Leave a Comment Kathleen
No Rational Basis
June 16, 2010
by Brian Leubitz
I’ve been trying to keep abreast of the closing arguments, hitting refresh on several different websites. Through all of this, I have tried to at least, on occasion, take a step back to be as objective as possible. I was always something of a skeptic. After all, much of our judiciary has been appointed by Republicans. It just seemed like the logical conclusion of all this was some sort of temporary victory for Maggie Gallagher’s team. However, all that being said, I am now coming to the conclusion that our odds really aren’t that bad. And in many ways, the real legal reach would be to not overturn Prop 8.
That isn’t to say that Prop 8 will be overturned by the Supreme Court. The Roberts court has been known to make a few reaches of legal logic in the past, and a decision favoring Cooper’s case would not really shock anybody. But, the case that the legal team, headed by Olson and Boies, has built here is really quite solid.
As Rick noted, Judge Walker spent much of the day trying to get a legally valid point to emerge from Cooper’s mouth. But, when it comes down to it, this is the heart of their case:
The legislative process involves setting priorities, making difficult decisions, making imperfect decisions, and approaching problems incrementally. That process is what is at work in this state.
And it’s at work elsewhere in this country. And as the court…said, there is a debate about the morals, the practicalities, and the wisdom of this issue that really goes to the nature of our culture. And the constitution should allow that debate to go forward among the people.
In other words, what Cooper is arguing here is that despite how wrong Prop 8 might be, it should still stand. He has essentially given up on arguing that Prop 8 is actually accomplishing some valid purpose. Instead, he is relying on the “rational basis” test to argue that the state legislative authority allows Prop 8 as some sort of valid exercise because the state might have some sort of “channeling” power towards marriage. (Who exactly they are channeling remains an open question. Because, I’m pretty sure I will not be channeled anywhere.)
He doesn’t bother to claim that this is a good idea, or a just idea. Rather, it simply a “rational basis” to legislate from.
Trouble is that, quite simply, it is not a rational basis. I don’t think I can say it any better than Ted Olson:
So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation? They are not a threat to us. What is one single bit of evidence if you accept the channeling function if you accept the right that the State of California has the right to do that and I do not this is an individual constitutional right and every Supreme Court decision says it’s the right of the person. It’s not the right of the State of California to channel us into certain activities or in a certain way.
There’s a long way to go folks, but today was a good day. Even if we lose at the Supreme Court, this case has been a valuable exercise for the nation.
Filed under: Uncategorized
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91 Comments Leave a Comment
1.
K!r!lleXXI | June 16, 2010 at 9:17 am
Subscribing
2.
Kathleen | June 16, 2010 at 9:23 am
This is how Olson ended oral arguments today:
“… A group of people who have been victims of discrimination, who are a discreet minority, who have identifiable characteristics, their sexual orientation. And we want to foreclose them from participating in the most fundamental relationship in life.
… those are basic facts you are discriminating against a group of people; you are causing them harm; you are excluding them from an important part of life; and you have to have a good reason for that. And I submit at the end of the day ‘I don’t know’ and ‘I don’t have to put any evidence’ with all due respect to Mr. Cooper, it does not cut it. It does not cut it when you are taking away the basic human rights and human decency from a large group of individuals and you don’t know why they are a threat to your particular institution.
The combination as I said before of those 14 Supreme Court decisions that tell us how valuable marriage is. The Romer case that says you can’t take away rights and make them unconstitutionally impossible to recover except by amending your state constitution. And the Lawrence case that says that the sexual orientation of individuals and their private conduct is a protected right. You cannot then in the face of all those decisions by the United States Supreme Court say to these individuals we are going to take away the constitutional right to liberty, privacy, association and sexual intimacy that we tell you that you have and then we will now use that as a basis for not allowing you the freedom to marry.
That is not acceptable. It’s not acceptable under our constitution. And Mr. Blankenhorn is absolutely right the day that we end that we will be more American.”
IMO, sums it up nicely.
3.
Straight Ally #3008 | June 16, 2010 at 9:24 am
I've been paying only cursory attention today, but I hope that the point was also stressed that this is about equal protection under the law. Heterosexual couples can obtain civil recognition for their marriages, homosexual couples – even if a church is willing to sanctify it, ironically – can not, and they can't "choose" to change their orientation to get around it.
4.
Moriah | June 16, 2010 at 9:34 am
Do we know if a date has been set to announce the verdict?
5.
dotdotdot | June 16, 2010 at 9:36 am
Well, let's hope that if Prop 8 is not overturned, we can:
- reinstate slavery
- abolish the right for women to vote
- eliminate interracial marriage
- ban divorce
- etc
- etc
- etc
6.
Brian | June 16, 2010 at 9:37 am
Random thought…
I know that the closing arguments (and maybe the trial?) were recorded for other purposes, though they were explicitly barred from being televised.
Are those recordings available to use through the Freedom of Information Act / Electronic Freedom of Information Act?
If not.. can someone explain why not?
7.
cc | June 16, 2010 at 9:39 am
Anyone know who's broadcasting the press confrence and where to find it web/ tv?
8.
