"Is That All You Got?"

How the proponents of a gay marriage ban just ran out of arguments.
by Dahlia Lithwick

Just found this one on Slate.com ... check it out:

One of the most remarked-upon aspects of the first round of Prop 8 litigation, that concluded this week with a 2-1 defeat for the initiative at the 9th Circuit Court of Appeals, was the weakness of the case against gay marriage. As Andrew Cohen explained at the time, at every turn Judge Vaughn Walker, who presided over the trial, expressed frustration at the fact that the opponents of gay marriage either had no case or couldn’t be bothered to make one.

Arguing for the gay marriage ban, seasoned attorney Charles Cooper called only two witnesses (the plaintiffs called 17), one of whom was not deemed qualified to testify as an expert. As Cooper finally explained in his closing argument, "Your honor, you don't have to have evidence for this. … You only need to go back to your chambers and pull down any dictionary or book that defines marriage," Cooper told the judge. "You won't find it had anything to do with homosexuality."

This defense satisfied almost no one. Ted Olson, the plaintiff’s attorney, was absolutely flummoxed by Cooper’s claim that he had no burden to do anything beside assert the immutability of traditional marriage. In his closing argument, a perplexed Olson replied, “You can't take away the rights of tens of thousands of persons and come in here and say 'I don't know' and 'I don't have to prove anything.' ”

An equally maddened Judge Walker agreed, railing in his opinion about how the Prop 8 proponents had failed to produce promised evidence and testimony. Even conservative groups wrung their hands, questioning whether Prop 8 had been “adequately defended” at the hearing. Then again, perhaps punting on Prop 8 was a strategic decision. Doing so allowed the supporters of Prop 8 to argue that the fix was in. Judge Walker, who is gay, and the Hollywood appeals court would never have given them a fair shake in the first place.

Or, perhaps, there was another explanation. Perhaps, as many speculated at the time, it reflected the deeper reality that there was no factual or empirical case to be made: The evidence, the data, and the experts overwhelming agree that gay marriage does not harm children. And that leaves opponents of gay marriage to argue a tautology: Gay marriage is wrong because it’s wrong.

You'll want to read the whole piece here ... but I wanted to post this excerpt here because it so resonates with some of the dialogues we've had in comment-land on this blog over the years with those whose bottom line is "don't confuse me with facts -- I have Sole Possession of The Absolute Truth and so have no need of your data." Happily, for all its flaws, our system of jurisprudence does not operate out of that paradigm. Something to rejoice and be glad in on a Friday morning!