Prop 8 Defenders run into tough questions at BYU12 September 2010 | By admin in Uncategorized
On Sept. 9, Chuck Cooper, the lead attorney defending Prop 8 in the federal courts, spoke to about 200 students at the Brigham Young University Law School. I was there and I promised to live tweet the drama as it unfolded. Unfortunately, I didn’t think anyone was paying attention so I decided to participate in the discussion instead. I apologize to those who were waiting for updates. Please consider this post the next best thing.
WARNING: This topic is really tough to talk about, especially as a practicing Mormon attending a Church-owned school. I find that no matter how I discuss Prop 8, I end up offending somebody. To help mitigate that situation, I’m going to narrow the focus of this post. I’m only discussing the legal arguments that Mr. Cooper and his colleagues have presented. I’m not going to get into any faith-based arguments that many of my fellow Mormons consider paramount.
Chuck Cooper failed miserably in attempting to defend Prop 8 to possibly the friendliest crowd he will even encounter. The problem centers on the fact that he has absolutely no proof that state-recognized homosexual marriages would harm the institution of heterosexual marriage in any way whatsoever.
The opponents of Prop 8 argue that it was an unconstitutional law because it violates the 14th Amendment, which requires equal protection under the law. Mr. Cooper admits that Prop 8 creates an inequality under the law, or at least a separate-but-equal situation, but hangs his case on proving that there is a compelling societal interest in legally defining marriage as a union between one man and one woman. To prove this, he makes a strong appeal to tradition.
Marriage has always been defined as an opposite-sex union in the United States. Courts, judges, elected representatives, and the general public, predominately favor restraining marriage to only heterosexual couples, he argues.
His argument from tradition fails, however, for two reasons. First, traditions change. The fact that we’re having this debate right now underlines that fact. And that’s not necessarily a bad thing. For instance, consider the following truism: every judge and elected representative in this country refused to recognize interracial marriages until the first one did. Nobody would argue today that interracial marriages are antithetical to American traditions and are therefore invalid. The second reason his traditional argument fails is that there is a competing tradition in the United States: equality. Americans believe in equality and it is a tradition that has shaped our laws and society for the last two centuries. We believe in it so much that we’ve even enshrined it in our Constitution. When arguing which tradition is more important, the opponents of Prop 8 can cite the plain meaning of the text in the Constitution. Chuck Cooper, however, is left to make broad simplifications of the historical role of marriage in America. From a legal standpoint, the primacy of equality is obvious.
The only argument left for Mr. Cooper is to make a prediction about how state-recognized homosexual marriages would harm the admittedly vital institution of heterosexual marriage in America. And so, when he was done speaking and asked if anyone had any questions, I nearly jumped out of my seat. He recognized me and I asked something like this:
Mr. Cooper, you’ve made a strong case for the importance of marriage in our society. I applaud you for that, and I agree with you. However, what you’ve failed to do here and what you’ve failed to do in court is show how homosexual marriage would harm heterosexual marriage in any way. Can you explain that now?
Recognizing homosexual marriage would not harm heterosexual marriage at all, and that it was never a point he felt he needed to prove in court. This shocked a lot of people in the room because they had assumed that was the whole point of Prop 8 — defending traditional marriage.
He then went on a big, looping, lawyerly explanation that ended by an apparent contradiction. He argued that the role of marriage in society was primarily to benefit children, and not to recognize romantic and committed love between two adults. Redefining marriage outside the realm of procreation and child-rearing would weaken families in America, he said. While he didn’t state it, he was trying to have it both ways. Recognizing gay marriage would obviously not hurt traditional marriage in any way … but it would.
So, I asked a follow up question:
Many committed gay couples are currently participating in child-rearing. Whether you want to legally recognize it or not, it’s a fact. So recognizing homosexual marriage wouldn’t change the traditional purpose of marriage at all. In fact, your own witness testified in court that the children of gay couples would be seriously harmed because their parents lacked the societal recognition of marriage. How can you explain that?
He couldn’t. He got a bit nervous, fumbled a bit, and went on a seemingly endless rant about the societal dangers of single-parenthood. At one point, the person sitting next to me turned and whispered, “So he’s saying that committed gay parents are better than single parents?”
“That’s what he’s saying, and sociological studies have shown better outcomes as well,” I said.
“So, he doesn’t really have a case?” he said.
“No,” I said. “I don’t think he does at all.”
I could have kept pressing Mr. Cooper, but I didn’t want to hog all the time. Plus, I thought it was fairly obvious that he was completely unable to answer my questions.
The next question was about their ability to defend Prop 8 on appeal—nothing that interesting. The next question, however, was a doozy. Another BYU law student, whom I’ve never met, listed the advancements of reproductive technology in the last couple of decades. He then asked Mr. Cooper if these advances, which make it entirely possible for gay couples to fully participate in procreation and child-rearing, wouldn’t seriously hurt his arguments.
Mr. Cooper said that his arguments were still sound, but he couldn’t explain why.
A few more questions and Mr. Cooper stepped down from the lectern with what I must assume was a sense of relief. The whole experience left me with one question: If Chuck Cooper can’t defend Prop 8 in front of a group of BYU students, then how is he going to defend it in front of the Supreme Court?