By Adam Bink, Jacob Combs, Arisha Hatch and Rick Jacobs

5:05 (Jacob): And, with Charles Cooper’s histrionic closing, court is adjourned.  All arguments in the Perry case have now been made.  Next comes the ruling!  Thanks again to Rick Jacobs and Arisha Hatch for updating us throughout the hearings from the courtroom, and to KQED for providing the live stream of the event.  This thread will no longer update.  Be sure to check back here at Prop8TrialTracker.com throughout the evening and tomorrow for reactions to today’s hearings.  As always, if you see something of interest, send it our way!

5:00 (Rick): Cooper: Want more than two more minutes. Judge Reinhardt, you accurately did characterize our argument. In filing after filing, …repeats stuff about committed relationships.  Makes common sense point that a person in an enduring, committed relationship has, do you have an interest in getting married. It was plaintiffs who said 64% of committed gay relationships want to marry. That was their evidence. I’m glad counsel raised Alabama case.

No evidence that Judge Clemmons’ children wanted his children to go to these instiutions in the area.  Is it the plaintiffs’ position that he could have said that my kids want to go to one of those institutions in Montgomery that that would not matter?  That would be appalling.  There would be no problem for Judge Wlaker to sit on DADT even though he’s gay and minority. (COoper is really steamed!!!)

If Walker is ruling that he has constitutional right to marry, if this court says that’s just fine, this will be a signal and dark day in American jurisprudence.

R: Let’s hope however it comes out, it won’t be a dark day.

(Laughter)

4:55 (Rick): TS: Ware said every person has same interest in constitutional rights.  Not just minorities. Frankly I think this advocacy of this motion sets a double standard. Shows one thing: all cases with black women rejected idea that that made them impartial.  Proponents can’t get it through their heads that gay people are not inferior. Cases are do not apply.

S:  Even if he held that upholding Prop. 8 meant he could never marry?

TS: Yes.  No indication he was unfair.  This court has to presume that.

R:  Nothing to do with stereotypes. Presumption is that gays like heteros wants to get married.

TS:  Every person may want to get married.

R:  This is not argument that all gays are recused because they are gay. (We love Terry!!)

TS:  Awfully close.  Gay people all want to see a law like Prop. 8 overturned. No evidence here of immediate interest by Walker.

4:53 (Jacob): Cooper is back up for two minutes.

4:50 (Rick): B:  Even if court rejects everything I say as matter of law. It is still case that Ware looked at it all and determined no reasonable case for suspecting Walker’s impartiality.

T Stewart:  If proponents’ views were correct about disclosure, a woman judge of child bearing age re: abortion would have to disclaim use of abortion.

R:  Mr. Cooper is trying to make an argument, not sure how successfully, that a woman on brink of abortion is in different circumstance than general.

TS: Let me step back.  This argument hearkens back to conduct to of gay people.

H:  I don’t hear him say that.

R:  You are making an argument that Cooper is trying to disavow. This does not apply to every gay person.  It’s when you apply to a particularlized person who wants to get married the next day is different.

TS: Yes, but does not work. Heteros meet and get married in months or wait years.

R:  True.  He would be saying that every heterosexual is saying one day he might want to get married.  This is different because Walker might want to get married next day.

TS: Yes, but turns presumption on head that judges are presumed not to be impartial unless proven otherwise.

R:  Now we get to real argument.  Burden is on judge to disclose.

TS:  Yes, but in case judge did not have to disclaim that his kids never wanted to go to university (in case).  Courts do not impose this on judges to disclose possible interest.  Reference to Catholic judge who speaks out against abortion. Noonan said could not put that sort of qualification on judge.

4:42 (Jacob): “Well Mr. Cooper is trying to make an argument, and I don’t know how successfully…”  Ouch.  Therese Stewart is back up.

4:41 (Rick): B: I see no authority that someone has obligation to say they have obligation to exercise right in question.

R:  Is it relevant to right of public to know?

B: No. Let’s assume there is an obligation to disclose an intent to get married.  Judge Walker is not in any way required to disclose a non-intent to get married. Creates pernicious effect that would create intolerable double standard for minority judges.  A heterosexual (majority) judge does not have obligation to come forward to tell about views?  If not, what you are doing by rule Mr. Cooper advocates creating a double standard. Goes right in face of cases that show that minority judges are presumed impartial.

4:39 (Rick): B: Demographics of exhibits they put in show that Walker not more likely to get married than any other gay person wants to marry. They are factually wrong even if they are right about law, which they are not.

R:  Mr. Cooper said that we don’t take position that just because judge is gay or may want to get married, we have to look at length of relationship as indicator to marry. Eight years may make you less likely to want to marry (Laughter).

He says if you are together with someone for a long time, takes you out of the general class of people who want to marry.  Cooper says does not matter that he’s gay.  He says 8 years is a plus, some would not. You are saying no matter what would not require recusal.  Is there anything to Mr. Cooper’s argument that there is a specific relationship judge should have told us about?

B:  Just conjecture and speculation. Simply no evidence that because of that relationship, he’d want to get married more than another gay person.

4:36 (Jacob): Reinhardt jokes that being in an 8-year relationship might make someone less likely to be interested in marriage, prompting laughter in the courtroom.

4:34 (Rick): B:  The majority typically defends exclusion because it is based on tradition, religion. All used to exclude African Americans.  Used to exclude gays from institution of marriage.  Defendants argue that since many members of the minority want access to marriage, must disqualify unless they have no interest in marriage.  Consider how disruptive and corrosive if every majority judge were required to disclose any interest and then meant that judge might not be able to rule impartially.  Consider how impossible it is to have majority judge who does not want to change status quo does not have to recuse, but minority who does want to change status quo.  The law is that judges don’t have to do that. But even if it’s not the law, the facts of this case, Ware examined legal principles, law and concluded that no basis to question impartiality of Walker.

And what do we have from defendants?  They say he’s in committed relationship. He cites that 64% of gay coulpes want to marry. Says nothing about length of relationship being indicator of desire for marriage. Says nothing about whether they want to marry. They conclude that even though many gay people want to get married he would not have to disclose that he’s gay even though many gay people want to marry.

4:30 (Arisha): The judges are sitting stone-faced, not interrupting Boies.  This is the longest an attorney has been allowed to speak without being interrupted today.

4:28 (Rick): Boies:  In all cases cited by either party for conflict/recusal when Judge says things about case outside of court, judge had fiduciary conflict.  Judge’s clerks involved. None of these is present here. The other side comes up with a new idea that because a minority might be impacted, the judge is in conflict. The law is the opposite. In class action, even when judge or family part of class, not sufficient to recue.

R:  Your position is that if Walker had disclosed that he wanted to get married after trial, he would not have to recuse.

Boies:  That is the law, Your Honors.  (Cites law.)  There is no authority that judge had to disclose something not a basis for recusal.  If he had no interest in getting married, he did not have to say that. We believe the law is that even if he did want to marry, did not have to disclose.

Smith: My reading of law is that judge reviewing case has to look at law.

B: Yes, your honor. That’s why courts defer to district court. Defendant claims that this is not targeted at minorities.  CC said that even judge who supports institution of marriage, not just his marriage, need not disclosed.  5^th Circuit says that for every claim is counterclaim. The defendants argue that gay marriage so threatens the institution of marriage that they must be denied access to the institution. By the defendants’ logic, any straight judge with such a view would have to recuse.  Only people who can judge here according to them is gay or straight judge who does not have an interest in marriage.

4:26 (Jacob): As many in the Twitterverse are commenting on, does Cooper’s argument that a straight judge has no concrete interest in a gay marriage case shoot his previous arguments on the merits in the foot?

4:21 (Rick): H:  Did Ware make factual finding about whether he had to disclose?

CC:  Finding of law.

Smith:  That’s your position, but he did make a finding.  What about a heterosexual judge who said that he found that he wanted to maintain definition of marriage. Would he have to dislclose that?

CC:  We have always maintained that outcome on any one marriage not affected.

Smith:  What about a single heterosexual man?

CC: Not a big enough interest.

R:  If I said to you after today that marriage is worthless and is now looked at negatively rather than positively that won’t have impact on those of us who are
married?

CC:  That would be the outcome of Walker’s ruling, but disavow that it would negatively affect marriage. Have not even said Walker’s ruling would immediately effect marriage. Would get there eventually.  A gay judge who wants to marry is affected.

R:  We’ll give two minutes for rebuttal.

4:20 (Jacob): David Boies is up for our side now.

4:18 (Arisha): Reinhardt: If he had said that he did not have an interest in marriage, then he must remove himself anyway?

