The lawyers have spoken, endlessly it seems. Nervous or defiant or righteous, the witnesses have testified. The slick spinners have spun overtime. And the zealots have shouted up and down the great Golden State and beyond. Now, the fate of same-sex marriage in California (and beyond) is in the lap of one man, U.S. District Judge Vaughn Walker, a veteran jurist
who has painstakingly shepherded
the high-profile constitutional fight through its trial stage.
With closing arguments now complete
, with relative silence returned to the federal courthouse in San Francisco, all that is left for the judge to decide is which precedents invoked by the equal protection clause of the Constitution he prefers to acknowledge. The choice is stark but in my view the future is clear. I believe Judge Walker will
find a federal constitutional right to same-sex marriage. I believe he will
strike down the results of Proposition 8, the 2008 ballot initiative by which California voters outlawed same-sex marriage after the state's courts had endorsed it. Judge Walker will so rule, in large part, because he has been left with virtually no other choice as result of the odd tactics and weak case presented to him by opponents of same-sex marriage.
Take, for example, the bizarre courtroom display Wednesday by Charles Cooper, the lead attorney
for defenders of Prop 8. His side presented only two witnesses during the long course of the trial, neither of whom was particularly compelling. In fact, one of the defense witnesses, David Blankenhorn, was so hapless
during his testimony a while back that Judge Walker on Wednesday questioned his credentials
as an expert on marriage. When you have bad facts, you argue the law. When you've presented little evidence, or the evidence you've presented is not so hot, you say that evidence doesn't matter. That's partly why Cooper told Judge Walker during closing arguments, "Your honor, you don't have to have evidence for this."
To his credit, Judge Walker did not take Cooper's statement lightly -- the facts of this case surely do
matter. As recounted well
by AOL's Richard Paddock, the judge then asked Cooper: "Seven million Californians, 70 judges and this long history that you described. Why did you present but one witness on the subject" of the impact of Prop 8? Later, after Cooper admitted he didn't know what effect the banning of same-sex marriage would have, Judge Walker said: "Is that enough to impose restrictions on some citizens that other citizens don't suffer?" The exchange is telling because the "effect" of Prop 8 is a factor judges must weigh in the great constitutional balancing this case requires.
Being no potted plant, Ted Olson
for the plaintiffs jumped all over Cooper's remarks. Olson said: "Mr. Cooper: 'We don't know. We don't have to prove anything. We don't have any evidence.' You can't take away the rights of tens of thousands of persons and come in here and say 'I don't know' and 'I don't have to prove anything.' " This is a statement that every appellate judge who looks at Judge Walker's ruling will also ponder. When a majority turns on a minority, what level of evidence is required to justify the action? And can an action without evidentiary justification -- like Prop 8, same-sex marriage advocates say -- be upheld as constitutional against a discrimination challenge under the equal protection clause?
The sort of minimalist strategy of litigation by defenders of Prop 8 is either cocky, cynical or suicide. It's cocky if Cooper and Company believe the Constitution is so clearly against same-sex marriage that no set of facts would matter. It's cynical if Cooper believes that Judge Walker's factual findings will be irrelevant to the analyses that will spring up at the 9th Circuit. And it's close to suicide if Prop 8's defenders really believe that Supreme Court Justice Anthony Kennedy, whose swing vote will decide this whole thing
a year or two from now, will be comfortable endorsing a ban on same-sex marriage based upon such little courtroom evidence supporting it. There are a lot of "ifs" in a tactic like this.
Indeed, during the trial, the main defense witness also made points for the plaintiffs, the supporters of same-sex marriage. The aforementioned Blankenhorn, the key defense witness, ended up as the biggest star of the plaintiff's closing presentation. Olson played videotaped testimony of Blankenhorn declaring: "We would be more American
on the day we permit same-sex marriage than we were on the day before." With enemies like that, who needs friends? Indeed, perhaps Cooper will move, post-trial, to strike the testimony of his most notable witness.
With or without Blankenhorn, the plaintiffs loaded up on testimony. Seventeen witnesses
-- nine experts -- testified for Olson and David Boies, the other bottle on the top shelf
of anti-Prop 8 lawyers. The evidentiary record is massively skewed in favor of the plaintiffs and against the defendants. At closing, Olson told Judge Walker: "Heterosexual people are not going to stop getting married or stop having children or abandon their marriage because the next-door neighbor has a same-sex marriage." In the meantime, Massachusetts, the first state to recognize same-sex marriage, has the lowest divorce rate
in the nation.
Put yourself in Judge Walker's shoes. He is a trial judge. Evidence matters to him. So does a factual record to send up to his appeals court. When he looks to Prop 8's foes, he sees good evidence justifying an extension of existing equal protection precedent to cover same-sex couples who want to marry. When he looks to Prop 8's advocates, on the other hand, Judge Walker sees the risky argument that traditional marriage is so immutable that no factual evidence is necessary to defend its contours from extension.
If Judge Walker rules against Prop 8, and that is surely the way things look now, it's conceivable that the 9th Circuit (and/or then the Supreme Court) would rule that the facts developed at trial were "inadequate" for the judge to have reached the conclusion he reached. That might result in a remand of the case back down to the trial judge for more findings of fact or even a new trial, one federal judge I spoke to today said. But appellate courts are neither required nor necessarily advised to give trial lawyers a second chance to make their case. And in most cases they won't -- they'll just affirm the lower court. So it is quite likely that by minimalizing the importance of evidence at this stage of the dispute, Cooper has increased the likelihood of a defeat at trial and
a bad record upon which to appeal.
I'm betting that Judge Walker
bets on the facts. I predict he'll essentially say: Boies and Olson are right: "I don't know" just isn't good enough.