Judge Vaughn Walker

There were so many people trying to get in to watch the final day of the landmark trial challenging California’s same-sex marriage ban, the court staff had to set up an additional overflow room for observers. Those dozen or so members of the public who managed to snare seats in Courtroom 6 on the 17th floor of San Francisco’s federal courthouse building had to stand in line starting at 5:45 Wednesday morning to get them.

But gays in California are used to standing in line. They stood in line exactly two years ago—June 16, 2008—to be among the first same-sex couples to obtain marriage licenses in the state. Now, they were watching closing arguments in Perry v. Schwarzenegger, an historic case challenging the November 2008 initiative that took away the right for gay couples to obtain marriage licenses in California.

Conservative icon Ted Olson, one of the most famous attorneys in the country, choked back some emotion as he talked about the “grave and irreparable harm” Proposition 8 inflicts upon gay people. And he implored U.S. District Court Judge Vaughn Walker to muster the courage to strike down the law in the same way the California Supreme Court had been the first to strike down the ban against interracial marriages in 1948.

His conservative opponent, Charles Cooper, for the Proposition 8 supporters, passionately regretted in court Wednesday a statement he made a year ago at a preliminary hearing. At that hearing, Judge Walker asked Cooper what harm allowing gays to marry might wreak upon straight couples’ ability to procreate. Cooper had replied, “I don’t know,” and was repeatedly quoted in the media as saying so.

“I don’t know how many times, Your Honor, I had wished I could have those words back,” said Cooper, as the courtroom erupted in laughter. “Whatever your question is now,” he said, gesturing boldly, “I damn sure know. Whatever it is.”

To that, Judge Walker asked Cooper to explain what the Yes on 8 team’s expert witness David Blankenhorn meant when he testified at trial in January that, “America will be more American or will be closer to the American idea” when same-sex marriage is legalized.

Cooper said he thought Blankenhorn was “giving voice to a sentiment” shared by many Americans but that that sentiment does not overcome “the threat of harm to a central and vital institution—marriage.”

Judge Vaughn pressed Cooper several times to identify specific evidence and witnesses that demonstrated this harm, but Cooper, instead, talked of the potential for unforeseen consequences.

“It is not possible to predict with certainty and confidence” what change might come about to marriage as an institution should same-sex marriages be legalized, said Cooper, but it “could be profound.”

“It could portend some social consequences that would not be good ones,” added Cooper. “And that reality—that I didn’t know—is because no one can know.”

Cooper argued that this fear of unknown consequences is a “rational basis” for the ban on same-sex marriage.

“If there is a legitimate and rational basis to be concerned about,” he said, “it couldn’t be more rational for the people of California to say, ‘We aren’t going to run that risk. . . . We’re going to wait. We want to see what happens in Massachusetts. We want to see what happens right here, and elsewhere.’ And perhaps,” said Cooper, “Mr. Olson and his clients, whose sentiments are powerful, will be able to convince their fellow Californians that, in fact, they’re right.”

“Is the ‘I don’t know’ answer enough?” pursued Judge Walker.

“It is,” said Cooper.

Not surprisingly, Olson disagreed, and he had U.S. Supreme Court citations to back it up. He pointed to a 1985 decision—Cleburne v. Cleburne—in which “the Supreme Court did say . . . that mere negative attitudes, fear, or unsubstantiated factors or assertions wouldn’t be sufficiently cognizable.”

“They just don’t know,” said Olson of supporters of Proposition 8. “That is the essence of their case as it comes to the end of the trial and the closing arguments. They just don’t know whether same-sex marriage will harm the institution of heterosexual marriage, and I submit the overwhelming evidence in this case proves that we do know. And the fact is allowing [same-sex marriage] will not deter heterosexuals from marrying or staying married or from having babies…[but] strengthens the institution of marriage for heterosexual and homosexual persons and their children.”

“Ted Olson cleaned Cooper’s clock,” said Kate Kendell, head of the National Center for Lesbian Rights. She called Olson’s performance “brilliant” and “meticulously prepared” and Cooper’s arguments “thin and ludicrous.”

“Olson, and the whole trial, made clear that voter attitudes about gays is just not enough to justify such a damning exclusion,” said Kendell. “It was a bravura performance—start to finish—and an honor to watch.”

Jenny Pizer, head of Lambda Legal Defense and Education Fund’s Marriage Project, said Olson did “an effective job” of hammering home the U.S. Supreme Court precedent supporting the “freedom to marry as a right of individuals that is so basic and important that the state cannot abridge it. . . .”

Walker also asked questions about “when is it appropriate for the judiciary to weigh in on legal and constitutional questions that may touch on sensitive social issues.” When the U.S. Supreme Court overturned laws against interracial marriage, with Loving v. Virginia, he noted, the political tide was already turning in favor of doing so—only about a dozen states still had such laws in 1967, down from a high of 41.

“Do we have such a political tide here that’s going to carry the Supreme Court?” he asked.

“I believe there is a political tied running,” said Olson. “And I think that people’s eyes are being opened. People are becoming more understanding and tolerant.” But Olson said the court should not require political polling to be “a few points higher” before ruling against discrimination.

“Some judge is going to have to decide what we have asked you to decide,” said Olson, “and there will never be a case with a more thorough presentation of the record.”

Judge Walker will, of course, decide. The primary questions before him are whether California’s ban on same-sex marriage violates the federal constitution’s guarantee to equal protection and due process. Assuming he rules that the ban does so, he must then determine whether there is some reason that justifies the ban. And related to that inquiry, he must decide how compelling a reason is required in order to trump the constitutional rights of gay citizens.

“I’ll be floored if he does not offer the Ninth Circuit [U.S. Court of Appeals] his conclusions about whether very rigorous scrutiny should be applied to antigay discrimination,” said Lambda’s Pizer.

Kendell said she thinks Walker will use “some higher level of scrutiny” than just a simple “rational” one—the easiest level to satisfy. The higher levels of review—quasi and strict—she noted would be “enormously helpful in challenging all manner of laws that discriminate based on sexual orientation.”

The highest level of review—strict scrutiny—is applied to laws that disfavor persons on the basis of race, and Olson relied heavily on comparisons between the current ban on same-sex marriage and the ban that existed in the 1960s on interracial marriage. The claim by supporters of Proposition 8, he said, that marriage has “traditionally” been understood to be one man and one woman does not constitute a reason to ban same-sex marriage.

That, said Olson, is a “Because I said so” type reason that “would justify racially segregated schools” in the sixties.

But if Walker applies the lowest level of scrutiny, said Kendell, “virtually every state law we attack survives because, at the rational basis level, laws essentially get a free pass.”