trial record in Perry.
This led Judge Walker and Cooper into yet another of the exasperating go-around about what, if anything, in the trial record supported the assertion, and, if not, why not, concluding with this gem:
I don’t know what the Supreme Court is going to make of all of this in a couple of years. But the Proposition 8 defense has been a mess from the beginning, and Cooper was stuck with it.
posted by darkmoonman on
Yet another parade by rabid Xtians of their ignorance, bias, and mindless hatred.
posted by Throbert McGee on
What’s striking to me is that Cooper evidently didn’t think it worthwhile to say anything in favor of California’s domestic-partnership laws — nor did he attempt to rebut Olsen’s claim that DP laws somehow stigmatize gay couples and make them second-class citizens.
I can only guess that Cooper (and the “Defense of Marriage” folks backing him) did not want to go on record with anything that resembled a positive endorsement of domestic-partnership or civil-union laws, lest they encourage the “spread” of DP/CU into states like Arizona (where DP/CU legislation does not exist yet, but where there is no constitutional obstacle to such laws being introduced).
posted by Throbert McGee on
Obviously, for gay people in states that don’t have ANY form of civil-unions (which is to say, the majority of states!), something like this would’ve made a very welcome banner headline:
ANTI GAY-MARRIAGE ATTORNEY COMES OUT AS CIVIL-UNION BOOSTER
posted by Tom on
I have no doubt you are right. The anti-marriage crowd fights civil unions and domestic partnerships — even extremely limited domestic partner laws like that vetoed by Governor Pawlenty — as relentlessly as they fight same-sex marriage.
posted by Throbert McGee on
Tom: I guess “hoist by their own petard” would be appropriate here — I mean, if they really care about preserving marriage as a strictly heterosexual institution, they oughta be endorsing domestic-partnership laws as loudly as possible (the more attractive that DP laws are as an alternative to same-sex marriage, the weaker the gay case for claiming that we’re being treated unjustly).
But since they’re unwilling to put in a good word for DP/CU laws, they may end up having to deal with court-forced SSM.
posted by BobN on
Perhaps, if Cooper is looking forward toward a Supreme Court case, he does not want to make it easy for the other side to figure out his best and final argument.
If and when it gets to SCOTUS, Cooper will just let Scalia, Thomas, Roberts, and Alito make his arguments for him.
posted by Jorge on
You haven’t read too many Supreme Court cases, have you?
posted by Tom on
I think that’s true, Throbert. The equal protection argument is harder to make when, as in California, gays and lesbians have “everything-but-the-name civil unions”.
I do not believe that EBTNCU pass constitutional muster, but it is a harder case to argue, because the case necessarily relies on (a) discriminatory intent (“The sole reason that the state adopted civil unions is that civil unions are not marriage.”) and/or (b) cultural and social norms (“Marriage is understood to be different from and better than civil unions.”) and/or (c) discrimination without rational basis (“If the two are legally equivalent, what is the rational basis for setting up two classes?”). Floating around in the background is the Brown v. Board question of whether “separate but equal” is necessarily a false statement.
The idea of “everything-but-the-name” can be true, of course, if and only if marriage and civil unions are and can be kept on an equal footing legally.
Right now they are not. An example: In California, some gay and lesbian couples are married and some are in civil unions. The two are supposedly legal equivalents. However, New York, for example, recognizes California same-sex marriages as New York marriages (should the couple move to New York) but do not recognize California civil unions are New York marriages.
EBTN means EBTN, just as equal means equal, and in the case of an institution created and maintained by state law, EBTN entails portability on the same footing as marriage portability, and that entails recognition on an equal footing in all fifty states and at the federal level. We are a long way from that …
Within the complex interplay of state-to-state and state/federal laws, I think “legal equivalence” will prove to be impossible, and eventually, as experience with civil unions grows, it will become clear that civil unions are a legal albatross.
posted by John Howard on
Tom, I agree that EBTN CU’s aren’t Constitutional. They also don’t satisfy anyone, because they’re seen as stepping stones to marriage, not a permanent solution. But I’ve got a suggestion to make CU’s Constitutional and acceptable to a majority of people. If CU’s were defined as Everything But Conception Rights, and we passed an Egg and Sperm law that prohibited same-sex conception, then there would be a rational difference in rights that would pass Constitutional muster, and it’d be a permanent difference, fixed by reality.
posted by Debrah on
“…….and it’d be a permanent difference, fixed by reality.”
*************************************************
There’s already a permanent difference and it’s definitely fixed by reality.
SSM will never be real marriage, just by definition.
The reality is that you need to find a new appellation. “Marriage” was dreamed-up by heteros and defines the male-female ’til death do us part nonsense.
Civil unions……marriage……civil unions……marriage.
What are two over-the-top and madly in love men to do?
Well…….schlep over to Barnes & Noble and pick up a copy of E. M. Forster’s Maurice for a segue into another pity party.