Kathleen | June 16, 2010 at 9:48 am
@chet. Thanks for this! I'm guessing that was Maggie Gallagher? It makes perfect sense that they'd write their press release ahead of time. The information they're releasing seems to be describing some alternate universe in which you don't have to present evidence in a trial. But it's interesting to learn that, as I've always suspected, they really don't believe their own hype. It's all about continuing to fan the flames of fear to keep the money flowing in their direction.
9.
bJason | June 16, 2010 at 9:54 am
His close brought me to tears!!
10.
RebeccaRGB | June 16, 2010 at 9:57 am
Not at the 9th district level, but maybe at the Supreme Court level.
11.
bJason | June 16, 2010 at 9:58 am
thanks for this. These intricacies of behavior and interplay are nuances the rest of us miss by not seeing it live.
12.
Kathleen | June 16, 2010 at 9:58 am
D-Is mention Maynard v Hill in their written answers to Walker. http://supreme.justia.com/us/125/190/case.html
Interestingly, in the D-Is doc 687, they repeatedly mis-cite the case as being from 1988, when it's from 1888.
13.
Seraphiel | June 16, 2010 at 10:03 am
If people like Maggie Gallagher had their way many decades ago, Maggie Gallagher wouldn't have the right to vote today.
14.
bJason | June 16, 2010 at 10:15 am
This has been great. I would really love to actually, physically wrap my arms around each of you here. What a panoply of emotions!
I would never, in my wildest and most frightening dreams, have imagined that I would sit alone in front of a computer and watch complete strangers debate MY validity and that of my future. Absolutely gut-wrenching in ways that cannot be understood by those who don't share this fate.
You guys give me strength and hope. Thank you all!!
15.
Kathleen | June 16, 2010 at 10:17 am
Anne, if Walker rules for plaintiffs, his decision could be a sweeping ruling that addresses the broad question of validity of bans on ss marriages, or he could rule in a way that depends just on the facts that are unique to California.
if Walker gives a broad ruling that has implications beyond the state of California (which is what plaintiffs are arguing) and if that decision is upheld by the 9th Circuit Court of Appeals, then yes, the decision becomes binding precedent for all the states within the 9th's jurisdiction. But realistically, it's not likely to mean ss couples being able to get married all over the West.
First, there's a good chance that the Yes-on-8 people will ask for a stay of the decision, pending appeal. If the Court grants a stay, nothing happens until the higher court rules. Second, unless another state's legislature (e.g., Arizona) decides to voluntarily change its laws to coincide with the Court's decision, it will take someone in that other state challenging the law and using the decision as precedent to force the change.
And, yes, again, if Walker's decision is a broad ruling that strikes down all bans on ss marriage, and that ruling is upheld by the US Supreme Court, it would mean all such bans, anywhere in the country, would be unconstitutional.
16.
Brian | June 16, 2010 at 10:23 am
Just seems that if someone was so inclined and could legally get copies. They could also put together a 'highlights' reel.
…and make lots and lots copies. Readily available, broadly distributed copies…
17.
chet | June 16, 2010 at 10:37 am
Carla Hass or something like that was her gmail address.
During the trial, the court was mostly filled with supporters of the plaintiffs. Today there were a lot of Prop 8 supporters, although I only got into the courtroom at the last minute because a few of their reserved seat-fillers didn't show up. It was actually kinda creepy to realize I was sitting among these bigots.
18.
Ronnie | June 16, 2010 at 10:55 am
I love it…I love Hype…..<3…Ronnie
19.
Santa Barbara Mom | June 16, 2010 at 10:55 am
I wonder what Cooper's opinion would be on all the single women adopting children, ie Sheryl Crow, etc
20.
Ken | June 16, 2010 at 12:09 pm
having read through all the trial posts and now the closing arguments, I predict what will happen is the following:
Judge Walker will rule in favor of the plaintiffs (given how poorly the defense presented its case it is inconceivable he could rule for the defense), however, he will tailor his ruling to only overturn the CA Constitutional amendment and not give a broader ruling overturning DOMA or all state restrictions on same-sex marriage. However, that his ruling will be worded that it could be used to try to overturn DOMA.
the defense will appeal claiming that the threat of having the case televised scared off many of their expert witnesses and that is why they had such a poor case.
Either the Appellate court or the Supreme Court will agree that the threat of TV hurt the defense and send the case back down for a new trial.
I also suspect that Walker will allow gay marriages to be re-instated immediately (and not be stayed during the appeal process) because unlike the other states which had gay marriage cases, CA has already allowed gay couples to marry. So they already have a large population of married gay couples, and increasing that number can't really cause any harm since even if he is over-ruled CA just goes back to have the same 5 classes of marriage Ted Owens described in his closing arguments.
However, I'm very curious to see if Walker rules that gays are a suspect (or quasi-suspect) class or not. the Supreme Court has never made a ruling on that issue even though they've had several opportunities. Personally I think they've been avoiding making such a ruling, so I'm curious to see if Walker will try to force the issue.
21.
Kathleen | June 16, 2010 at 12:10 pm
Yes, Jason. Me, too.
22.
Kathleen | June 16, 2010 at 1:00 pm
Ditto.
23.
