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Updated: Prop 8 Trial: Trying to Sway with the Final Say

San Francisco

Closingpress Shortly after the close of the Prop 8 trial, Ted Olson took to a stage framed by 10 American flags, and to the two dozen or so reporters gathered at the press conference made note of the fact that the Supreme Court had put the kibosh on plans to televise the proceedings.

If ever there were a trial in American history that should be seen by the American people, “it is this trial,” Olson said.

Just moments earlier, his counterpart and the chief legal defender of the ban on same sex marriage, Charles Cooper, gave brief comments from the same stage. But before the media could ask any questions, he was gone.

It wasn’t a big surprise. Throughout the trial, in and outside the courtroom, one side has sought maximum exposure and the other minimal impact — a contrast magnified in the closing arguments.

Olson dangled the notion that their case is on the right side of history. Cooper cited the way marriage has been recognized “for millennia.”

Olson seized on eloquence and emotion, punctuated by clips of the plaintiffs as they described the wrenching stigma they felt in how having access to marriage. Cooper, too, was emphatic in his convictions, but he tried his best to stick to his script.

Olson framed the case as in the progression of other civil rights landmarks, including Brown vs. Board of Education and Loving vs. Virginia, while Cooper at one point told Judge Vaughn Walker that for a definition of marriage, he could look in the dictionary.

Olson seemed to cite precedents effortlessly; Cooper often rifled through papers, wiped his brow and at one point told Judge Vaughn Walker that he just didn’t have an answer to one of his queries, that of whether one of their star witnesses, marriage expert David Blankenhorn, had ever been peer reviewed. He finally had to call for a break.

Granted, Cooper was not on his home turf. In an overflow courtroom, spectators  giggled at him numerous times as they watched the proceedings on a big screen. He drew a smattering of applause when he wrapped, but Olson got an ovation.

To proponents, none of this really matters when you consider their premise: That the burden is on the plaintiffs to prove there was no rational reason for voters passing Prop 8. The reason Cooper cited repeatedly was that the state had a purpose in limiting marriage to heterosexuals to “channel natural procreative conduct.”

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