Nobody told us we had to have facts.

The conflict over Proposition 8, the anti-marriage equality proposal in California continues in federal court. A legal battle is brewing over the discriminatory nature of Prop 8. The proponents of Prop 8 have their lawyer in court defending the measure.

That lawyer, Charles Cooper, claimed that marriage equality would harm children. This is the sort of claim that the anti-equality advocates have been pushing all along. But a court room is not the place for meaningless, political sound bites. And the judge in this case, Vaughn Walker, wasn't falling for a sound bite.

Because Cooper had claimed that marriage laws further procreation, and allowing gays to marry would somehow harm procreation, Walker asked: "What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?" That's a fairly, straight forward question and one that Cooper clearly should have anticipated since he claims are central to his argument.

But Cooper seemed shocked by the question. He stumbled for words saying: "My answer is, I don't know. I don't know." Well, if the lawyer defending Prop 8 doesn't know how gay marriage harms the "procreative" purpose of marriage, who does?

At this point Cooper started proposing a Right-wing version of the flawed "Precautionary Principle," that environmentalist love to push. Under the Precautionary Principle one should not take actions unless one can prove they won't lead to harm. Proving a negative is rather difficult. It is a policy meant to prevent change and it is inherently conservative. Cooper argued that it doesn't matter if there is evidence that gay marriage harms marriage at all because "There are things we can't know, that's my point."

Without evidence that something does harm others, then I say the Liberty Principle applies. People are free to do what they wish unless it can be proven that their actions violate the life, liberty or property of others. This is the opposite of the Precautionary Principle. I do find it interesting to see Cooper resorting to a version of it to protect the interests of his clients.
He told the judge: "But it is not self-evident that thre is no chance of any harm, and the people of California are entitled not to take the risk." So, he argues, that he doesn't have to prove harm from gay marriage, he only has to imagine there might be harm and that is sufficient to justify policies promoting legal inequality. People who wish to exercise their rights must, however, prove that in so doing there is no possibility whatsoever of other's being harmed. How would one do that? It's not possible.

One thing about this case, that interests me, is that the anti-equality crowd will have to present facts and they aren't used to doing that. They rely on fear and innuendo and outright falsehoods. And those don't go over well in court.

Photo: Mr. Cooper of the Prop 8 campaign. Shortly after the photo was taken the Prop 8 sign fell to the floor, sort of like his arguments.