Felyx | June 16, 2010 at 1:23 pm
I have to say I am inspired that people are understanding why our chances of winning are enormous…after all, our side has been preparing this case for years…even possibly decades! While the Anita Bryants of the world were spouting crap we were doing our homework, doing the research, finding the best and the brightest, raising the support system, building the community. We did our work and now, years and decades later, when it counts what did the other side have to show for all their cheerleading and rabble-rousing?….NOTHING!!!!
While the traditional religious moralists were off hating and reveling in their sins of dysfunction we were living and growing more healthy and strong. We have been doing the work of proving ourselves for decades while the religious groups have been infighting over God's perceived preferences. They did not do their homework, they did not build up the community or society, they did not take care of their (LGBT) children; they are stuck in archaic 'Failin' Palin' loop of irreverent illogic.
Our voices have become so strong with actual truth and legitimate righteousness that it is no wonder Mr. Cooper lost his voice! The outcry will be foul and horrific to hear, like tens of thousands of Demons being returned back to the pits of Hell, but soon they will all lose their collective voice…the voice of hatred and sinful moralizing! It seems their God of wrath does not favor them and he is coming to collect his debt.
So get ready for the weddings, prepare for the feast! It is soon coming and I for one am ready to celebrate…no I don't think it is too soon…we did our homework…we came prepared…I dare the Supreme Court or anyone to say no to us now!!!! I dare them!!! I dare them!!! I DARE THEM!!!!
Felyx
PS: @ Mr. Cooper- Sorry to hear you forgot your own lube…actually, no I'm not! HAAAAAAAAAAAAA!!!!!!!
24.
Felyx | June 16, 2010 at 1:45 pm
I would agree with the exception of the 'threat of TV' deal. Next time the televising will have no newness or technicalities to stay it. There is no point in asking for a retrial based on this if it is clear that the new trial can (and in all probability will) be broadcast.
I would tend to favor that the SC would desire to take the case sooner than later and to make a decisive ruling in favor of the plaintiffs….no point in forestalling the inevitable.
My Not So Humbled Opinion! Felyx
25.
Richard A. Walter (s | June 16, 2010 at 1:47 pm
And I tend to agree with you Felyx. Hopefully the next time we are up your way, we will get a chance to stop by and say hello. In the meantime, I believe you have our number so feel free to call.
26.
Scottie | June 16, 2010 at 4:20 pm
Cooper’s argument is something Scalia has been known to say: I might not like this law but that doesn’t make it unconstitutional. There is no “bad idea” clause, etc. etc.
I just hope most of the SCOTUS justices when it gets there don’t buy the argument.
Personally I’m hoping Judge Walker will suggest that strict scrutiny be applied so that when it gets there, even more discriminatory anti-gay laws may be questioned.
27.
Richard A. Walter (soon to be Walter-Jernigan) | June 16, 2010 at 4:31 pm
Yes, and regardless of the outcome here, when BZ and I begin to gather the forces in North Carolina for the battle here, we will have this to draw on. In fact, we will probably get Olson and Boies for North Carolina, just like Rob and Michelle did for California.
28.
chet | June 16, 2010 at 4:35 pm
I was in the court today. I was encouraged by the number of times Walker reacted to Cooper’s ramblings with head tilts, raised eyebrows and other gestures of confusion and even near-condescension (in his own polite way).
29.
Sagesse | June 16, 2010 at 4:38 pm
I’ve been reading the blogs and have not had time to follow the comments, so I know this has been covered, but….
I can’t believe he brought up the Florida adoption case.
30.
Kathleen | June 16, 2010 at 4:39 pm
Sorry, I don’t have an answer to your question, but yes, the entire trial was recorded.
31.
Kathleen | June 16, 2010 at 4:40 pm
I thought the same — wrong for so many reasons.
32.
chet | June 16, 2010 at 4:43 pm
Olson was awesome. Cooper rambling and unfocused, and kept returning to his “because it just is” argument.
I was sitting behind the woman who was tweeting for protectmarriage. In the middle of Cooper’s rambling, she actually typed, without hitting enter:
Cooper says stammer stammer stammer
and showed it to her seatmate for a laugh. About 10 minutes later, she whispered to him “He’s so bad.” !!!
She was also writing the ProtectMarriage press release, which she finished almost 2 hours before court was adjourned.
33.
Anne | June 16, 2010 at 4:49 pm
If No on 8 wins – which seems like it must – will the Yes on 8 side actually appeal? If Walker rules for us, and they appeal and lose at the federal district level -then instead of just California, the whole 9th district has legal same sex marriages, right? and if they then take it to the Supreme Court and they rule for us – that makes it legal for the country, right? Can they risk that with their feeble arguments?
Anne
34.
Ann S. | June 16, 2010 at 4:52 pm
I’ve seen references to a “Maynard” case — anyone know what case that refers to?
35.
Edward Gould | June 16, 2010 at 4:59 pm
I am still unsatisfied as to why the trial was not broadcast.
Is there someway we can help the people who have the transcripts to get them digitized so they can be seen(or heard) by everyone who wants to see them?
Possibly also to make it possible so that in the future all court hearings be made either visually and audibly seen?
I can see cases (like Rape etc) that the proceedings are kept private but other cases such as this should be available in real time or on a delayed basis.
