Coming to a Close: A “Blockbuster” Showdown Over Prop 8

Karen Ocamb of LGBT POV offers a preview of closing arguments in the Prop 8 trial on Wednesday in San Francisco.

Ted Olson will deliver arguments for the plaintiffs, whose suit is backed by a group of entertainment industry activists, and Charles Cooper will deliver for Prop 8 proponents.

Today both sides gave an indication of their arguments when they filed written responses to dozens of questions posed to them by Judge Vaughn Walker. The plaintiffs’ answers are here.

As Nan Hunter of Hunter of Justice points out, the scope of the questions indicate that this case is about far more than same-sex marriage, as Walker is probing such things as whether sexual orientation is a choice.

She writes, “If the questions are any indication, the Walker opinion will be a blockbuster, at least in terms of its scope, depth and detail. Court decisions generally take an analysis far enough to resolve the particular issues presented, but no farther. But from the beginning of this case, Judge Walker has indicated a willingness to dig deeper, by forcing both sides – plaintiffs and defendants initially both resisted the demand for extensive evidence on the ground that it was unnecessary – to come up with evidentiary support for the kinds of quasi-philosophical arguments that make constitutional law so fascinating.”

Update: A few sample answers to Walker’s questions:

What empircal data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians?

Ted Olson, for the plaintiffs: “Uncontrverted evidence demonstrates that invalidating Prop 8 would immediately and significantly reduce discriminatory restrictions that prohibit individuals of the same sex from marrying in California.”

[W]hat evidence in the record supports a finding that sames-ex marriage has or could have negative social consequences?

Charles Cooper, for the defendants: “Redefining marriage in this way would also change its focus from the needs of children to the desires of the adult partners, suggesting that the latter are paramount, as well as weaken the social understanding that, all else being equal, what is best for a child is to be raised by its married, biological parents and to have a mother and father.”

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