On Prop 8, it's the evidence, stupid

by Lisa Bloom

CNN
August 18, 2010

There's a big difference between a political debate about same-sex marriage and the recent hard-fought court challenge to the California ban, Proposition 8.

In politics, anything goes: Vague, sinister comments about same-sex marriage threatening children or undermining the sanctity of heterosexual marriage were prevalent during the Prop 8 campaign. In court, same-sex marriage opponents needed solid evidence to back up these and other claims.

Despite "able and energetic counsel," they never produced it. That's why they lost, resoundingly, in the federal district court. And that lack of evidence should dog opponents up through the chain of appeals that is now beginning, because appellate courts are required to review only the evidence in the court record and to give great deference to Judge Vaughn Walker's findings of fact. He was there, after all, presiding over the trial, and the appellate judges weren't.

And what a lopsided trial he presided over. All the anti-same-sex marriage arguments imploded when subjected to the rules of evidence.

"You don't have to have evidence of this point," counsel responded to the judge's question asking what support existed for their claim that "responsible procreation is really at the heart of society's interest in regulating marriage."

No, sorry, at trial, you do have to have evidence. Of this point and every point. (And since -- as even Supreme Court Justice Antonin Scalia once pointed out in another case -- the sterile and elderly are allowed to marry, it can't be all about procreation.)

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