Cooper: He could’ve said I’m in this 10 year same-sex relationship, but I have no interest in marriage.   This case wouldn’t be here if that happened.

Smith: Would that be a reasonable basis for disqualification?

Cooper: That is not our argument – if he disavowed an interest in marriage – then we would not have tried to disqualify him. [commentary: Does anybody else find this difficult to believe?]

Smith: What if a married heterosexual judge desires to maintain the definition of marriage as between a man and woman, would he be required to disclose that?

Cooper: We have disclaimed since the beginning that individual marriages will not be harmed by same-sex marriage. [WHAT?]

4:15 (Arisha): Judge Reinhardt: “it’s a perfectly normal thing to want to get married.”

4:15 (Jacob): KQED’s livestream is up and running again.

4:13 (Adam): A good point by Judge Hawkins, who points out that Walker did not marry during the window in 2008 when he could have.

4:09 (Rick): R:  What would reasonable person look at? All facts other than the one not known which is whether he wanted to get married?

CC:  Requires that the judge disclose all relevant facts.

H: Rule says all facts have to be disclosed.  Rule also says that someone not knowing if judge was impartial must determine whether appropriate disclosure made. Ware made it. Said he disclosed.

CC:  All facts known privately to judge must be disclosed.

H:  Who determines that?  Not appellate court. It’s not here on appeal.

CC:  Indisputable that he must disclose if he wanted to marry his partner.

R: Why does he have to disclose if he did not have interest?

CC: All other facts strongly suggest to a reasonable person in possession of all facts that had a reaonslabe interest in marrying partner. Had he disclosed facts at time of retirement.

R:  You would have examined him on that question?

CC:  Yes.

R: In what proceeding what he have been asked that question?

CC:  All facts must be disclosed. If he had disclosed his ten year relationship, putting him very nearly in shoes of plaintiffs, he had to disclose.

S:  What do we make of fact that he did not get married in interregnum period when he could have gotten married?

CC:  No more do we make of the fact that he did not than the fact that plaintiffs did not. Certainly not inconsistent as it is not inconsistent with plaintiffs.

S:  Had he gotten married, woud he have have been required to disclose?  Looking for yes or no.

CC: Yes.

4:07 (Jacob): KQED tweets live connection is back up but “iffy.”  I can’t access it yet.

4:05 (Rick): CC:  Consistent with 455 whether or not reasonable conclusion that judge’s impartiality might be questioned.

H: You cite Bybee case which never was tried.  Cases say abuse of discretion.  What is it that could have been abused?  It isn’t a de novo review of lack of facts.  Not de novo to apply law.

CC: Holland case good to apply.

H: We don’t have Holland in front of us.  Only thing that happened in Holland was  that appellants had to make argument to circuit themselves.

(Cooper is really looking bad. Bad.  He does this over and over. He just keeps repeating himself).

H: Ware reviewed and said he did not think Walker should have recused self.

4:03 (Arisha): Smith: Judge Ware doesn’t know whether the Judge is actually impartial and he decides, as a matter of fact, that there are no reasons to question the impartiality on the basis of the circumstances I have before me.  What case do you have that says that the application of the law to the facts is de novo review? It’s a question of fact.

Cooper: We submit to you that Judge Ware abused his discretion.

Smith: So what he (Ware) did was illogical, implausible and had no support in the record? […] It isn’t an abuse to apply law to facts? It isn’t a de novo review to determine what the facts are.  And Ware applied the law you offered.   Where is the abuse?

4:00 (Rick): CC:  Well, he could have been in this position of the plaintiffs.

H:  I’ve read your briefs.  What standard of review would I use for Judge Ware’s ruling?

CC:  Law.

H: They’d have to be illogical, implausible or without support.

CC:  Yes (sheepishly).

H:  Had this case come directly to us, we’d have had plain error review, but we did not do that.  We sent it back to the good judge.  What is the correct legal rule that Judge Ware did not apply?

CC:  He did not apply correctly the test under 455?

H:  That does not mean anything to me. What law did he not apply correctly?

CC: He did not apply the objective test?

H: What did have to do to apply the objective test?

CC:  Has to apply facts that were known and key facts not known as not disclosed by Walker.

H:  “Not knowing whether or not a judge is impartial might want to see if he’s impartial.” Ware then says I cannot reasonably see that there is any lack or partiality. Why should I apply this? (Judge is pissed.)

3:58 (Arisha): S: Do we have anything in this record, any evidence that Walker desired to marry? You all talk about if he desired, but I saw nothing that said he desired.

Cooper: We don’t have any direct evidence.

Smith seems frustrated with Cooper.

3:55 (Rick): Oh, good. Mr. Cooper.

CC:  In filing after filing, plaintiffs have said that they are in long-term serious relationships.  In May of 2009, when Judge Walker read allegations of complaint, he knew something the litigants did not know. He knew that he too was a gay resident of California in a serious relationship. It was 8 years, same as Zarillo and Katami. Walker made clear decision not to disclose. In interviews, when asked about orientation and how it might affect, he declined to comment.  He kept quiet for two years of case and then after retiring from bench, he disclosed to a group of reporters that he was in a committed relationship for at that time 10 years.

H: So a married judge could not hear a divorce?

CC: (Stumbles…)

H:  Would he have to disclose that he was married for 28 years and had some difficulties? (Laughter) That’s what you are arguing here.

3:49 (Jacob): Court is back in session.  Now onto the motion to vacate Judge Walker’s ruling.  Charles Cooper is arguing for the proponents.

3:46 (Jacob): We’re in a 10 minute recess right now.  KQED’s Scott Shafer tweets that Judge Ware (whose decisions are under review) and his clerks are in the courtroom watching.  Apparently, KQED lost their internet in the courthouse, hence the loss of the livestream.  They’re working to get it back.

3:42 (Rick): So this does not look good. These tapes look like they are staying under seal.   But I’m guessing they are not vacating the judgment because Judge Walker is gay.   Also, next time, I’m eating before the trial!

3:41 (Adam): There will be a ten-minute recess, after which time we expect to hear arguments on whether to overturn Judge Ware’s ruling denying the motion that Judge Walker’s ruling should be dismissed because he’s gay. What did you think of the arguments for each side?

3:40 (Rick): DT:  Just because something in the record, as was President Clinton’s testimony in McDougal, still remained under seal.

3:39 (Jacob): KQED tweets they’re working to fix livestream problems.

3:38 (Rick): R:  What does the word “eliminated” mean?

TS:  Not word eliminated, but broadcast that matters.

Smith:  Not broadcast, but public broadcast.

TS:  Rule does not apply here.

R: Usually I agree with Judge K, but we have all disagreed at various times. Your time is up.

Rebuttal:

David Thompson:  We did not object because no reason.

R: What is effect of not objecting?

DT: We don’t think any talismanic or other significance to putting in record.

3:37 (Jacob): What this seems to boil down to for the judges is a question of whether or not releasing the tapes at this point would constitute a broadcast, which Walker specifically said would not occur.

3:35 (Rick): Therese Stewart:  Ware looked at record on this case. Did Walker make a commitment that these digital rcordings would never see light of day. Ware made clear that he made copiesavailable to parties.

R:  That was for same purpose.  To arrive at a decision.  Nothing secret in them.

TS: Yes, that’s right. Ware decided long after trial that there was no such commitment to keep it from public. Seal orders do not prevent parties form revisiting. Not reasonable to assume that because court placed under seal, can never revisit. Public interest is reason.  Not reasonable form of reliance to keep under seal.  He made a determination of reason he wanted to use it and put it in record.

R: Maybe you did not hear what Judge Smith said, which is that Walker said potential broadcast eliminated.

TS: Rule against broadcast talks about media coverage. Judge Kazinsky does not preclude use.

Smith:  Does Judge K’s letter established precedence?

TS:  Not precedence, but carries weight as policy.

Smith:  He’d be happy to hear that if he were here.

R:  Did Supreme Court overrule that letter?

TS:  There was dissent…

R:  It was a good dissent. I agree with it on merits and argument, but we have to go with majority.

3:34 (Jacob): Therese Stewart is up now, arguing for San Francisco. She’s arguing that tapes were never meant to be secret.

3:30 (Rick): TB:  Since we are also going to hear that people think the judge is biased because of his sexual orientation, all the more important to let this video come to light to see if he’s biased.

R:  I do not want to discourage you from this line, but I have a hard time seeing how this applies to this issue.  Was a promise broken? How does that impact judiciary?

TB:  He put in record. NO one objected.

H:  Walker said would be kept under strict seal.

TB:  Other copies existed.

