This week in a federal district courtroom in San Francisco, the trial that could alter the future of the institution of marriage came to an end. The closing arguments featured prominent national attorneys seeking to answer 39 final questions framed by the presiding judge, Vaughn Walker. At issue is the contention of plaintiffs that Prop 8, a voter-approved constitutional amendment that was adopted in November 2008, violates the U.S. constitution.
The National Organization for Marriage, whose California entity was one of the prime proponents of Prop 8, alongside the organization Protect Marriage.com, featured author and columnist Maggie Gallagher live-blogging from the courtroom, as well as live Twitter feeds from various viewpoints on the case. The final oral argument came later than expected due to delays over disputes regarding the access of Prop 8 proponents to the campaign emails of groups that favor same-sex marriage. The issue arose when Judge Walker previously ruled that Prop 8 proponents were required to turn over their internal campaign emails to the same-sex marriage advocacy groups. The pro-Prop 8 groups motioned to level the playing field on such access.
The entire process of examining subjective voter motivations underscores a major sub-theme in the case, since not only is the definition of marriage at issue but so also is the ability of the nation’s voters, not only in California but in the dozens of other states that have amended their constitutions to protect traditional marriage, to debate and resolve contentious issues of social policy. That fact has only further tempted advocates of federal judicial intervention in California to equate belief in the importance of traditional marriage with racial bigotry, a charge strongly disputed by current African-American leaders as well as the historical posture of leading religious groups that fought Jim Crow laws and bans on interracial marriages.
Media reports have made much of the prominence of the attorneys who have stepped up to try to overturn California’s voters’ considered decision to protect traditional marriage. Those attorneys in turn are making much of the expert testimony submitted to the district court that the adoption of same-sex marriage will produce only benefits and no harms to marriage and to children. Government by a select few (“rule by professors,” as Gallagher termed it in her on-site blog) — including a judiciary being asked to enact legislative policy from the bench — rather than government of, by, and for the people was very much at stake in Judge Walker’s courtroom.