Prop. 8 supporters have no defense - The evolving justifications for legalizing discrimination

I love that a lawyer's only job is to make an argument and that the good ones can take the same set of facts and "argue it round or argue it square." I love that most legal proceedings are designed to let one side expose the weaknesses in the other side's argument, so I'm really loving the coverage of the trial of Perry v. Schwarzenegger, going on right now in San Francisco, over the legality of discriminating against same-sex couples.

On one side are David Boies and Ted Olson, the heavyweights who represented Al Gore and George W. Bush in the 2000 Florida recount. They are arguing that by not allowing same-sex marriages to be legally recognized in the same way as opposite-sex marriages, California's same-sex couples are being denied their 14th Amendment rights to due process and equal protection. They have decades of legal precedent on their side and a 2008 California Supreme Court ruling that a person cannot be denied the fundamental right to marry because of his or her sexual orientation. Also on their side is one of the named defendants, Attorney General Jerry Brown, who took the basically unprecedented step of joining the plaintiffs after correctly deciding (along with Gov. Schwarzenegger) not to defend the lawsuit.

None of the named defendants would stand up for Prop. 8, so that task falls to "Protect Marriage" and lead attorney Charles Cooper. He is arguing that California voters are entitled to overrule their Legislature and their judiciary and use a ballot initiative to amend the state Constitution in order to legalize discrimination against same-sex couples. What he wasn't able to articulate is exactly why a small majority of California voters (remember that Prop. 8 passed by 600,000 votes in a state with a population of over 35 million) should be able to take rights away from a group of people whose rights would otherwise be protected by law.

The plaintiffs' opening statement was pitch-perfect. The defendants … not so much. Olson started with, "This case is about marriage and equality. Plaintiffs are being denied both the right to marry, and the right to equality under the law." He went on to say, "In May of 2008, the California Supreme Court concluded that under this state's Constitution, the right to marry a person of one's choice extended to all individuals, regardless of sexual orientation, and was available equally to same-sex and opposite-sex couples. In November of 2008, the voters of California responded to that decision with Proposition 8, amending the state's Constitution and, on the basis of sexual orientation and sex, slammed the door to marriage to gay and lesbian citizens … . Proposition 8 singled out gay men and lesbians as a class, swept away their right to marry, pronounced them unequal, and declared their relationships inferior and less-deserving of respect and dignity. In the words of the California Supreme Court, eliminating the right of individuals to marry a same-sex partner relegated those individuals to 'second class' citizenship, and told them, their families and their neighbors that their love and desire for a sanctioned marital partnership was not worthy of recognition."

That statement basically won the case on trial day one. It was brilliant in the way it challenged the defense to show its opposition to marriage equality was about anything other than the sexual orientation of the couple. It clearly put Cooper on the defensive because he didn't open by telling the judge what Prop. 8 was about, but what it wasn't about. Specifically, it wasn't about "ill-will nor animosity toward gays and lesbians," he said, "but special regard for the institution of marriage." He said that it is "the purpose of marriage — the central purpose of marriage — to ensure, or at least encourage and to promote that when life is brought into being, it is by parents who are married and who take the responsibility of raising that child together."

The argument that people marry in order to breed is only the latest in a series of justifications for taking away the rights of our gay and lesbian friends and neighbors. Initially, it was the lie that parents wouldn't have the right to object to kids being taught about same-sex marriage in school. When challenged in court, Prop. 8's raison d'être then became this threat to baby-making if non-breeding couples are allowed to marry. But the defense wasn't able to show any potential harm to the state's "procreation purpose" when Judge Vaughn Walker asked back in October and, as of yesterday, still couldn't.

In his opening, Cooper said a "broad consensus of leading scholars will show that marriage is about socially-approved sexual intercourse and the production and protection of children," revealing his side's true motivation — and destroying the lie that they're worried straight people won't hump around once same-sex couples' rights are restored. The bottom line is they don't approve of gay sex and want to deny people who have gay sex the right to marry and raise children. I'm no lawyer, but even I know that doesn't make any sense. And as the best lawyer I've ever seen, Johnnie Cochran, might have put it, "if it doesn't make sense, it's not a defense."