H: Question for me is can lawyers rely upon promises made by trial judge that may cuse them to pursue a specific course of action. This happened all the time when I tried cases for 25 years.

TB:  There was specific oopportunity for them to object.  NO one objected. No one mentioned common law.

R: Why woud they say that?  If he said it was under seal why would you have to question that it’s under seal even if common law right of access?

TB: I don’t think he made such a strong promise.

R: The word of the court is supposed to mean something.

TB:  Difference btween what happened before and after is that there was a public trial. Ware looked at sealing order to see if harm. No harm.

S:  Potentila for public broadcast in this case has been eliminated.  He criticzed proponents saying I don’t know why you did nto bring witnesses forward. We have eliminated chance for public broadcast. Judge wrote this in his opinion.

TB:  The difference is that the public trial happened. Far greater harm if public trial testimony kept secret.

3:25 (Jacob): Interestingly, Burke (for the media coalition) tries to argue that the proponents’ challenge to Walker’s ruling because he’s gay makes an even more compelling argument for release of the tapes.  The judges didn’t even take a bite on that line.

3:23 (Arisha): Smith: How is this different from what a court reporter does, which is not a judicial record?

3:22 (Rick): Smith:  Are these testimony similar to McDougal (Clinton) or are they evidence?

O:  Transcript.

Smith: HOW is this different from what court reporter does? She takes stenographic notes and records. The recording is not part of judicial record.

O:  There is no affidavit of any harm from any witness. No affidavit form any witness saying worried about safety.  No articulable evidence of any harm. NO conceivable way to show this is narrowly tailored. Principle witness, Blankenhorn, said not concerned about public safety. 95% of trial not their witnesses. Therefore, not narrowly tailored.  Witnesses might be concerned about safety, but no evidence.

3:19 (Rick): Judge Hawkins:  Supreme Court said stop the taping.

O:  I don’t think this violates the local rule to make video to review in chambers. Then he put in judicial record. No objection. Judge Ware asked if there was objection. Judge Ware asked if you were asking to remove from record. Thompson said no. The video itself was being created for a proper purose.

R: Suppose that Judge Walker had said right after the Supreme Court ruled, he said he was taping for us in broadcast, but said ofcourse when trial is over I’m going to release to public.

O:  You would have heard more of an objection.

R:  You’d have heard an objection.  He did not say that he planned to release for broadcast. What would have been result?

O: My opponents would object.

R:  Would have gone to Supreme Court.

O:  Not sure.  They did not object.

R: He did not say he was going to release for broadcast.

O:  He did not explain consequesnecs of creating judicial record. There’s no question it’s in public record, for legitimate purpose, …

Smith:  That question is not before us.  This was made for Walker to make his decision. Why is this not analogous to Judge’s notes or clerk’s notes. Really, all he said was I don’t want to make notes; I want to see a record.

O: It was in record.

Smith: The purpose when made was to use instead of having notes. Therefore, I have a hard time understanding how this is part of judicial record. Tell me the case that supports what you say.

O: It;s the same as writing, but it has sound that shows intention via voice and visual to see body language.  He said he was going to use video  to see and hear what was going on in trial.  Same as evidence.

3:17 (Jacob): In general, the judges seem dismissive of the Prop 8 side’s arguments that releasing the tapes would cause any harm or harassment.  They seem much more concerned (Judge Smith and Ted Olson are both speaking forcefully) about the fact that Judge Walker said he was making the recording only for his personal use.

3:15 (Arisha): Olson’s argument is that the video was made for a lawful purpose at the time (for Judge Walker’s personal review) and then he placed it in the judicial record without objection from the initiative proponents.  He argues that placing it in the judicial record had consequences; and one of those consequences is the potential use of those tapes beyond the initial purpose they were recorded for (in this case, for public broadcast).   Placing the tapes in the public record means that they should be open to the public, despite Walker’s assurances that they would not be broadcast.

Smith: What was Walker’s purpose when making the tapes; the purpose was using the tapes instead of taking notes.  I don’t understand why notes were made a part of the judicial record.

Olson: argues that the tapes are not like notes, they are a record of the proceedings.

3:11 (Rick): Olson (arguing for plaintiffs):  We start with strong presumption for access. Only if there is a narrow interest, we look at overriding the common law.

R:  Let’s get to reason 4.  What’s your view re: integrity of judiciary if district judge makes commitments about what will happen and then broken by district court.

O:  Judge Walker was creating video for purposes which were not precluded….

R: Did not say would never be released?

O:  He himself had sealed the record. Sealed records are overtuned all the time.

S:  Did he make a finding of fact in this matter?

O: Yes.

S:  Why does this not provide Judge Ware to rule that potential of public broadcast has been eliminated.  Judge Ware did not want to interpret local rule. He was looking at abuse of discretion.

O:  I heard Mr. Thompson say that local rule preempts common law.  I have never heard of that.  This court knows that sealing order and protective order under two cases mentioned may be reversed or changed.

Hawkins:  Didn’t Judge Walker continue videotaping after the defendants objected?

3:10 (Adam): If you’re having trouble like everyone else listening to the KQED live-stream, they just tweeted that they are at their max for listeners, and no new folks can listen in. My only suggestion would be to try again later.

3:08 (Arisha): Thompson decided to reserve the balance of his time for rebuttal. Ted Olson will now have 30 minutes to argue for the plaintiffs.

3:05 (Rick): DT:  Can take snippets of video and manipulate it.  Theplaintiffs have said that they will “flood the internt” with snippets.

3:00 (Rick): Judge Hawkins asks about video of trials.

DT: 64% of judges said that broadcast would make witnesses less likely to speak, which is why we have a long standing ban against broadcast.

Reinhardt:  Second witness, Mr. Miller, was only testifying about political power of gays.  He did not make any kind of remarks gays could resent.  What he said was that gays had more political power than gays say.

DT:  Yes.

R:  It’s not likely that he’s going to be harassed or strung up for saying that political power was thus.  He did not testify about gay marriage.

DT: He did not expect this to be televised.

R:  But let’s stay with my question.  The first question is whether he’ll be harassed.

DT: In the record, Mr. Schubert talks about hundreds of harassing calls.

R:  But he ran the campaign. You’d expect more emotion.

DT:  People with yard signs got harassed.

R:  Let’s move on.  We have three more issues and limited time.

2:57 (Jac0b): Judge Hawkins points out that identity of the Prop 8 witnesses is part of public record, asks what the difference is with videos.

2:55 (Arisha): Thompson argues that harassment, violence and vandalism are still a threat for defendants’ witnesses and haven’t faded over time. “The intensity of interests and passions will only grow into a crescendo” as time passes, he argues.

2:54 (Rick): DT: What are the harms?  One is witness harassment.  Supreme Court ruled in this case that that could be the case.  January 2010 ruling.

2:52 (Jacob): Thompson admits that Blankenhorn has said candidly he isn’t afraid of any retribution, which has been the main argument of the Prop 8 proponents against releasing the tapes of the trial.

2:50 (Rick): Judge Smith asks why they did not appeal that Walker was still taping the trial? And isn’t the judge given the right to use his discretion?

DT: You are suggesting I have three different standards in this case.  Why can’t I just say it’s abuse of discretion and leave it at that.

If we were in a world where common law applied, there is no case in which video of trial was let loose.  Refers to Clinton’s video transcript in the Susan McDougal case.  Held that common law right of access does not apply. Says there are four separate harms to releasing the tapes.

Hawkins:  Were your clients under impression that would be under seal forever?

DT:  Yes. Well no, we thought it would be a minimum of 10 years and have opportunity for extended seal.

Hawkins: Your clients were aware of that?

DT: Yes.

Hawkins: Is that in the record?

DT: No.

2:49 (Jacob): Judge Smith also asks about standard of review: should we just refer to Judge Ware’s decision?

2:45 (Rick): And we’re off. The Judges are seated and arguments begin. We’re here to hear two more chapters in the case of Perry v. Edmund G. Brown.

David Thompson for the appellants. This case presents the question of whether a district court barred from broadcasting the trial can then broadcast the trial.  We submit if the answer to the question of common law right of access has precedent, then there will be grave harm. Judge Walker said the potential for broadcast had been eliminated.  At least from 14 Jan on the proponents’ witnesses knew there’d be no broadcast.

2:42 (Adam): Jacob and many of you in the comments note that KQED’s audio feed keeps cutting in and out…I don’t have any solution or response, except, keep following along by refreshing the page, and we’ll do our best as usual to transcribe everything.

2:41 (Adam): Ted Olson will be arguing for the plaintiffs (our side) on the issue of releasing the tapes, and David Boies on the issue of dismissing Judge Walker’s ruling because of his sexual orientation; David Thompson will argue the former for the proponents, Charles Cooper the latter for the proponents.

