The unusual exchange between U.S. District Chief Judge Vaughn Walker and Charles Cooper, a lawyer for the group that sponsored Proposition 8, came during a hearing on a lawsuit challenging the measure as discriminatory under the U.S. Constitution.
Cooper had asked Walker to throw out the suit or make it more difficult for those civil rights claims to prevail.
The judge not only refused but signaled that when the case goes to trial in January, he expects Cooper and his legal team to present evidence showing that male-female marriages would be undermined if same-sex marriages were legal.
The question is relevant to the assertion that Proposition 8 is constitutionally valid because it furthers the states goal of fostering "naturally procreative relationships," Walker explained.
"What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?" Walker asked.
"My answer is, I don't know. I don't know," Cooper answered.
Moment later, after assuring the judge his response did not mean Proposition 8 was doomed to be struck down, Cooper tried to clarify his position. The relevant question was not whether there is proof that same-sex unions jeopardize marriages between men and women, but whether "the state is entitled, when dealing with radical proposals to make changes to bedrock institutions such as this . . . to take a wait and see attitude," he said.
"There are things we can't know, that's my point," Cooper said. "The people of California are entitled to step back and let the experiment unfold in Massachusetts and other places, to see whether our concerns about the health of marital unions have either been confirmed or perhaps they have been completely assuaged."
Walker pressed on, asking again for specific "adverse consequences" that could follow expanding marriage to include same-sex couples. Cooper cited a study from the Netherlands, where gay marriage is legal, showing that straight couples were increasingly opting to become domestic partners instead of getting married.
"Has that been harmful to children in the Netherlands? What is the adverse effect?" Walker asked.
'Proof of no harm?' Cooper said he did not have the facts at hand.
"But it is not self-evident that there is no chance of any harm, and the people of California are entitled not to take the risk," he said.
"Since when do Constitutional rights rest on the proof of no harm?" Walker parried, adding the First Amendment right to free speech protects activities that many find offensive, "but we tolerate those in a free society."
Walker made clear that he wants to examine other issues that are part of the political rhetoric surrounding same-sex marriage but rarely surface in courtrooms. Among the questions he plans to entertain at the trial are whether sexual orientation is a fixed or immutable characteristic, whether gays are a politically powerful group, and if same-sex marriage bans such as Proposition 8 were motivated by anti-gay bias. . .
Attorney General Jerry Brown, who was named as a defendant, has taken the rare step of agreeing with the plaintiffs instead of arguing to uphold the voter-approved law.
In allowing the case to move forward, Walker said significant questions remain about whether the California measure, which was approved by 52 percent of voters in November, unlawfully violates the rights of gays and lesbians to equality and due process guaranteed under the U.S. Constitution. The measure overturned a state Supreme Court ruling earlier in the year that legalized same-sex marriages.