What happened to the defense?

Writing about the Prop8 Trial, Jonathan Capehart in the WaPo:

In the case of Perry v. Schwarzenegger, the plaintiffs went before Judge Vaughn Walker with the legal equivalent of the New York Yankees. The defense showed up with the Bad News Bears. The pro-Prop 8 defense single-handedly undermined just about every argument that has ever been used to justify denying gay men and lesbians entry into the institution of marriage. Thus, Walker handed down a sweeping victory for marriage equality.....

Look. I’m happy with the outcome of the case and with Judge Walker’s ruling. The consequences of it will make themselves known soon enough. But if I were the conservatives I would troop back into court -- and sue the pro-Prop 8 attorneys for malpractice.

And from PoliticsDaily:

Take, for example, the bizarre courtroom display ... by Charles Cooper, the lead attorney for defenders of Prop 8. His side presented only two witnesses during the long course of the trial, neither of whom was particularly compelling. ... When you have bad facts, you argue the law. When you've presented little evidence, or the evidence you've presented is not so hot, you say that evidence doesn't matter. That's partly why Cooper told Judge Walker during closing arguments, "Your honor, you don't have to have evidence for this."

... Later, after Cooper admitted he didn't know what effect the banning of same-sex marriage would have, Judge Walker said: "Is that enough to impose restrictions on some citizens that other citizens don't suffer?" The exchange is telling because the "effect" of Prop 8 is a factor judges must weigh in the great constitutional balancing this case requires.

Being no potted plant, Ted Olson for the plaintiffs jumped all over Cooper's remarks. Olson said: "Mr. Cooper: 'We don't know. We don't have to prove anything. We don't have any evidence.' 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.' " This is a statement that every appellate judge who looks at Judge Walker's ruling will also ponder. ...

The sort of minimalist strategy of litigation by defenders of Prop 8 is either cocky, cynical or suicide. It's cocky if Cooper and Company believe the Constitution is so clearly against same-sex marriage that no set of facts would matter. It's cynical if Cooper believes that Judge Walker's factual findings will be irrelevant to the analyses that will spring up at the 9th Circuit. And it's close to suicide if Prop 8's defenders really believe that Supreme Court Justice Anthony Kennedy, whose swing vote will decide this whole thing a year or two from now, will be comfortable endorsing a ban on same-sex marriage based upon such little courtroom evidence supporting it. There are a lot of "ifs" in a tactic like this.

...The evidentiary record is massively skewed in favor of the plaintiffs and against the defendants. At closing, Olson told Judge Walker: "Heterosexual people are not going to stop getting married or stop having children or abandon their marriage because the next-door neighbor has a same-sex marriage." In the meantime, Massachusetts, the first state to recognize same-sex marriage, has the lowest divorce rate in the nation.