2:39 (Rick): Bustle. The clerk just closed the door to chambers.  She’s looking anxiously at some AV stuff.  Any minute, we can expect Molly Dwyer to say, “all rise,” I hope.

2:35 (Rick): Judge Walker was never late. We’re at 2:35 and have not started. I guess being gay does mean being late. Wonder if ProtectMarriage.com will criticize Judge Walker for running a timely trial?

2:32 (Jacob): Str8Grandmother from the comments sends in this twitpic of the courtroom, to illustrate what Rick’s talking about.

2:27 (Arisha): A few minutes until the hearing is set to kick off.  The courtroom is less packed this time according to Rick, but there is still little room to maneuver your way to a seat. Rick and I lucked out and nabbed seats close to the front — just between the judge’s bench and the table for the defendant’s attorneys.  Although “less packed” the room is so intimate that someone who looks a lot like National Organization for Marriage’s Jennifer Roback Morse is sitting directly to my left (apparently live-tweeting for NOM from her iPod Touch); she graciously plugged my laptop adapter in for me.

2:26 (Adam): If you’d like to read about the last time Rick and everyone here were live-blogging before the 9th Circuit, it was on December 6th, 2010, when the 9th Circuit first took up the appeal of Judge Walker’s decision striking down Prop 8 as unconstitutional. They eventually decided months later to kick the ball to the California Supreme Court on this issue of standing. The live-blog thread from December 6th, 2010 can be found here.

We’re waiting for the first hearing, on the appeal of Judge Ware’s decision to release the tapes, to begin.

2:23 PM (Jacob): For those wondering, Presidents Carter, George W. Bush and Clinton appointed Judges Reinhardt, Smith and Hawkins, respectively.

2:21 PM (Rick): The clerk is now telling folks to turn off their pagers and devices, etc.  She’s telling folks that the cameras are covering everything, but that it’s only for court use.  She said that if you are at the podium, which has a digital timer on it facing the judges’ bench, you will be on TV.  She said the judges will be seated as Judges Hawkins and Smith will flank presiding Judge Reinhardt.

For those who have not been inside of the courtoom, here’s another quick physical description.  The room seats about 200 people. There’s an old fashioned gate that separates the viewers in their pews from the lawyers’ tables which are perpendicular to the audience space and the judges’ bench.  The bench itself sits on brown marble, two steps up from the audicence.  There are eight big chairs on the first level of the bench, the center of which is a marble dais on which sits a wooden plinth.  Above that and behind is a much higher bench at which three charis are placed.  That’s where these judges will sit. The lower table is for the “en banc” hearings which apparently will begin next week (not about this case).

Behind the judges’ bench is a very intricate geometric marble design, inlaid with jadeite-like stone and shiny gold looking leaves.  So the judges sit right in front of an elegant, dark and eye-catching mosaic of shape. The room itself if sort of high baroque.  There are angels holding up shields above which float eagles.  The ceiling is coffered, separated by three stained glass sky lights, the middle of which has the seal of the US, or of the judiciary or something official looking.

It’s a great looking room, very magisterial.

Oh, Arisha thinks we’re sitting next to Jennier Roback Morse, who plugged our computers in for us.  Fun!

2:19 PM (Jacob): KQED is live-streaming audio of the hearing here.

2:10 PM (Rick): Groundhog day?  I arrived at the 9^th Circuit courthouse on this bright, sunny December day (367 days ago) to see a dedicated group carrying the banners of equality, listening intently to Assemblymember and LGBT/civil rights hero (and comedian) Tom Ammiano.  Same place, same time, a year later.  Having live-blogged the whole trial, I can never forget that August day in 2010 when Judge Walker issued his ruling overturning Prop. 8.  The 9^th promised an expedited hearing and ruling.  And here we are, nearly a year and a half later, still waiting.

Adam already wrote about our friend Ed who died yesterday of complications associated with Alzheimer’s, waiting in vain for a ruling that would allow him to marry Derence.  When I heard that this morning on the plane on the way up, I got choked up. I am again.  This big, ornate marble hall truly results in life and death decisions, some by omission.

This time, I’m sitting up front against the wall on the plaintiffs’ side, where I can get a good look at Mr. Cooper, who I still think should be embarrassed about the way he has handled this case.  He had a chance to put on a case two years ago; he did not because he could not and then just said in closing arguments that he did not need evidence.  It’s been downhill ever since.

What’s sad here is that even though we again have the leading team of trial lawyers in the country here for our side—I said hello to Ted Olson, David Boies, Ted Boutrous, Terri Stewart, Enrique Monagas—we’re dealing with delaying tactics.  They are arguing today about whether Jude Walker could be objective because he’s gay. Judge Ware already virtually laughed that out of court, but delays help Mr. Cooper and his friends to keep people like Ed and Derence from living fully.   Oh and we get to hear why the tapes of the trial should be buried even as this hearing is telecast and radio cast.  Go figure.

What’s it like here?  Rob and Michelle Reiner came in as I did.  Chad Griffin, the mastermind of the operation, is here with the two sets of plaintiffs.  I came in the building the courtroom with Dustin Lance Black, the AFER co-founder who never flags in his work for LGBT equality whether in his art or his organizing.  The courtroom is not full this time.  A year ago, it was packed.  This is ministerial, so it’s less interesting, I supposed. It is yet another step in the effort by the opponents of fairness and love, the anti-American websitecalled protect marriage dot com, to slow down the inevitable.

Arisha just got here. This is going to be interesting!

2 PM PST: Welcome to Courage Campaign Institute’s Prop8TrialTracker.com for coverage of today’s hearings at the 9th Circuit. Today’s hearings will cover the appeal of Judge Ware’s decision to order release of the video recordings from the Prop 8 trial, and the appeal of Judge Ware’s decision to dismiss a motion from the proponents of Prop 8 to throw out Judge Walker’s ruling because he’s gay. For all you need to know on today’s hearing, check out Jacob Combs’ preview piece from this morning.

The hearings will begin at 2:30 PM PST; one hour is allotted in oral arguments for each appeal, so things are expected to wrap up around 4:30 PST.

Courage’s Rick Jacobs and Arisha Hatch are at the courthouse, and Rick just reported in that he’s seated near the front in the courtroom. We’ll be blogging the oral arguments and responses from the judges, along with coverage of the protest outside and all else. Jacob and I will be getting their reporting up and providing color commentary and other links from around the legal community.

Let’s get it started!

As you probably know, next Thursday, Dec. 8, is the date for the final two hearings in the 9th Circuit appeal of Perry v. Brown.  At 2:30 pm PST, the appellate panel will hear arguments regarding the release of court recordings made during the trial, and at 3:30, the panel will hear arguments regarding the motion to vacate Judge Walker’s decision because he has been in a long-term relationship with a man.  Both hearings will last one hour.  There will be no further arguments on the constitutional issues of the case, and the 9th Circuit could issue a decision at any time after next Thursday.

As always, we will be providing full coverage of the court proceedings.  Courage Campaign’s Rick Jacobs and Arisha Hatch will be at the James R. Browning Courthouse in San Francisco, liveblogging the proceedings, and Adam and I will be on P8TT helping them and bringing you all the day’s news.

The 9th Circuit panel has also agreed to allow the proceedings to be videotaped for a later broadcast by C-SPAN and NBC-7 San Diego.  For those living in San Francisco, the court will also be providing a live stream of the hearings in Courtroom One to other parts of the Browning Courthouse. (There will also be limited public seating in the courtroom itself).   A live remote feed will also be available at the Richard H. Chambers Courthouse in Pasadena, the U.S. Pioneer Courthouse in Portland and the William K. Nakamura Courthouse in Seattle.  Finally, the audio and video recordings will be available on the court’s website at or before noon of Dec. 9.  For more information on watching the live video streams in San Francisco or elsewhere, check here.

If you don’t happen to live in one of those cities or can’t make it to the courthouse to watch the live stream, make sure to follow next Thursday’s proceedings here at Prop8TrialTracker.com!

By Adam Bink

12:12: And that’s the ballgame, folks. What did you think of today’s arguments?

As summarized earlier, Judge Ware plans to deny the motion to return the tapes, and will issue a written ruling regarding the motion to vacate the Judge Walker’s ruling soon, ideally within 24 hours.

Stay tuned for discussion from Roland Palencia, incoming head of Equality California, and other posts on today’s events. We’ll also keep you updated on a ruling from Judge Ware.

This thread will no longer update.

12:04: An update with a transcript from Rick. Judge Ware says he expects to give a written decision soon, possibly in 24 hours.

