The opening remarks of Attorney Charles Cooper, defending Proposition 8 in front of the federal court in San Francisco, do not augur well for his case. He was unable to present a compelling argument. His wooly assertions were repeatedly interrupted by Chief Judge Vaughn Walker. A powerful word jumps out of Walker’s questions: ‘evidence’.
COOPER: The purpose of the institution of marriage, the central purpose, is to promote procreation and to channel narrowly procreative sexual activity between men and women into stable enduring unions for the purpose –
THE COURT: Is that the only purpose of marriage?
The court could also have expressed skepticism about this teleological argument. The *purpose* of marriage? According to who? Who gets to decide? How would you *demonstrate* that this is the purpose – and what obligates us to care?
COOPER: Your Honor, it is the central and, we would submit, defining purpose of marriage. It is the basis on which and the reason on which marriage as an institution has been universal across societies and cultures throughout history… . This debate goes to the definition of marriage and what its purpose is; whether it’s going to be effectively deinstitutionalized, the word used by the scholars –
THE COURT: I was going to ask, what’s the evidence? You used that in your proposed findings, that extending marriage to same-sex couples would, and I quote, radically alter the institution of marriage. Okay. What’s the evidence going to show that would support that finding?
COOPER: … A broad consensus of leading scholars suggests that across history and cultures, marriage is fundamentally a pro-child social institution anchored in socially-approved sexual intercourse between a man and a woman. And the core need that marriage … aims to meet is the child’s need to be emotionally, morally, practically, and legally affiliated with the woman and the man whose sexual union brought the child into the world. …
Of course this does not address the Court’s question. The question is: “What is the evidence that extending marriage to same-sex couples would radically alter the institution of marriage?” Cooper says  everyone has always known that marriage is supposed to be between a man and a woman, and  this is because marriage is supposed to keep kids together with their biological parents. Point 1 is the teleological argument, which is irrelevant to the case. Point 2 is also irrelevant, because allowing same-sex couples to marry will in no way impede heterosexual couples from having children and taking care of them. Judge Walker asks Cooper about this. His answer is extremely vague.
THE COURT: How does permitting same-sex couples to marry in any way diminish the procreative aspect or function of marriage or denigrate the institution of marriage for heterosexuals?
COOPER: Your Honor, because it will change the institution.
Walker insists, with that beautiful word.
THE COURT: What’s the evidence going to show in that regard?
Cooper responds with more vagueness, repeating the words “the evidence is going to show” for rhetorical purposes only, since he isn’t really talking about evidence. He tries to go back to teleology – “the purpose of” – and the judge stops him again.
COOPER: The evidence is going to show, again, that the debate is whether or not this institution will remain a pro-child institution … or whether the gradual transformation of marriage from a pro-child societal institution into a private relationship designed simply to provide adult couples with what the plaintiffs say is personal fulfillment. The question is, your Honor, is this institution designed for these pro-child reasons, or is it to produce companionship and personal fulfillment and expression of love? Are those purposes themselves important enough to run risks to the accomplishment of the pro-child purposes? The purpose of –
THE COURT: What are those risks?
COOPER: The risks are, your Honor, that the nature of the institution will be altered; that it will be deinstitutionalized; that the norms, the laws, the social conventions that have given marriage its structure and that … brought marriage into being, again, across cultures, across societies and throughout history, to ensure, for the sake of raising children, that the people that brought that child into the world remain together to raise the child. And if the institution is deinstitutionalized … it will likely lead to very real social harms … .
Frightening words, but Judge Walker has another good question.
THE COURT: Is there any evidence from the countries and states that have permitted same-sex couples to marry that marriage has been deinstitutionalized or has led to lower marriage rates or higher rates of divorce or greater incidents of non-marital cohabitation, these other matters that you’ve described?
COOPER: Your Honor, I believe the evidence will show that, in the Netherlands, marital rates have declined. Rates with respect to the cohabitation of couples with children have risen. These are phenomenon, your Honor, that even with respect to the foreign countries – and Netherlands was the first country, so I think the evidence with respect to it is – has had the longest period to develop. … But my point also, your Honor, is that with respect even to the foreign countries, where there is a greater body of experience or at least a longer period of experience, confident and reliable judgments simply cannot be made. And the institution of marriage is too vital to ask the people of California or any other state to proceed without … having been able to determine for themselves whether or not it, indeed, represents no threat to any of the social interests that they believe are important … .
In other words, Mr. Cooper, “There is evidence, except that there really isn’t, and besides, we can’t take that chance?” Is that what you’re saying?
These are the very important opening statements of a very important federal trial? It gives one hope.