It wasn't surprising that the federal trial on Proposition 8 in January confirmed that the same-sex marriage ban is destructive to family life and discriminatory toward a group that has historically been subject to abuse. What did surprise us: Some of the strongest arguments in favor of same-sex marriage were made by those opposing it.
Closing arguments in the case will be heard Wednesday in U.S. District Court in San Francisco, more than four months after testimony ended. Even so, it's easy to recall some of the startling moments of the trial. One witness who had been hired to testify that gay men and lesbians wield significant political power — and therefore were not a group that had especially suffered from discrimination — ended up conceding that at least some people voted for Proposition 8 because of prejudice against homosexuals. The witness, Kenneth Miller, a professor at Claremont McKenna College, also had made statements in the past that minorities were vulnerable to harm from ballot initiatives, and that courts should protect them from such harm — an argument that seemed to weaken the case for his side.
Then there was David Blankenhorn, the founder and president of the Institute for American Values, who testified that preserving traditional marriage should take priority over the rights of gays and lesbians — but then offered no proof that same-sex marriage would in any way harm the institution of marriage, and admitted that marriage would be beneficial to families headed by same-sex couples.
The objective of the lawyers arguing for Proposition 8 before Judge Vaughn R. Walker is to show that voters had rational reasons for approving it rather than being motivated by bigotry. And a key reason, one of the lawyers said, is that children fare best when raised by a married couple of opposite genders.
The premise itself is dubious. A longitudinal study published online this month in the journal Pediatrics found that the adolescent children of lesbian couples fare very well. In fact, they "rated significantly higher in social, school/academic and total competence and significantly lower in social problems, rule-breaking, aggressive and externalizing problems" than others their age.
The premise also is irrelevant. Just as we wouldn't propose taking marriage away from heterosexual couples even though their children might not do as well as those of lesbians, there is nothing reasonable about denying marriage to same-sex couples based on judgments about child-rearing or anything else concerning the perceived quality of their marriages. Despite what Proposition 8 supporters have tried to argue during the trial, marriage is not solely about procreation and raising children; for many couples, that's not even a factor. And same-sex couples who want children will have them whether or not they have a marriage license.
We're sorry that Walker has even asked for a discussion of this issue at Wednesday's session. Specifically, he wants to delve into the question of whether voters were acting rationally if they believed the marriage ban was in the best interests of children, even if their belief wasn't backed up by facts. Society doesn't force single parents to marry, even though there's a general presumption that having two parents would be better for the children. It doesn't force teenagers, still children themselves, to give up their children to older couples, or forbid people with kooky parenting theories to wed. Only gay and lesbian couples are singled out for this judgment of whether they're good enough to marry and have children.
Walker refused to allow a video broadcast of Wednesday's closing arguments after defenders of Proposition 8 opposed allowing the session to be aired. It's a puzzling decision, especially considering that the judge favored allowing cameras during the trial. But the U.S. Supreme Court rebuked him for that decision, agreeing with Proposition 8 supporters that witnesses who oppose same-sex marriage could face harassment or worse if their testimony were televised. Yet the pro-Proposition 8 witnesses already had made themselves public figures.
Prohibiting cameras in the courtroom makes even less sense for the closing arguments, when there are no witnesses to feel intimidated. In this instance, the theory is that lawyers might play to the cameras instead of to the judge. If they were foolish enough to do so, after investing this much time and passion on both sides, they could only lose ground by alienating the judge. The millions of people who have been watching with intense interest as the story of same-sex marriage unfolds have a legitimate stake in seeing and hearing the arguments that will determine whether gays and lesbians in California are granted the basic right to form families with the same legal status as all other families.