36.
Kathleen | June 16, 2010 at 5:01 pm
Confused by what you mean about digitizing transcripts. Transcripts of the trial are available here:
http://www.equalrightsfoundation.org/our-work/hearing-transcripts/
Today’s transcript will be there as soon as it’s available.
37.
Kathleen | June 16, 2010 at 5:03 pm
Also, there are the reenactments at:
http://www.marriagetrial.com/
38.
Ronnie | June 16, 2010 at 5:15 pm
sunscribing…today was awesome…<3…Ronnie
39.
Michael | June 16, 2010 at 5:49 pm
Unfortunately FOIA is explicitly scoped to the executive branch only:
“The FOIA applies to Executive Branch departments, agencies, and offices; federal regulatory agencies; and federal corporations. Congress, the federal courts, and parts of the Executive Office of the President that function solely to advise and assist the President, are NOT subject to the FOIA.”
Maybe there is something else like this we can use, though?
40.
Ann S. | June 16, 2010 at 6:02 pm
Thank you Kathleen. There’s just a wee bit of difference between 1988 and 1888.
41.
John | June 16, 2010 at 6:19 pm
I'm not sure that answers Anne's question, which I think is an interesting one. She asked if there might be a possiblity that the defenders will not appeal, considering the weakness of their case and the potential consequences of losing on appeal. Won't they be better of with only a loss at the lower level, that might only affect California (because it sets no precedent for other states in the west)?
Considering how NOM and defenders spin this trial, it wouldn't surprise me they cry victim and claim that The Activist Judiciary per se is a totally unreliable venue for righteous claims of Moral Order and Consititutional Godgiven Rule or something like that. They might argue to take up the fight after they filled up the courts with godfearing christian judges. There is already an initiative going trying to replace judges that they deem activist and unchristian.
42.
JonT | June 16, 2010 at 6:33 pm
subscribe
43.
Kathleen | June 16, 2010 at 7:08 pm
You're right John. I was only answering her legal questions, i.e., what would be the consequences of a win/loss at various levels.
Never intended to tackle the questions as to strategic decision Proponents might make. Should have made that clear.
But, my personal opinion, for what it's worth, is that regardless of how they started out in this case, fairly early on they came to the conclusion they were going to lose in district court and likely 9th Circuit. They're counting on Supreme Court as their only likely chance of winning.
44.
John | June 16, 2010 at 8:23 pm
Thanks Kathleen, for your opinion. I know you can only speculate about their strategy, but it puts things in perspective for me. I am following this trial from Europe through the internet, so I haven't got a good picture of the look and feel on the ground.
45.
Kathleen | June 16, 2010 at 8:27 pm
I'm in Los Angeles area. Other than the scant local media coverage, I'm not sure I'm any better connected to events here than you are there.
Where in Europe are you?
BTW, the transcript is now available at AFER site: http://www.equalrightsfoundation.org/legal-filing…
46.
Roger | June 16, 2010 at 8:34 pm
A question (Kathleen?) Since the suit is officially against the State of California (in the person of the Governor et al.) and is thus Perry et al versus Schwarzenegger et al– and the State declined to defend it, which is how Protect Marriage got into the act — would Protect Marriage and their allies be entitled to appeal on California's behalf? Or would they have to apply for standing, as they did before?
47.
Roger | June 16, 2010 at 8:36 pm
Oops, I just noticed that for some reason my registration has misspelled my website. Hopefully this will correct it.
48.
Kathleen | June 16, 2010 at 8:51 pm
Good question. I'm weak in area of procedure, so can't answer with authority. However, I'm pretty sure that once they've been granted status of defendant-intervenor, they remain so throughout the life of the case, right through any appeals. I also think that if there were any question of whether they would have standing to appeal, we would have heard something about that in one of the numerous press conferences, interviews, etc., that both sides have had over the past year.
Are you in Australia? We're developing a tally of all the locations that were represented on the site during today's proceedings.
49.
John | June 16, 2010 at 10:28 pm
I'm from the Netherlands, a dutch native.
I just found out that the distance between Los Angeles and San Francisco is roughly the same distance as between Amsterdam and Berlin. And I feel more familiar with what's happening right now in San Franciso than in Berlin, although the distance San Franciso-Amsterdam is about 15 times the distance Amst-Berlin.
50.
Kathleen | June 16, 2010 at 10:37 pm
@ John, I understand. Today it felt like I was in the same room with all the people here at this site. I could feel the excitement and emotion, even though I was experiencing it by myself in my home.
I'll add the Netherlands to our list of countries represented here. A couple of us are making a tally.
51.
Anne | June 16, 2010 at 10:53 pm
Thanks, all, for your comments, especially Kathleen. Will be interesting to see how it all plays out!
Anne
52.
Anne | June 16, 2010 at 10:55 pm
I'm in Mariposa, CA
53.
ken | June 16, 2010 at 11:57 pm
Originally, Walker was going to have the trial televised, but the Appeals (and Supreme Court as I recall) over-ruled him. Any new trial will not be broadcast. And that is why the defense will probably use this argument, because the higher courts already agreed with them that televising the trial could unduly hurt their case. Now, I don't think the threat of being televised is what scared away the defenses' experts. I think that after the deposition phase they realized they were going to be eviscerated in open court. However, what I think is irrelevant, it is what the defense can successfully argue on appeal that matters.