Therese Stewart:  Argues that can’t put judges out unless have very high standards.  Cites case that deals with contraception or abortion. Judge should disclose that he’s Catholice because his beliefs are fervently held. Another point:  If judge does not disclaim interest in a case, proponents say that judgment may be bad.  In other words, in a contraception case, does a judge have dislose that he and his wife use family planning or that his children use contraception?

If there is a subjective reason a judge cannot be fair, he’ll disclose.  There is no law that supports that a judge must disclaim. It would turn the entire system on its head.

We’re not here to discuss whether judge is gay.  We knew that.  Not here to discuss whether he had a relationship. That was known. Nothing in the April 2011 article that describes their financial relationship. We don’t even know if they are married.  The entire case relies on duration of relationship. Proponents say its not germane that he’s gay or in a relationship, but that he might want to marry.  But they say in the same way that you cannot speculate.

Court cannot speculate about Walker’s intentions. Must conclude that Judge would have disclosed or recused if he had an interest in the case.  Rule tries to have diverse bench so that no one is recused because he/she is part of a minority group.

W: Thanks for foreshortening your arguments.

C:  Mr. B argued issues that we have disavowed.  We do not think it matters whether Walker is gay.  Judges can be expected to put their values and beliefs aside. This is about whether Walker should have disclosed earlier his potential interest in the case.

W:  Difference in failure to disclose vs vacate stay. I don’t read 455 that a judge shall be disqualified.  Once you have a hearing, which you have now, what is the issue?

C:  Failure in his case is that he did not disclose something that is relevant to the issue. That’s an independent reason to disqualify.

W:  Failure to disclose is different than what he failed to disclose and whether that constitutes a violation.

C:  He did not disclose and what he did not disclose throw into question in his impartiality. Third is his interest in marriage.  If he had disclosed his relationship, he would have had to disclose his state of mind.  Mr. Boutrous argued that the only reasons to disqualify would be if his own case were in question.

We would not be here if we had not learned that he’s in a long term relationship.

W:  I really appreciate the quality of the briefing and argument that has been presented with respect to this issue. I understand this is an important issue to the parties based on the amount of litigation that has gone before. It is important to the courts as well. It is my intent to give you a written decision quickly. I’d like to say in 24 hours. The problem has occupied me since the motion was first made. I have been thinking about it and can give you a quick ruling so that we can move beyond.

11:57: I just changed the settings on posting from mobile devices, and for iPhones at least, you should be able to post from an iPhone and have it show up on desktops/laptops, correcting a problem we had earlier. If you’re having trouble from other devices, it may not be something we’re able to resolve on our end, but let us know anyway.

11:52: By the way, for those in the courthouse who want to have a Prop8TrialTracker community lunch with Rick and the team after this concludes, drop me a line at adam AT couragecampaign DOT org for details.

11:51: A dispatch and analysis from Arisha:

Boutrous has now moved on to the merits. He’s arguing directly to Ware’s earlier point and has said that ProtectMarriage is unreasonable – that a reasonable person would not conclude that a judge was bias simply because of his gender.

Ware takes lots of notes and is now sitting back with a furrowed brow, his index finger over his mouth.  Ware now saying that he doesn’t intend to go back and watch the tapes to decide whether the trial was “fair.”

Boutrous unwilling to move from his position that even if Walker wanted to get married that he did not have to disqualify himself. Cooper was willing to bite on this argument – mainly because he has to – otherwise Cooper would strictly be arguing that a gay judge can’t judge.

It seems that both Boutrous and Cooper used most of their 45 min time allotments to argue.

11:48: Another dispatch from Rick, the discussion between Judge Ware and Boutrous:

11:35: Things should be getting back to normal server-wise.

Colloquy with Judge Ware and Boutrous, very amicable, trying to come to a path to conclusion, from Rick:

11:30: After traffic overload and reset, we’re back! Sorry about the problems. Several new updates below:

11:22: Update on transcript from Rick:

B: There’s no factual record here of defendants being aggrieved because they did not raise it before Walker so no facts. Seeking relief after judgment entered, must be grave injustice to come in after, they don’t meet standard. They cannot rely on speculation and the like.

W: What’s difference between de novo or facts? Motion is based on factual showing.  They rely on 2011 interview for new information. Is this de novo reviewed—I’m not sure I know what I’d be reviewing—or plain error, that he left something out?

B: They have no single case that shows that recusal is warranted.  Plain error rules out their case.

W: It seems to me problematic. I’m not frequently put in a position as a district judge to review the actions of my colleagues.  If it goes to another judge and it’s de novo, you are just looking at the problem.

B:  Judges are presumed to follow their oaths and act impartially.  We can presume if he followed law, no basis for recusal.

W:  But cannot presume more than that.

B:  We’re not afraid of the facts or legal principles they have put forward.  You asked Cooper if biased person can be reasonable person.  The answer is yes.  In cases of race, ethnicity, religion—minority group—can act without bias even though they’d benefit from outcome. Walker might get benefit because equal protection might so dictate, but courts have ruled over and over again that recusal not warranted.

11:16: Update from Arisha:

Ware now questioning Boutrous on whether ProtectMarriage lawyers had an obligation to object to Walker’s sexuality earlier, noting that he hasn’t seen much law that suggests the lawyers have a duty.

Ware says upfront that he is not inclined to reject the motion because of timeliness.

Uh oh.  That means Boutrous needs to have an extremely strong argument on the merits because Ware isn’t buying into it.

11:10: Colloquy between Judge Ware and Boutrous:

W: If judgment were to be vacated and record is clear, you’d have a new judge who’d come to same conclusion. You’d have same outcome, but with delay.

B:  Enormous damage, first to judicial system that would say gay judges cannot stand on same footing as other individuals in minority groups. Can’t be based on innuendo and speculation.

W: Key to argument is that I have to find this way b/c walker is gay. Would you make the same argument if I conclude that defendants are genuine in pointing to relationship, not his sexuality.

B:  I think even if court rejects my argument, will still be perceived as bias against gay people. We had a three week trial. Over top. Does not meet any standard. They knew Walker had a relationship based on reports in June of last year. They had an obligation to look judge in eye at time.

W: Where is their obligation?

B:  Cites precedent.  Court said under 60B there is very strong diligence requirement. Gallo case says you cannot lay in the weeds until you are disgruntled litigant to strike. They knew about facts and they disavowed they’d bring it up.  If that does not sink them for all precedent and rules, nothing will.

W: I am not inclined to use timeliness.  I will consider it, but I am not inclined to rely on that.  Seems prudent not to say “simply too late.”  Then on appeal from that decision would come to decision on timeliness.  Standard of review important here. Vacated and record is clear, you’d have a new judge who’d come to same conclusion. You’d have same outcome, but with delay.

11:02: Things have recommenced. Boutrous for AFER is up:

Boutrous: This motion is frivolous and offensive but it’s not surprising since everytime in history we have faced civil rights issues, wehave faced such challenges.  Also want to point out that this motion is not timely.  And the rule requires extremely high standards to overturn a ruling.

First C’s argument makes absolutely clear that their motion targets Walker’s sexual orientation. The fact that W is gay should not be any surprise that he has a relationship.  One of defining features of being gay is having a relationship with a same sex person. They are challenging Walker because he is gay, now saying “not because he’s gay, but he had a relationship…” same argument in gender and race.  They find something else to add into mix to deflect that litigants.

When Mukasey as judge was attacked because he was Jewish, he said “same rancid wine in different bottle.”

W: Not necessary that they be in relationship to be GLB.  To presume that one is in a relationship is other side of Cooper’s same issue.

B:  Yes.  Just because people are gay in a relationship does not mean they are all the same. C is just stereotyping. Relationships are evolving, fleeting. Where would disclosure stop? There is no evidence that W intended to get married. In the second circuit in a case brought against Judge Chin resulted in sanction order, “when you come into court to challenge because someone is minority group should have huge evidence…”

W:  Defendants saying that circumstantial evidence that he might marry.

B: These standards are not to put judges on trial. I find it outrageous that they’d come in at this late date.  It was reported in the SF Chron.  Pugno said he would not make it an issue. Feb 2010 right after trial ended was reported. Five days after closing arguments, LATimes reported that Walker was gay and was seen at events with companion.  James Campbell of their side said, “as a legal team we are not going to focus on” Walker’s sexuality.  Then when they got to 9th and saw that standing is an issue, they threw a hail marry pass and took the low road.

