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Judge in Same-Sex Marriage Case Asks Why Pro-Prop 8 Side Called Only One Witness

As closing arguments ended Wednesday in the Northern California District Court trial on the constitutionality of Proposition 8, the state’s voter-approved ban of same-sex marriage — a case that’s likely headed to the Supreme Court — the judge in the case wanted to know why defenders of the initiative put up only one witness during the first phase of the trial, reports the San Jose Mercury News.

By comparison, the plaintiffs in the case — those who want Proposition 8 ruled unconstitutional — brought forward two weeks of testimony. According to the Los Angeles Times, opponents of Proposition 8 called 16 witnesses, with emotional testimony from the four plaintiffs and evidence from eight experts and “122 years of Supreme Court decisions.”

According to the San Jose Mercury News, Proposition 8 lead attorney Charles Cooper and other defenders of the initiative have relied on an argument that marriage should be confined to opposite-sex couples because the purpose of marriage is procreation. But during the first phase Cooper called on one witness “whom the judge is considering disregarding altogether because his credentials as an expert are in question,” the Mercury News reported.

And that one witness did not testify on the procreation argument, the paper added.

That gave Judge Vaughn Walker pause on Wednesday.

“What testimony in this case supports the proposition?” Walker asked.

“You don’t have to have evidence of this,” Cooper replied.

The judge then asked Cooper why it’s OK for the state to allow infertile couples to marry, but not gays and lesbians, according to the Mercury News.

Cooper answered that it’s not the same, saying that even infertile straight couples “further the traditions of marriage,” the paper reported.

Cooper’s proposition — that the purpose of marriage is for procreation — and his decision not to give any expert testimony to defend the argument brought a vigorous response from former Republican U.S. Attorney Theodore Olson, who is serving as the attorney for the anti-Prop 8 side.

“You have to have a reason,” Olson said of denying same-sex couples marriage rights. “I don’t know, and I don’t have any evidence, doesn’t cut it.”

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