Further, I do not believe the Supreme Court is in any rush to make a decision on gay marriage. I'm sure the Justices realize eventually they will have to make a decision, but I think they will want to put it off for as long as they can. And sending this case back down for a new trial would buy them a considerable amount of time.
54.
Rimbaud | June 17, 2010 at 12:10 am
"It's an embarrassingly dreadful performance from a legal point of view, because Cooper has completely avoided the question of why it's constitutional to deny same-sex couples the ancillary benefits of marriage"
Hurrah! from Down Under (yes, you have a supporter in Kangaroo-land)
55.
ken | June 17, 2010 at 12:28 am
Although, the trial is public I believe the best you would be able to do is request written transcripts (for a fee) of the trial. I don't think there is a way to get actual copies of the recordings.
56.
Richard A. Walter (s | June 17, 2010 at 12:49 am
Yes. They are already trying to bilk people of money to keep Congress from passing legislation that would require them to disclose their donors and the amounts they were able to wring from them through their scare tactics. I got an email from them this morning. I think I still have it, and if anyone wants a good laugh, let me know, and I will email you with it. If I don't already have your email, PM me with it on my FB page.
57.
Richard A. Walter (s | June 17, 2010 at 1:42 am
Actually, ken, between the AFER site, and Kathleen being kind enough to upload them to scribd, you can get the pdf downloads that way also.
58.
Edward Gould | June 17, 2010 at 2:50 am
Is there a plan to do so, already? I do not think it would serve anybodies best interest if several parties were to do so.
59.
Kathleen | June 17, 2010 at 6:35 am
For the record, the 9th Circuit did not object to televising the trial. In fact, Walker had to request permission from that court as an initial matter and the 9th approved the request. It was the US Supreme Court that nixed the plan.
60.
Rikaishi | June 17, 2010 at 6:49 am
Another Aussie here, I've been following the trial from the start. Your clarifications on the American legal system have been greatly appreciated Kathleen.
61.
Kathleen | June 17, 2010 at 6:56 am
LLB is putting together the list of US states and other countries represented by those who watched the closing arguments. So far, we've tallied people who are from all but 12 states.
Was anyone from these states following here yesterday?
Alaska
Arkansas
Connecticut
Hawaii
Idaho
Iowa
Kansas
Louisiana
Montana
South Dakota
West Virginia
Wyoming
62.
NetAmigo | June 17, 2010 at 7:20 am
I just finished reading the transcript closing arguments and was really moved by how powerful a case Olson and team made. Even Maggie Gallagher concedes we have probably won at this level.
http://nomblog.com/981/
If you want to see how absurd a case becomes when a court uses a rational basis in it's extreme, read the Washington State Supreme Court opinion upholding WA's DOM (Defense of Marriage) law. The judges practically apologize for how ridiculous their opinion becomes applying that standard.
http://www.courts.wa.gov/newsinfo/content/pdf/759…
63.
Richard A. Walter (s | June 17, 2010 at 7:29 am
Alan E. and I grew up in the same little town in West Virginia, and I have friends who were probably lurking yesterday. But I guess you can only represent one state at a time.
64.
K!r!lleXXI | June 17, 2010 at 7:41 am
@ken
Most likely! Not in the nearest decade. Supreme "Justices" already showed us how "just" (read "bigoted") they are by simply granting that stay on a ridiculous argument.
Now, here I do not understand something: if the televising was nixed, why all those witnesses did not return to the court to testify? There was enough time to bring at least a couple of them! This argument just does not fly! We still know their names and have their depositions ON TAPE, at plaintiffs' counsel disposal! Saying, "We have something to say and witnesses to testify to that, but they are just all afraid and will never testify!" is not gonna fly either! Eventually, the court will have to rule considering only the evidence at hand. But you're right, I'm afraid, — we may have an additional delay in the form of a re-trial (Justices will most definitely entertain that idea), and there are other ways to delay the proceedings… that's all they have left — stalling! Because the truth is on our side!
–K@RU
65.
Kathleen | June 17, 2010 at 8:05 am
If you have friends in WV who were lurking, get them to just come on and let us know they were here yesterday.
66.
Edward Gould | June 17, 2010 at 8:06 am
@ken:
As to your point about the witnesses not coming forward. This is enough for me to doubt the legal system in California. Their point was (I believe) that their witnesses were threatened. Now since no witness showed up who can say they were threatened the argument about televising future case(s) if they win/lose is null and void.
I was guessing that was a straw witness item and was convinced all along that it was really made up just so they could say that a witness had been threatened so the trial should not be televised.
This whole mess smells like something the Republicans would dream up, perhaps Chaney.
67.
Helen in Ireland | June 17, 2010 at 8:34 am
I'm in Dublin, Ireland, for your records! We have a civil partnership bill coming up soon, but the Catholic bishops want to nix it (of course). I was heartening to hear on the radio news, an Irish TD (member of parliament) supporting the bill and questioning what moral authority the curch had in this case…
68.
