Lead Defense Counsel Statement on August 4 Perry v. Schwarzenegger Decision

by Charles J. Cooper, lead counsel for the proponents of Proposition 8.

Today, a single federal judge has negated the will of the people of California. The central premise of the court’s ruling is that it is irrational for the citizenry to decide to retain the traditional definition of marriage. The court holds that the ubiquitous definition of marriage as the union of a man and a woman is a historical curiosity that serves no purpose whatsoever, but rather is based solely on anti-gay biases. Indeed, the court went so far as to brand as “irrational” all supporters of traditional marriage, which is the vast majority of all people, in American and throughout the world. As New York’s high court recently recognized, until very recently it “was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.” [Hernandez v. Robles, 855 N.E.2d at 8 (N.Y. 2006)]. The historical record reveals that the traditional definition of marriage is grounded in society’s interest in channeling potentially procreative sexual relationships between men and women into enduring, stable family units to increase the likelihood that children will be raised by the man and woman whose union brought them into the world.

Judge Walker’s ruling sweeps aside this historical understanding of marriage. In its place, he has announced that "Marriage is the state recognition of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to joint in an economic partnership and support one another and any dependants." His opinion thus treats children as a mere afterthought when it comes to marriage. The Court’s disregard for the historical purposes of marriage would require California to embark on a novel experiment with the fundamental institution of marriage. In doing so, it threatens to harm the vital interests historically served by marriage. The United States Constitution provides no warrant for this result, as demonstrated by the all-but-unanimous judgment of other federal courts that have addressed the issue.

In addition to dismissing the traditional definition of marriage, the judge incredibly found that children don’t need fathers. Or mothers. To state this proposition is to refute it. And the court also found that there is no benefit whatsoever for a child to be raised by its own biological parents. Fortunately, the Constitution does not require the people to substitute the social science musings of gay rights activists for common sense. This decision will not stand.

Fortunately, the case is not over. Judge Walker acknowledged from the outset that “this case is only touching down in this Court, … it will have a life after this Court, and what happens here, in many ways, is only a prelude to what is going to happen later.” July 2, 2009 Tr. of Hr’g at 12. About that he was right. We have already filed a notice of appeal and look forward to the next stage of this litigation.



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