10:55: Update from Arisha:

Have I mentioned that I’ve always liked Judge Ware. I first met him a few years back as a 3L in law school while I served as the Editor-in-Chief of the IP law review at Santa Clara Law.  For those that don’t know Chief Justice Ware has been “known” as a judge for his interest in Intellectual Property law (copyrights, trademarks, patents).  I believe he taught a class a Santa Clara, often hired interns from Santa Clara’s student body (which I always thought was amazing of him because he could have easily recruited from Stanford or Berkeley Law).  Anyhow, he’s one of Santa Clara’s favorite judges. Each year he auctioned off a karaoke party for students to bid on for charity. Because of my position as EIC, I was invited to one of the karaoke parties – I wish I could remember what song Judge Ware sang, but I digress. I say all this because I think “who he is” really matters.

Just after Prop 8 passed in California, a false meta-narrative arose blaming increased black voter turnout on the passage of the hate-initiative. I won’t rehash the details, but needless to say, both sides were quick to claim this initially as truth.  The net result was that California lgbt orgs spent the last three years convincing activists that they needed to spend time knocking on doors in the communities of color that they avoided the first time around while anti-equality orgs like ProtectMarriage.com and NOM got to go around claiming that black voters had flatly rejected this new civil rights movement (mostly unchallenged).

I began organizing for the repeal of Prop 8 in part because of this dialogue – to show that there are “straight blacks” that exist that contravene the narrative. The false narrative hasn’t gone away – I’ve heard it discussed in every subsequent town hall or community event that I’ve been to over the last two years.

But if Judge Ware rules the “right” way the narrative, in my view, becomes much more difficult to justify.  In the three years since the passage of Prop 8, we will have witnessed a black president (Obama) who not only signed the repeal of “Don’t Ask, Don’t Tell” but also instructed a black U.S. Attorney General (Eric Holder) not to defend DOMA in court, a black state Attorney General (Kamala Harris) refusing to defend Prop 8.  Add on the fact that the “important” black Reverends (Jesse Jackson and Al Sharpton) and NAACP President Julian Bond have been supportive of lgbt rights for years – if Judge Ware rules the “right way,” what other black gateholders are there in opposition (and don’t tell me Hermann Cain or Kobe)?

What is the tipping point? How many more black leaders must come out in support for lgbt equality for the movement to have the confidence/backbone to claim it?

10:54: Update from Rick:

Here at the break, it seems hard to imagine how the Judge will rule that Walker had a duty to disclose that he was in a relationship.  Charles Cooper has consistently failed his clients. He put on only one “credible” (defined by Walker) witness.  He had no closing argument except to say that marriage between people of the same gender would change the definition of marriage if marriage is defined as between opposite sex people. That was his argument.
He lost.

Now he is trying mightily to put Judge Walker on trial to demonstrate that he did not fail his clients, but that he had an impossiblecase since Walker is gay. When Ware asked if Walker had a duty to disclose that he was gay, Cooper said no.  When Ware asked if Walker had a duty to disclose that he’s in relationship, Cooper said yes because that means he wants to get married. When the judge asked if all people in long term relatioships want to marry, Cooper said no, there are platonic, non-intimate relationships that are not precedent to marriage. When Ware asked if Walker had to disclose that he did not want to marry, Cooper said he did.

So follow this:  According to Cooper anyone in a long term relationship wants to get married.

10:48: Things are now in recess until 10:55.

10:39: More transcript from Rick:

W: Would only have to disclose his relationship if he wanted to marry. The long term relationship is your marker for wanting to marry.

C: We believe that would be a fact and did have obligation to disclose.

W: If he did not have a desire to marry, does not have to disclose?

C: If he did not conclude?

W:  He would not have to conclude it; he’d know it.

C:  If he had not interest in marrying his partner…

W: He’d have to dislose his lack of interest? I don’t want closeness of my questions to be seen as cavalier. I appreciate struggle you have in answering. Probably same kind of questions with race in past. Is first time judge’s sexual orientation in point.

C:  Judge Clemons in Alabama re: integration, recognized that his children’s interest. He disclosed no interest in his children’s interest in attending that school.

W: I know Judge Clemons. I don’t think that his children were even in high school. I take judicial notice that children may not know until the day they go to college whether they want to go to college or where.

10:38: From Arisha:

I love hypotheticals – Ware is using hypotheticals brilliantly, at first to touch on race and now …

He poses this hypothetical: if a female judge has a history of being raped, does she have to disclose that fact when presiding over a rape case?

A few people gasped. It’s a brilliant hypothetical because it makes a clear distinction between physically obvious biases (being a person of color or being a woman) and the more intimate non-obvious details of our lives.

I really like Judge Ware.

10:35: The colloquy is getting rather heated. Quick transcript courtesy of Rick:

10:29: Transcript of the colloquy between Cooper and Ware from Rick:

10:25: Another update from Arisha:

We’re now talking about reasonable person test. The “reasonable person test” is a legal standard that we use to judge whether someone’s action is something an average person would do.

Ware asks Cooper is there a such thing as a reasonable bigot?

Ware on a roll: do the requirements of the Constitution bind the reasonable person test?

Ware: If a reasonable person thought that a black judge had to recuse himself from a civil rights case?

Cooper: No.

Ware: Why?

No strong answer from Cooper.  Cooper now saying that a gay judge could rule on “Don’t Ask, Don’t Tell”.

10:18: A dispatch from Arisha:

The aforementioned white-haired man is now rubbing the temples of his forehead as Ware continues to challenge Cooper. Ware arguing that ProtectMarriage.com has no facts to suggest that Judge Walker actually wants to marry his partner.

Cooper attempting to argue that because Walker has been in a ten-year relationship with a same-sex partner implies that Walker wants to get married. Cooper is no longer even attempting to answer Ware’s question about Walker’s “intent to marry.” He doesn’t have this fact and is struggling to admit it. Cooper spinning: now saying that Walker’s failure to disclose proves that he wants to get married.

45 minutes is a long time before a Judge.  I bet Cooper is hoping Ware will cut this short.

10:10: Colloquy between Cooper and Judge Ware on the motion to vacate, typed by Rick:

W:  Now you are back to A which deals with recusal for any pecuniary interest.

C:  Yes. Any amount.

W:  But you use with judge. You don’t measure by outside reasonable person.

C: Nor do you measure by whether judge has actual bias. Many cases require recusal for any pecuniary interest.

W:  But what about trifling, insubstantial interest that is not finaincial?

C: That would not require recusal. Only direct and substantial personal interest in outcome requires recusal. Standard test of 9^th circuit and most if not all other courts of appeals, it is simply whether reasonable person with all facts whether judge’s impartiality might be reasonably affected.  Quotes from plaintiff’s complaint that “they are similarly situated to heteros for purposes of marriage…:”

W: What is fact you rely upon that judge walker was in a relationship for purposes of marriage?

C:  The fact that he has publicly announced that he is and has been in a relationship with another person?

W: So if you are in a ten year relationship with another person, that is for purposes of marriage?

(laughter—this Cooper is so silly. He should do a Mennen deodorant ad, though. I think he’s still dry.)

C:  Blah

W: You would concede that you could be in a long term relationship without being in it for purposes of marriage?

C: Yes.

W:  What distinguishes it?

C:  Very fact that two individuals are in kind of relationship Walker has…

W: What distinguishes between two?

C: There are platonic friendships that do not lead to marriage. [laughter]

W:  What do you mean platonic?

C: Non-intimate, non-sexual. Clear understanding of media reports…

W:  You are saying that length of relationship alone converts to marriage relationship?

C:  Yes. Bespeaks commitment.  All of these have been used interchangeably.  Take pains to say they are in long term relationships.

W: Their relief was not to stay in long term relationship.  Nothing threatened their long term relationship. Neither they nor Walker threatened. They sought to change relationship. What fact would cite to the court that Walker sought to change his relationship?

C: (Stumbles…) There are several points I would make that a reasonable person with knowledge that judge walker would be expected to have an interest in marrying his long time partner. (Thought police, please) Judge Walker similarly situated for purpose of marriage just as plaintiffs.

10:00: After announcing that he plans to deny the motion filed by ProtectMarriage.com that the tapes be returned, Judge Ware moves onto the issue of whether to vacate Judge Walker’s ruling because of his sexual orientation. Transcript typed by Rick:

W:  Disclosure, I performed same-sex marriage. This is unusual circumstance. Recusal usually directed to trial judge. He’s no longer on the bench. I am not in position to know all things that he would know so I cannot be in position to recuse. A motion of vacate is directed at me. My understanding is that he had an obligation to recuse. Failing to so do, I am judge who assumed case. I am reviewing lack of recusal.  You briefed well. Both used same cases.  I don’t know why we gave you so much time to argue under these circumstances, and we did.