Kathleen | June 17, 2010 at 8:43 am
Nice to see you Helen. Best of luck to you in your fight for equality.
69.
Richard A. Walter (s | June 17, 2010 at 9:52 am
I certainly will.
70.
Roger | June 17, 2010 at 12:16 pm
Hopefully this is going to show up in the right spot and not at the bottom of the page, but yes, I'm in Australia, in Sydney.
There's a lot of interest in this case here, and I'm just about to go over and prune the roses for a customer of mine, who is a lawyer who's argued successfully before the High Court of Australia — and who I'm sure is going to pepper me with questions this afternoon.
71.
Lymis | June 18, 2010 at 1:14 am
I can't see the TV issue flying either – unless the appellate court just wants to make stuff up out of transparent bigotry.
The D-I's had far too much time to request the opportunity to gather more witnesses. They had, if they chose, a perfect opportunity when the Supreme Court declared that the trial would not be broadcast to ask for a delay to gather new witnesses or reassure their previous ones. They could have said that they were prepared to go forward with the trial but asked the right to petition for more witnesses later.
Walker showed he was willing to not close the trial for a significant time while he reviewed the record. It is hard to claim that he wouldn't have entertained a request for more witnesses if they'd asked.
They didn't, which implies they thought they could make the case without them. In fact, in closing arguments, they explicitly stated that they didn't feel that they needed to have any witnesses at all – hard to claim after the fact that the lack of witnesses they said they didn't need ruined their case.
72.
Ken | June 18, 2010 at 3:55 am
Edward said:
"As to your point about the witnesses not coming forward. This is enough for me to doubt the legal system in California. Their point was (I believe) that their witnesses were threatened. Now since no witness showed up who can say they were threatened the argument about televising future case(s) if they win/lose is null and void."
No, the argument made was that IF the proceedings where televised, the defense would not be able to present their case because some of their experts would not be willing to testify. The courts agreed with the defenses argument, and said the trial could not be televised. Since some of the defenses experts refused to testify, CLAIMING that the threat that the proceedings might be televised as the reason, the defense now has a reason to appeal.
And I believe, because the higher courts would like more time before having to decide this matter, that an appeal on those grounds will succeed and the case will be sent back for a re-trial (one where it is clear from the start it will not be televised).
Of course, this analysis isn't even based on Walker's ruling, which may have other reasons to appeal. However, I'm willing to bet Walker's ruling will be designed to severely limit the potential for appeal. Ex. if Walker rules "strict scrutiny" applies, I'd bet he will still include language saying that the defense didn't even meet the standard for a "rational basis" test.
73.
Tim & Mike Quade | June 18, 2010 at 4:30 am
Kathleen et al,
You guys ROCK!! I have spent the last 2 days reading the transcripts (thanks Kath for the link) and all the blogs and am so pumped up with hope that this nightmare may come to an end in my lifetime.
Untill yesterday I have never bloged hope I'm doing it right cause I'm sure there will be a lot of things I will like to comment on in the future.
If I had a way to thank the Reiners I would because this may eventually remove the ban Wis put on gay marriage in 2008.
Again thanks every one you are truly teaching an old dog new tricks.
Love Tim & Michael
74.
Kathleen | June 18, 2010 at 6:50 am
You posted your comment absolutely perfectly! I'm so glad you took the time to read the transcripts.
75.
Edward Gould | June 19, 2010 at 8:46 am
I am still hung up (maybe incorrectly) about why the trial was not allowed to be televised.
Did the prop 8 people produce proof that the "witnesses"
were threatened or did they (the court that ruled that it not be televised) just take their word for it?
I just find that hard to believe. Just about any witness could claim the same thing then he/she would not have to testify. I would have to believe that in any ordinary case proof would have to be produced. *IF* that is the case here then the witnesses would have had to produce proof (if they didn't) then the grounds for not televising is totally fake.
As a side question, the daily "log" of what was said is extremely difficult to follow as the program that is being used is inserting characters that make the record almost impossible to comprehend. Is there some effort being made to make the "log" more readable?
Your comments are clear and concise and so are the judges but others are almost incomprehensible at times.
Sorry I am not using the proper names for legal items my memory is at best shaky for such items.
76.
Kathleen | June 19, 2010 at 9:00 am
Edward, I'm guessing by the "daily log" you mean the live feed transcription? There is now a written transcription available at the AFER site: http://www.equalrightsfoundation.org/legal-filing…
Do you have a copy of the "daily log"/live transcription feed? If so, I really, really want a copy of it. It transcribed the portion of the videos shown, which is not included in the official transcript.
77.
Edward Gould | June 19, 2010 at 9:44 am
Kathleen,
Thanks that is what I was looking for. Sorry for the lapse in terminology but my memory has been bad after my stroke.
I am semi able to function but I need the understanding of the people I talk with. Thanks again.
Looks like good reading material and will try and get through it tonight.
78.
Kathleen | June 19, 2010 at 9:47 am
Edward, did you have a copy of the live feed transcriptions? I really need to find a copy.
No need to apologize for anything. I have an illness that affects my memory, so i really understand.
79.
Edward Gould | June 19, 2010 at 10:10 am
Kathleen,
I found the PDF version(s) you pointed me to thanks!
