Did Olson + Boies Just Secure the Death of Prop 8?

So, that is over. Well, it is minus the little part about Judge Vaughn Walker issuing his ruling. But both sides — AFER’s Olson-Boies and’s Charles Cooper — have rested their cases. And even if you’re a supporter of Prop 8, you’ve got to admit: the defense blew it.

In Perry v. Schwarzenegger, it was Olson and Boies, on behalf of their gay couple defendants, who were required to prove their case: That Prop 8 is unconstitutional, was motivated by animus, and must be struck down. They did it. More than adequately. And they didn’t just make the legal argument (which we’re well aware is the most important), but the logical one — how legalizing same-sex marriage won’t keep straight couples from getting married or having kids, and how re-authorizing marriages for gay couples will make more families more stable. And without question, Cooper’s roster of “experts” completely annihilated’s core arguments. There’s just no way around it; their own witnesses admitted laws like the Defense of Marriage Act, similar in many ways to Prop 8, are discriminatory. And how legalizing same-sex marriage is — wait for it, wait for it — a good thing.

The entire production was an embarrassment for the defense. That is an objective observation. And Brian Brown, president of the National Organization for Marriage (which was not a defendant in the case), accidentally confirmed as much in a live chat following Wednesday’s closing arguments.

Ah yes, the closing arguments. The final say from Olson-Boies and Cooper, as they worked to answer Judge Walker’s last litmus test before he concludes the future of Prop 8, and marriage discrimination in California, in the next few weeks.

“Eliminating invidious restrictions on marriage strengthens the institution of marriage,” Olson told the court.

As for Cooper, when he was asked by Walker, “Why is it that marriage has such a large public role? What is the purpose?,” the defense attorney responded, “This relationship is crucial to the public interest.… Procreative sexual relations both are an enormous benefit to society and represent a very real threat to society’s interest.” It again threw Cooper, and the defense team’s core argument, down the rabbit hole. “Threat?,” asked Walker. Cooper: “If children are born into the world without this stable, marital union … both of the parents that brought them into the world, then a host of very important, very negative social implications arise…. The purpose of marriage is to provide society’s approval to that sexual relationship and to the actual production of children.”

In a perfect world, the logic fail of Cooper’s thesis would be apparent for even the most ardent supporters of Prop 8. It likely won’t be, though, for the same reasons Prop 8’s defenders will be shocked when, if Walker is the rational and thinking man we presume him to be, he strikes down Prop 8.

What concluded Wednesday will determine but a chapter in America’s testy relationship with marriage equality, but it is an indicator for how all of this will play out. For, as this case advances and likely winds up before the Supreme Court’s nine justices, the next deciders of legalized discrimination will look upon Walker’s ruling, and how he came to his decision, and how Olson and Boies and Cooper influenced his decision.

And they must reach the same conclusion Judge Walker will. That each person in California is to enjoy the same right to lawfully wed as every other person. And so it shall soon be for every American.