Proposition 8 proponents made judge’s decision easy

Tamara Holder Contributor
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For many, same-sex marriage evokes a broad array of passionate feelings. But, yesterday’s federal court ruling that struck down California’s same-sex marriage ban, Proposition 8, is not about feelings. In fact, yesterday’s ruling is not really even about the legality of Proposition 8 inasmuch as it is about the proponents’ complete failure to argue why Proposition 8 should have been upheld.

Feelings take a backseat in the courtroom; instead, the trier of fact must weigh and balance each sides’ arguments, based on the evidence presented at trial. As a result of the proponents’ embarrassingly weak position against same-sex marriage, U.S. District Court Judge Vaughn Walker ruled against them. Sorry to break the news here, but the “we feel same-sex marriage is a very, very bad thing” argument is a dead loser in any courtroom.

The plaintiffs filed suit based on a single issue: That Proposition 8 violates their Constitutional rights under the 14th Amendment that no “State [shall] deprive any person of life, liberty, or property, without due process of law” because the freedom to marry is a fundamental right, regardless of sexual orientation.

The proponents’ first mistake was their faulty, initial argument that opposite-sex marriage protects children and is more superior than same-sex marriage. In his decision, Judge Walker said:

The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.

After the proponents reviewed their pocket-version of the Constitution, they changed the “why” same-sex marriage should remain illegal to just “legal conclusions” such as: same-sex marriage “promotes stability in relationships between a man and a woman” and it promotes “statistically optimal child-rearing households.” Granted, these arguments could have been absolutely valid. The problem was that the Prop 8 proponents failed to prove-up their conclusions.

Then, during oral arguments seeking summary judgment, the Prop 8 proponents claimed “the state’s interest in marriage is procreative” but when the court asked them to prove up their conclusion, their attorney said, “Your honor, my answer is: I don’t know. I don’t know.”

At this time, the proponents should have known that the Judge Walker was going to expect them to provide the court with some kind of proof, documentation, studies, and witnesses because their baseless conclusions were not going to suffice alone.

At trial, the Prop 8 proponents smoke-signaled that understood the judge’s [indirect] request for evidence when they told the court they were going to show “23 harmful consequences” of same-sex marriage.

But, instead, the smoke quickly cleared and the supposed representatives of the citizens of California rested their case after calling just a single witness. The proponents did not call same-sex couples to say that they do not believe in same-sex marriage and that civil commitment is sufficient; they did not call a psychologist to say children of same-sex couples suffer from emotional issues more than children of opposite-sex couples; they did not call ordinary citizens to say their same-sex couple neighbors adversely affect their neighborhood; they did not call a teacher to say children of same-sex couples have more behavioral issues in school than children of opposite couples. No, instead Prop 8 proponents called one witness, Davide Blankenhorn, who said marriage is a “private relationship between two consenting adults.”

He also testified that he developed his conclusions through “personal journey” and “exploration” and that “California stands to benefit if it were to resume issuing marriage licenses to same-sex couples.”

Judge Walker wrote:

Blankenhorn noted that marriage would benefit same-sex couples and their children, would reduce discrimination against gays and lesbians and would be “a victory for the worthy ideas of tolerance and inclusion.

The plaintiffs, on the other hand, presented eight lay witnesses, including the four plaintiffs, and nine expert witnesses. The judge heard testimony from the same-sex couples, a historian, a psychologist, a social epidemologist, and an economist, to name a few.

The proponent’s last pathetic attempt was during closing arguments. As Judge Walker noted:

proponents again focused on the contention that ‘responsible procreation is really at the heart of society’s interest in regulating marriage.’ When asked to identify the evidence at trial that supported this contention, proponents’ counsel replied, “you don’t have to have evidence of this point.”

The outcome may have been completely different had the Prop 8 proponents understood, before the trial started, that they needed evidence to support their claim that same-sex marriage shall remain illegal. Maybe next time, the anti-same-sex marriage proponents will leave their feelings at home and bring their evidence to court, instead of spoon-feeding their decision to the judge.

Tamara N. Holder is one of the nation’s rising attorneys and legal analytical stars. She is a Contributor for the Fox News Channel.  She has received recognition from some of the country’s most respected people, organizations and publications. Tamara founded The Law Firm of Tamara N. Holder, LLC in 2005.  Her work includes: criminal defense, expungement, race discrimination, police brutality, public policy, and pro bono practices. Seeing the need for outreach in this area, Tamara founded www.xpunged.com, a practice that provides a second chance to those individuals who have expungeable offenses under Illinois law.