Is there a plan to put them all into one PDF file or to keep them separate? (I have a friend that has the full PDF component that probably could do it) let me know.
I bought an IPAD so I was hoping to read them on the IPAD but IPAD need 10.5 (or above) so I have it gathering dust. I can read it on the computer fine but was hoping to stay away from it fore as long as possible:(
80.
Kathleen | June 19, 2010 at 10:15 am
I don't know of any plan to put all the transcripts into one pdf file. I'm not sure that there would be a call for it; it would be a large file
The reason I'm asking whether you kept a copy of the live feed transcriptions – the "daily log" – is because something was included in that which is not in the pdf version. I thought you might have possibly saved a copy when you were reading them online earlier and I'm trying to find a copy.
81.
Richard A. Walter (s | June 19, 2010 at 11:16 am
Kathleen, let me look in my downloads file again and in the one I have everything else from this trial in. I may have it. If I do, I will email it to you.
82.
Kathleen | June 19, 2010 at 11:21 am
Thanks Richard. It's not something you would have likely downloaded. It appeared in the "live" window on the day of the arguments. I think you would have had to cut and paste it form the window in order to save it. I thought about doing that, but figured everything that was in it would be available (and more readable) in the official transcript. I didn't realize there would be a difference.
83.
Richard A. Walter (s | June 19, 2010 at 11:49 am
Well, I have Firefox, and it downloads stuff sometimes that I think it is just opening the window for me to read. I am trying to get to that download window. Once I get there, if it is there, I can probably attach it to an email.
84.
Edward Gould | June 20, 2010 at 5:28 pm
NY Times article on The Trial:
————————
June 19, 2010
Weddings for Everybody!
By MAUREEN DOWD
SAN FRANCISCO
Everything about the climax of the legal quest to overturn California’s ban on gay marriage was appropriately cinematic — even the month best to imagine two men atop a wedding cake or two women walking down the aisle.
“It may be appropriate that the case is coming to closing argument now,” Chief Judge Vaughn Walker said with a twinkle. “June is, after all, the month for weddings.”
The Federal District Court trial that seems tailored for a made-for-TV movie features the remarkable odd-couple pairing of two lawyers who have already been depicted in a made-for-TV movie, “Recount,” about their rivalry in another historic trial, Bush v. Gore. The conservative Ted Olson now prides himself on being “an honorary lesbian,” and the liberal David Boies now prides himself on upbraiding Barack Obama for not pushing to give gays the same shot at marital bliss — and misery — that people like the president’s parents got when interracial marriage was legalized.
Officiating from on high was the dapper and quirky, silver-haired, silver-tongued, silver-goateed Judge Walker, who would have been played in a 40s movie by Clifton Webb. The anti-Ito, Judge Walker moved the trial along without preening for the media, asking thought-provoking and occasionally droll questions of lawyers for both sides. Walker is something of a character who invites magicians to perform at the annual court conference and who once made a mail thief wear a sign that said: “I have stolen mail. This is my punishment.” Heightening the dramatic possibilities, he is also, according to The San Francisco Chronicle, gay himself, which might give Prop 8 proponents ammunition to claim bias if he rules against them.
Chad Griffin, the gay former Clinton aide who is the strategic mastermind of the legal battle against Prop 8, is handsome, boyish and clever, right out of central casting with hip glasses and sharp suits.
In his two-hours-plus closing argument Wednesday, Charles Cooper, the slim, white-haired lawyer arguing against same-sex marriage, evoked the Paul Newman character in “The Verdict,” a man who was out of his depth against a superior legal team.
But Paul Newman was able to lift it in time to save his case. Cooper appeared not to have his heart in his endgame. He didn’t even stay for the Q. and A. part of the news conference after court on Wednesday. Like he had somewhere more important to be in the middle of the afternoon following arguments on a landmark case?
His close was so lame that if you didn’t know better, you’d think he was trying to throw the case. Maybe he was shaken by the fact that some of the defense witnesses had bailed, intimidated by the Boies deposition process. Another defense witness, David Blankenhorn, the president of the Institute for American Values, a group that studies marriage and families, inexplicably ended up helping the plaintiffs when he said that heterosexual couples have been busy “deinstitutionalizing” the institution of marriage, and that adoptive parents are as good as natural parents. He also said that “we will be more American on the day we permit same-sex marriage” and give gays human dignity.
Cooper failed to reflect the fervor of the anti-gay-marriage proponents who frothed in 2008, direly warning that marital parity would cause moral damage, hurting children, helping the devil and destroying civilization.
He tepidly offered an apocalyptic warning: “Without the marital relationship, Your Honor, society would come to an end.” He blamed “irresponsible procreation” — even though heterosexuals are the more likely perpetrators.
At one point, Cooper was pressed by the judge, who said, “I don’t mean to be flip,” but went on to ask the lawyer what testimony in the case supports the proposition that the object of marriage is procreation.
Cooper said he didn’t need evidence of that point, surprising the judge, and argued that, even if that was wrong, Judge Walker should uphold the law because the people of California had voted for the same-sex-marriage ban.
