Is That All You Got? How the proponents of a gay marriage ban just ran out of arguments.

Dahlia Lithwick | Slate | February 9, 2012 

One of the most remarked-upon aspects of the first round of Prop 8 litigation, that concluded this week with a 2-1 defeat for the initiative at the 9th Circuit Court of Appeals, was the weakness of the case against gay marriage. As Andrew Cohen explained at the time, at every turn Judge Vaughn Walker, who presided over the trial, expressed frustration at the fact that the opponents of gay marriage either had no case or couldn’t be bothered to make one. Arguing for the gay marriage ban, seasoned attorney Charles Cooper called only two witnesses (the plaintiffs called 17), one of whom was not deemed qualified to testify as an expert. As Cooper finally explained in his closing argument, "Your honor, you don't have to have evidence for this. … You only need to go back to your chambers and pull down any dictionary or book that defines marriage," Cooper told the judge. "You won't find it had anything to do with homosexuality."

This defense satisfied almost no one. Ted Olson, the plaintiff’s attorney, was absolutely flummoxed by Cooper’s claim that he had no burden to do anything beside assert the immutability of traditional marriage. In his closing argument, a perplexed Olson replied, “You can't take away the rights of tens of thousands of persons and come in here and say 'I don't know' and 'I don't have to prove anything.' ” An equally maddened Judge Walker agreed, railing in his opinion about how the Prop 8 proponents had failed to produce promised evidence and testimony. Even conservative groups wrung their hands, questioning whether Prop 8 had been “adequately defended” at the hearing. Then again, perhaps punting on Prop 8 was a strategic decision. Doing so allowed the supporters of Prop 8 to argue that the fix was in. Judge Walker, who is gay, and the Hollywood appeals court would never have given them a fair shake in the first place.

Or, perhaps, there was another explanation. Perhaps, as many speculated at the time, it reflected the deeper reality that there was no factual or empirical case to be made: The evidence, the data, and the experts overwhelming agree that gay marriage does not harm children. And that leaves opponents of gay marriage to argue a tautology: Gay marriage is wrong because it’s wrong.

Gay marriage debate has a long way to go

Frank Brennan | Eureka St | 6 December 2011

On the weekend the ALP party conference voted to amend the party platform on same sex marriage. The platform now states: 'Labor will amend the Marriage Act to ensure equal access to marriage under statute for all adult couples irrespective of sex who have a mutual commitment to a shared life.'

Churches and religious organisations will retain the freedom to perform marriage ceremonies only for a man and a woman eligible for marriage under the rules of the church or organisation.

The conference voted by 208 to 184 to allow Labor MPs a conscience vote on the issue. Tony Abbott continues to insist that Liberal MPs will not be granted a conscience vote. This will change. If it doesn't, several Liberals, including Malcolm Turnbull, will cross the floor. It could even become a leadership issue in the party.

Within the life of the present parliament, our elected leaders will probably be voting on the issue, and in all likelihood the members of all major parties will have a conscience vote.

How should the conscientious Catholic member of parliament vote? If I were a member of parliament, I would support a law for the recognition of civil unions similar to the present United Kingdom law, and I would vote against any bill extending the definition of marriage to include the union of two men or two women.


I would do so because I think the State should not discriminate against couples who have a mutual commitment to a shared life (whatever their sexual orientation), while affirming that the bearing and nurturing of the children of the union is a constitutive good of marriage (even though not all marriages produce children).