Closing arguments Wednesday in the constitutional showdown over same-sex marriage in California have more than just an air of drama
about them. U.S. District Judge Vaughn Walker asked the lawyers a few weeks ago to answer some key legal questions and the responses, filed Tuesday, were telling.
The case is really about Proposition 8, the ballot initiative which California voters passed last year banning same-sex marriage in the Golden State. Opponents of Prop 8
, who support the recognition of same-sex marriage as a fundamental Constitutional right, filed a lengthy brief filled with a great deal
of citations to the factual record developed at trial. They want Judge Walker to feel comfortable that there is a factual basis upon which he can create a "new" constitutional standard, at least pending review of the United States Supreme Court. When you are suffering from bad law, the saying goes, you argue the facts.
And when you are suffering from bad facts, the corollary says, you argue the law. And, indeed, supporters of Proposition 8
-- the folks who are opposed to same-sex marriage -- filed to Judge Walker a lengthy brief with many answers
that were noticeably short of factual citations. The folks on this side of the equation did not produce a great deal of evidence supporting a ban on same-sex marriage and so they don't want the judge straying out too far from established legal precedent.
Apart from the answers he received, Judge Walker's questions also offered trial watchers a rare glimpse into the mindset of a working jurist. I suspect the complex answers to these questions -- and whatever else the judge may get out of the attorneys in court Wednesday -- will help him complete the landmark ruling he surely has begun to write.