C:  We approach court awkwardly and not desirous of situation. Decision must be by impartial tribunal. Ancient maxim that no man can be jduged in own case or be tried when has interest in outcome.  Congress has codified for federal judiciary which mandates recusal in any proceeding in which impartiality might reasonably be questioned.  Does judge have any interest in outcome. Requries mandatory recusal if judge owns even one share of stock of company in question. If other kind of financial interest, whether or not interest would be substantially affected by outcome.

W:  I’ve looked at two as separate.  Pecuniary interest is “any.”  With respect to non-pecuniary interest, is qualified by being substantially affected by outcome. You would put two together, even pencuniary interest is substantial. Not claiming Walker had pecuniary interest.

C: No. But true that marriage has financial benefits that flow to it for those who participate in marriage. (No shit Sherlock. That’s why you lost the case.) The test is objective. Does not depend upon whether judge was impartial. Standard is to prevent even appearance.

9:57: UPDATE: Judge Ware says he plans to deny the motion that video recordings be returned.

9:48: AFER’s Theodore Boutrous is up for the plaintiffs. Rick writes in with a transcript of the dialogue between him and Chief Judge Ware:

B: Up to chief judge to decide this.  We have copy.  Very useful. Part of appellate, en banc or Supreme Court is we end up there. Cooper makes this sound as if it is radioactive state secret. It’s an important judicial record of open court. Walker allowed us to use in closing arguments.  I was present for every minute of trial, yet I used the tapes to help prepare myself. Cooper did not ask for copies.

We used portions of star witness Blankenhorn, so many clips of him supporting our case, we had to cull. To see him testify to our side, pictures worth a thousand words.

W:  Technically, protective order only for closing arugments.  It could be that protective order could be used for closed trial proceeding. Don’t you have an issue that you are acting in excess?

B: No. Use in court and for ourselves is within protective order. We’d need permission to use it in 9^th. We have not played any video in 9^th.  We have it available. Protective order would not limit us from using.

W:  Part of trial record?

B: Officially made part of record by Walker.  Transmitted as part of record to 9^th Circuit.

W:  Transcript certified by recorded. What certifies video?

B:  Believe part of official transmittal.

W: Since part of clerk’s transmittal?

B: Yes.  And Walker relied on video in preparation for his ruling. In context of public action,very useful record.

W:  No doubt its useful. One of reasons for credibility by appellate to trial is that trial can watch and see pauses, etc. Might be some concern that appellates can see trial would hurt deference to lower courts.

B:  (Laughs) We don’t want that.  Cooper has agreed that protective order w/Walker moot. Up to you to decide. W/repsect to plaintiffs, just want video.  Look forward to arguing about public access. One thing relevant here: by attacking Walker, important for public to see.  For today, important to let us keep.

W: You have no objection to protective order as stands?

B: No.

W:  Cooper, do you believe order has been violated?

C: No.

9:43 PST: Arisha writes in with an update:

New facts.  Judge Ware was the person who first gave Judge Walker a copy of the trial recordings at a retirement/ passing of the gavel ceremony.  Ware asks Cooper if he should recuse himself? There’s an audible laugh from the gallery.

“I don’t need an answer now,” Ware continued on the issue of his recusal. The two white-haired men in front of me from the Protect Marriage side glanced at each other again and shook their heads in disbelief.

Cooper finishes.  Boutrous up now.

9:38 PST: Continuing the dialogue between Judge Ware and Cooper, typed by Rick:

9:36 PST: Arisha’s take on the dialogue:

Cooper now laying out the procedural history (the facts) that lead ProtectMarriage.com to file a motion to bury the trial recordings.

Cooper arguing that the Prop 8 case – because of its controversy – was not a strong candidate for a Northern District pilot program to broadcast the case.

Ware seemed to take issue with this characterization but allowed Cooper to continue.

Cooper now arguing that Judge Walker promised that only he’d use the tapes.

Judge Ware interrupts: The court indicated that recording could be useful to the parties for preparing for court. It’s not my understanding that Walker restricted the tapes only for his use.  The restriction is not as great as you’re describing.

Ware asks an interesting question: is Judge Walker subject to the protective order?

Cooper says that he does not think so.

Ware: can the parties use the tapes on appeal? Yes or No.

Cooper: No.

Two white-haired men sitting in front of me from the Protect Marriage side just glanced at each other and sighed as Ware was challenging Cooper – as if they were saying to one another silently (“this isn’t going well.”)

9:30 PST: Continuing the colloquy between Judge Ware and Cooper as started in the update posted at 9:27:

9:27 PST: A back-and-forth transcript between Chief Judge Ware and Charles Cooper, attorney for ProtectMarriage.com:

9:17 PST: Rick writes in as the dialogue commences:

9:14 PST: An update from Arisha:

The atmosphere today – both inside the courtroom and out – is much less chaotic than I thought it would be.  When the case was before the Ninth Circuit, everywhere you looked there was a prominent leader from both the lgbt and anti-equality sides.

Today, there’s no sign of the NOM regulars – no Maggie Gallagher, no Jennifer Roeback Morse. Is it possible that even those two women are ashamed to show their face for the shameful argument that ProtectMarriage.com is about to make?

Judge Ware has just entered the court and is giving an outline for the day. As Rick wrote, first we’ll deal with the  tapes (each side will have 20 minutes), followed by the motion to vacate issue (each side will have 45 minutes and Judge Ware noted that this is an uncommonly long time for argument).  Charles Cooper will be arguing both issues for ProtectMarriage.com and Theodore Boutrous will be arguing for equality.

9:11 PST: An update from Rick:

9:08 PST: An update from Arisha, Courage’s lawyer turned National Field Director whom many of you remember from the NOM Tour Tracker work:

A few thoughts while waiting for the hearing to start….

One thing you quickly learn as a straight African-American organizer for lgbt equality is to avoid at all costs comparisons between the lgbt and the black civil rights movements — it’s offensive to some, lesbians and gays — although they’ve faced tremendous discrimination – were never slaves, blah, blah, blah.  I’ve lost track of all the reasons over the years, but most in the movement can attest to it’s validity. (I don’t know that I agree with this narrative tactic, but that’s another blog post for another day).

As someone who has resisted this narrative, this morning I woke up with a tingly-feeling – for at least one day – in this court room the comparisons will be unavoidable. If the lgbt movement is to succeed in the federal judiciary it will do so on the backs of precedents set during the black civil rights movement.

So today, I am thrilled – the comparisons are unavoidable.

9:05 PST: This is the live thread for today’s Prop 8 hearing. Rick, Arisha and Ana are all inside the courthouse and we’re waiting for Judge Ware to come in. An update from Rick:

We’re in the same courtroom that Judge Walker used for the Prop. 8  Trial. The plaintiff’s table seems happy, even bubbly. At one point earlier a gale of laughter erupted around Ted Boutrous, the amply coiffed lead attorney for our side.  Mr. Cooper and his team sit quietly, which as I tweeted is their best case. They essentially had no case during the trial; expect them to repeat themselves.

It was much easier ot get into the courtroom and overflow this time.  While there’s interest, there’s not as much. After all, ten months ago Judge Walker smote Prop. 8 with his pen after an exhaustive trial.  This hearing is only about one thing: blaming the judge for Mr. Cooper’s loss. If they can make a big enough media circus out of the fact that Judge Walker is gay, they’ll be able to say, “see, he was biased.  That queer judge out in San Francisco ruled for his own people. “  This logic is all they have left. If the California Supreme Court rules that Cooper et al have no standing, then marriage will be legal in California. NOM/ProtectMarriage will blame the judge, whip up the money, and keep fighting.

What’s really exciting today is that they are so desperate. On the way into the courthouse today, Ted Boutrous said to me, “Every major civil rights battle has gone through this,” where they blame the judge.  Why not now?

It’s dead quiet in here.  Cooper’s table includes a total of five; our side has eight, including Boutrous, Chris Dusseaux, Therese Stewart (Deputy SF City Attorney), Enrique Monagas.

9:02 AM PST: Some photos of the rally this morning before the hearing, taken by Ana Beatriz Cholo, Courage’s communications manager:

We at P8TT are taking Christmas through New Year’s off. Golden Oldies you requested will run in the place of regular posts. Regularly scheduled programming will resume on January 3rd–Adam Bink

By Rick Jacobs

Fresh thread time. More of Judge Walker trying to get Cooper to make a legitimate argument.