Walker seemed bemused, as he did through much of Cooper’s stumbling close. “But the state doesn’t withhold the right to marriage to people who are unable to produce children of their own,” the judge said. “Are you suggesting the state should?” Cooper said no, failing to offer any compelling argument for discriminating against same-sex couples.
Olson was at the top of his game as he concluded the case and got a standing ovation from those watching the proceedings onscreen in the overflow room.
“And I submit, at the end of the day,” he said, “ ‘I don’t know’ and ‘I don’t have to put any evidence,’ with all due respect to Mr. Cooper, does not cut it. It does not cut it when you are taking away the constitutional rights, basic human rights, and human decency from a large group of individuals.”
85.
JBN | September 28, 2010 at 6:13 am
Walker is, by all accounts an activist judge. His bias and hate-filled remarks calling 7 million Californians bigots is beyond any sane persons beliefs. He should be taken off the bench immediately.
His base argument is also wrong. Proposition 8 does not take rights away based on sex because marriage treats both men and women EQUALLY, that is what the law is for.
It is sickening that the activist lesbians run around saying "equal protection under the law". Twisting and abusing that law is exactly what the out of control congress does by extorting the American people claiming "Interstate Commerce".
Traditional marriage gay men and women need to stand up, speak out, and be counted, I am and I voted YES!!
86.
Ronnie | September 28, 2010 at 6:19 am
Um…..NO!!!….. : / ….Ronnie
87.
Ronnie | September 28, 2010 at 6:45 am
Walker is not an "activist judge" …that is a made up term by uneducated anti-gay, un-American selfish Fascist's…..He has no bias… it was based on Constitutional law, evidence provided by the lawyers & testimony from the witnesses for both sides….to bad the anti-gay side didn't have shite to back up their illogical & irrational selfish claims…. you benighted schlock….& you can't take somebody off the bench for doing their job…you don't agree because you're an uneducated little shite that obviously knows nothing about how the Judiciary or the Government works…take some f@#king civics & poli. sci. classes so you don't sound so god-damn stupid….
His base argument was 100% correct….GET OVER IT!!!!…& he didn't call 7 million Californians bigots,,,the Fascist pigs over at National Organization for Murder & Misinformation spread that LIE…
Prop Ha8te does take rights away….It's anti-gay Fascist pigs thinking they have a right to put their repugnant snouts in our personal lives…taking our right away to marry who we choose to marry….Marriage is a personal choice not a public matter….Nobody gets a say in how we live our lives….ACCEPT IT & GET OVER IT!!!
It is sickening that extremist anti-gays run around going "f@#k you" to LGBT people because we don't bow down to them…I mean their Fascist religious beliefs & definitions….It is anti-gay "people" who are twisting & abusing the law to force us to live our personal lives how they want us too…..I am American too & the anti-gay trash doesn't get priority over me….I will have & demand equal protection under the law…..AS I AM!!!….not how some anti-gay selfish dross wants me to be…..
Traditional Marriage = 2Men, 1Man-1Woman,, 2Women…….Gay, Straight, Transgender, Bisexual, Male, Female, ALL Races & Nationalities, & ALL Ages & Faiths are standing up & speaking out….nay…we are shouting out…..
EQUALITY NOW!!!!!!!!…LEARN IT!…LIVE IT!!…LOVE IT!!!….& most of all….GET OVER IT!!!!…… <3…Ronnie
88.
Kathleen | September 28, 2010 at 7:41 am
Walker is, by all accounts an activist judge.
I realize those of you on the wrong side of history are prone to hyperbole, but surely even you see what an absurd statement that is. I can find many, many accounts of Walker which make no such claim. In fact, the accounts written by the most well-educated reporters and legal scholars which refer to him as an 'activist judge' are extremely rare. Perhaps you'd like to rethink your statement?
89.
Kathleen | September 28, 2010 at 7:42 am
Shesh – another italics gone mad mistake. The italics should have ended after the first line in which I quote the earlier comment.
90.
Edward Gould | September 28, 2010 at 10:27 am
One of the many side issues in this discussion is that it has been traditional that a man and a woman married (for a variety of reasons). The *assumption* was that only men and women were capable of living together in a sexual relationship. There have been in the past (and currently) exists quite a few male/female relationships that are non sexual in nature. Society has re-inforced that issue as society has been dominated by males (and to a lesser extent females) have come to believe they are the only people that should be allowed to marry. This is quite a big ego trip for men as it puts them in the drivers seat to dictate what is right and what is wrong. Many women that I am aware of do not go down that lane and if you ask them there is no black and white issue here. Women are not afraid of "the sanctity of marriage", indeed it is mostly (if not all) men are the ones that are afraid. It is male ego and other issues that bring that idea to the foregound.
Sure there are some women that think male-female marriage is the only option but if you dig a little you will find (probably) a strong father figure that has shaped her opinions over the years.
The male over the years has thought himself as the sole breadwinner and protector of the home. That is NO LONGER the case. Indeed unwed mothers are now becoming a large subset of the single head of household families.
There is no reason to discriminate anymore (if there ever was a valid reason to). Male-Male households can and do raise children and they have a loving relationship and that is what is important in a household. Even if there are no children in the household the household can and does succeed on many levels.
91.
Lesbians Love Boies | September 28, 2010 at 10:29 am
Very well said Edward.
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