Prop 8 Ruling: Same-Sex Marriage Foes Conduct Post-Mortem


Andrew Cohen

Legal Analyst
Leave it to the Liberty Counsel, a conservative action group, to say what many people have been thinking about a federal judge's ruling Wednesday that struck down California's anti-same-sex marriage initiative. Proposition 8, the group alleges, was not "adequately defended" in court in San Francisco by a rival conservative group, the Alliance Defense Fund.

Here is a portion of the organization's press release issued just hours after U.S. District Judge Vaughn Walker declared the marriage ban unconstitutional under the equal protection and due process clauses of the Constitution:
The California Attorney General did not oppose Liberty Counsel's intervention, but ADF did. Liberty Counsel sought to provide additional defense to Prop 8 because of concern that the case was not being adequately defended. After ADF actively opposed Liberty Counsel, ADF presented only two witnesses at trial, following the 15 witnesses presented by those who challenged the amendment. Even Judge Walker commented that he was concerned by the lack of evidence presented by ADF on behalf of Prop 8.

These sentiments go beyond mere rivalry or envy among religious groups vying to put a nail in the same-sex marriage coffin. They help insulate Judge Walker (a little, anyway) from the wrath of Prop 8's supporters by forcing the following question -- do biased judges truly express open and persistent concern for the very litigants they are supposedly biased against? And they also reflect a healthy and welcomed degree of astonishment about the paltry defense offered up for Prop 8. Indeed, many court observers have known for months now that lead defense attorney Charles Cooper and his team were doing a poor job at trial against esteemed counsel for the opposition, the legal rock stars Ted Olson and David Boies. Judge Walker even commented on the problem during closing arguments -- something I have never seen in nearly 14 years as a legal analyst.

You might even say the Liberty Counsel's shot across the bow was discreet and generous in the circumstances; of the two witnesses mentioned above, the testimony of one was deemed inadmissible by Judge Walker because it was so utterly unbelievable and contradictory. Liberty Counsel is right -- if a little too polite. There was simply no "there" there to the Prop 8 defense. A witness ratio of 15-1? No credible expert witnesses? Here is a great passage from a story written 50 days ago by Richard C. Paddock, a colleague at Aol, which highlights how truly inept Cooper and Company were. It was a prescient piece of journalism.

Paddock wrote about closing arguments:
After Cooper asserted that he did not need to present evidence, Walker questioned his approach to the case and the lack of expert witnesses called to testify on the legal and social issues in the case. "Seven million Californians, 70 judges and this long history that you described," the judge said. "Why did you present but one witness on this subject?" Moments later, Cooper made a point of telling the judge that he did not know what effect banning same-sex marriage would have. "I don't know," he repeated several times. The judge then questioned whether that was an adequate argument when denying some citizens their constitutional rights. "I don't know where this is going to lead," Walker said, summarizing Cooper's argument. "Is that enough to impose restrictions on some citizens that other citizens don't suffer?"

If this were a movie, the Jon Lovitz character from "Saturday Night Live" -- yeah, yeah, that's it -- might be cast as Cooper. Or maybe Jim Carrey reprising his role as the hapless attorney in "Liar, Liar." And if this were a normal case about money or property rights, the "client" right about now might be rooting around for a malpractice attorney to investigate whether Cooper and Company didn't breach some sort of a duty of zealous representation. But of course there is nothing normal about this case. That's evident, too, from the way supporters of Prop 8 -- the folks who oppose same-sex marriage -- have gone after Judge Walker and his lengthy ruling. The contortions have been been as impressive as they have been numerous.

That the veteran, conservative judge -- first an unsuccessful appointee of Ronald Reagan and later a successful appointee of the first President George Bush -- would be riddled with gay slurs following the ruling was as inevitable as it is appalling. What's also fascinating about the reaction, though, is the way foes of same-sex marriage have gotten around the inconvenient truth -- that their advocates and tribunes came up so woefully short in court. Instead of acknowledging that Judge Walker was presented with a palpably uneven case about Prop 8's constitutionality, and without giving the judge any credit for trying over and over again to draw out Cooper's evidence and analysis, these folks instead reason that the one-sided result occurred because the judge is biased. To use U.S. Supreme Court Chief Justice John Roberts' famous analogy, that's like blaming the home-plate umpire for calling an out after the batter swings at and misses three straight pitches.

That it's easy and popular to blast a federal judge -- and evidently a gay one to boot -- doesn't make the fury well-directed. The rout occurred in Judge Walker's courtroom because Cooper and Company didn't bring enough good witnesses to rebut the testimony of the anti-Prop 8 witnesses and because defense attorneys couldn't or wouldn't effectively undermine the credibility of those anti-Prop 8 witnesses. The sweeping defeat occurred for Prop 8 supporters because Cooper and his colleagues evidently didn't understand their burden of persuasion or were unable to bear it. Reading Paddock's excerpt above makes clear that Judge Walker was, as Liberty Counsel puts it, "concerned" about the lack of evidence by Prop 8's lawyers. As well he should have been.

But none of that made any difference, for example, to Gerald Bradley, a Notre Dame law professor. He spun the ruling as an example of the judge treating pro-same-sex marriage witnesses differently (and better) than anti-same-sex marriage witnesses. Bradley wrote: "One might think, too, that some (and perhaps a lot) of what the plaintiffs' 'expert' witnesses against traditional marriage would be branded by a fair-minded judge as the fruit of passionate political advocacy, and not dispassionate scholarly analysis? Not in Judge Walker's court. Read the opinion and you will see that, when it comes to the defense witnesses in favor of Proposition 8, Judge Walker takes no prisoners, gives no quarter, shows no tender mercies." In his essay, there was no mention of the 15-1 witness ratio, or Cooper's inept performance during closing arguments, or the atrocious way in which David Blankenhorn performed on the stand as a witness for Prop 8.

The folks from the National Organization for Marriage came only a little closer to the nub of the matter. In their press release following the announcement of the ruling, they started off well, noting correctly that "anyone who watched this trial closely knew that Judge Walker would strike down Prop 8." But alas, NOM didn't blame Cooper and the lack of a defense case for the result. Instead it was Judge Walker's fault. "In Judge Walker's mind," NOM wrote, "this is not a close case; to him there is no case at all for disagreement." Indeed, when one side at trial does not present good evidence, or any evidence, or presents it so poorly and ineffectually that the judge has to publicly beg for more, there often is no valid legal reason for disagreement. And it's not the judge's job to create any. Until Prop 8's supporters begin to understand and accept that, they'll be barking up the wrong tree.