Cooper: To come back to the immutability case, the 9th circuit said, “sexual orientation is not immutable.” Against the Supreme Court cases, we know of no case that sexual orientation meets heightened scrutiny. The characteristics of immutability simply do not apply to sexual orientation. Behavioral, attraction and self-identity are the three definitions that the plaintiff’s experts used and depending upon which you use, a different group falls into that, so the definition is not clear. The plaintiffs made clear that sexual orientation does change over time, especially in women. Peplau commented on the “astonishing elasticity” of women, whose sexual orientation changes many times over their lifetimes. Some 2/3 of women who identify as homo have changed their orientation at least once and 1/3 more than once over their lifetime.

C: Goes to Supreme Court question of immutability. Justice Ginsberg says, “Immutability is tightly cabined. Goes solely to accident of birth.” Heightened scrutiny goes to race, gender, illegitimacy, all accidents of birth. Ginsberg says, “Doesn’t say something can’t be changed.”

Judge: Does this have to do with national orientation?

C: Yes.

J: Sometimes of the year everyone is Irish. (Laughter). People may choose via an ancestor to have a national origin. These questions of immutability are not key.

C: Well, we then look at political powerlessness. We submit that gays and lesbians are not politically powerless as Dr. Segura says. Clearly in the Cleveland case in regard to mentally disabled, does the group have the ability to attract the attention of the lawmakers? 20 years ago in “high tech gays?” the court ruled that gays and lesbians can attract the attention of legislators. As Dr. Segura testified, since that time there has been a sea change.

J: Isn’t that the most important factor, the historical context? Women are hardly politically powerless, yet a law protects them, laws that single them out subject to strict scrutiny. African Americans have considerable power and yet a law that singles them out is subject to strict scrutiny. Isn’t the historical context what makes the point?

C: It’s an interesting question. Here’s a group whose political power has changed so dramatically (women). In 1970 and 1973 when the court had before it the political power of the group (women) needed extraordinary protection from a majoritarian electorate so they needed protection. At that time, only 2% of the offices held by them but 50% of the population. That’s not the case with gays and lesbians in California.

J: The DOMA Statute that has been mentioned, Prop. 8, exclusion of gays and lesbians from military for a long period of time, all indicia of discrimination?

[UPDATE 3:00]

J: P8, these other props in other states, the exclusion of gays and lesbians from military service – aren’t those all indicia of a long history of discrimination?

C: We have never disputed that gays and lesbians have been the victims of a long and shameful history of discrimination. Thankfully, the situation today in 2010 is not what it was in the past. The fact of a history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny.

The question of political powerlessness was very different 20 years ago, but the 9th Circuit nonetheless believed that gays and lesbians could attract the attention of the lawmakers; thus, it follows that it must be true today.

Even though mental disability is an immutable characteristic, the disabled could not qualify for heightened scrutiny because the court found that they had political power (could attract the attention of lawmakers), sure they had to rely on allies to create that political power. If the mentally disabled weren’t politically powerless, I would submit that gays and lesbians are definitely not powerless. I submit that Court’s that have decided against heightened scrutiny have been correct.

Long pause….

j: Why should Mr. Blankenhorn’s testimony qualify as expert testimony. Does he meet the standards?

C: I submit that he does. I don’t have anything to add to the submission we made earlier. Under the 9th circuit standard of the qualification of an expert, he is amply qualified. His professional life for 20 years have been devoted to the study of marriage – the potential parenting structures, the potential for harm to marriage due to a variety of social phenomena, including same-sex marriage, he’s written books that have been received with respect by recognized experts.

J: Were they peer-reviewed?

C: No.

J: Am I correct that the only peer-reviewed article of Blankenhorn was not on the subject of marriage?

C: Sir, as I stand here right now. I don’t know…don’t remember.

J: Fair enough.

C: I didn’t come here prepared to argue that particularly. May I request a 5 min break?

J: Why don’t we take 10 minutes….back at 3:10.

[UPDATE 3:27] from Rick

(Here’s a bit of commentary and some color from the break while Arisha does the hard work.)

Bruce Cohen, the Academy Award-winning producer and key figure behind this case, said to me,” Can you believe that they are pointing to the one court ruling banning gays and lesbians from adopting (Florida) as their standard?” As Bruce said, there are only two states that ban adoption by gays and lesbians—Florida and Arkansas. Yet Mr. Cooper is saying Judge Walker should refer to that ruling for guidance here.

Kris Perry introduced me to her two wonderful, poised teenage sons. I also had the honor of meeting Kris’s mother. Of course ___ Steer was right there, wondering with all of us what Mr. Cooper is really filibustering about. Can you imagine being the subject of this case and having your kids and your mom sitting there with you throughout all of this? Imagine these young fellows, who have such wonderful, loving, caring parents, hearing a high-powered, gray-haired lawyer pontificating about how horrid lesbian mothers must be? I really can’t. It’s not removed at that point.

One distinguished lawyer (not on the legal team) said, “The only thing he has is the strict scrutiny test which has never before been applied to marriage equality.” He went on to say, “What he said about Loving is bullshit. The only reason society had to prevent black and white people from marrying was procreation. Society did not want mixed-race kids.” That’s right. Society did not want Barack Obama to be born.

Cooper has surrendered, really, on all of the other issues. He’s trying to say immutability is not assured, but the judge pointed out that that does not really matter here. And even though the judge keeps bringing this back to marriage as a right vs. sexual orientation, he keeps trying to say it’s about sexual orientation because that is his canard.

Short notes: Maggie has her shoes on. Lance Black is watching intently, having not been absent for a second of this. And there to my left is the (oxymoronic) Protect Marriage gang that sued us in January for having a logo that they say is indistinguishable from theirs even though ours has two women with two children instead of a man and a woman. That’s the point of the whole thing. There’s no difference. It’s about the right to love.

[UPDATE 3:33]

C: The US Supreme Court in Crawford vs. Bd. Of Education in 1982 upheld a California constitutional amendment that reduced the remedial tools given to the courts in the school segregation area. In that case the court rejected the contention that once a state chooses to do more than the 14th Amendment requires that the state could not return the “lower” federal standard.

J: What do we make of that in the context of this case? What baring does that have?

C: The California Supreme Court’s interpretation that we believe goes beyond the 14A, was something that the people of the state were empowered to reverse. The people of California are the ultimate appellate tribunal of the California Supreme Court. The Court’s decision was no more final in the state of California than the Appellate decision that upheld Prop 8. It was reviewed by the ultimate, judicial tribunal and the judgment of the Supreme Court in Crawford is on point here.

C: I also want to address whether there is a legit basis for California citizens to be concerned that redefining marriage to include same-sex couples, does not show concern for the potential harm to the institution of marriage or show respect for the role that marriage is supposed to play (procreation, again). Redefining the institution will change the institution. Blakenhorn, our expert, said if you changed the definition of a thing, it’s hard to imagine how it would have no impact on “the thing.” Others have acknowledged that change will result. [He quotes a few “experts” who believe gays marrying will change the institution.] Redefining will divorce the institution of marriage from it’s core procreative purpose. It is not possible to predict with certainty what that change will beget. It seems undeniable that change as profound as this one, would have some consequences. The plaintiffs think that the consequences will be positive; we respect that point of view, but it’s not something that they can possibly prove – and their own expert (quoting Cott now) agrees that we can’t predict. Andrew Churling, a sociologist and equal marriage supporter, also states that “predicting the future of marriage is risky business.” He cites as example the fact that no sociologist forecasted the baby boom during the Great Depression; no sociologist predicted the rise of co-habitation.

Let me say 3 words that I haven’t said that often. “I don’t know.” Jokingly, I wish I could have those words back. Because usually whatever your question is, “I damn sure know.” Courtroom laughs.

J: What about Blakenhorn’s testimony about the negative outcomes that will result if gays can marry?

C: Blakenhorn was giving voice to sentiment that the threat of harm to vital social institution is too daunting to run the risks of gratifying what would otherwise favor the advent of same-sex marriage. There are many who went to the polling place with that sentiment – that’s my speculation. There are millions of Americans who believe in equality for gays and lesbians, but draw the line at marriage. Their hearts are pure – as pure as the plaintiffs – but they still believe that this is profound…could be profound. It could portend some social consequences that would not be positive and that reality

C: No one can know what tomorrow will bring. If there is a legitimate and rational basis to be concerned about that, couldn’t be more rational for people of California to say wait. We want to see what happens in Mass. and here. Perhaps Mr. Olson and his client’s whose sentiments are powerful (he’s speaking very haltingly) will be able to convince their fellow Californians they are right.

J: A disability has been put on marriage. Do you not have to show that there is need, that it’s enough to impose on some citizens a restriction from which others do not suffer? Is it enough to say “I don’t know?”

C: Yes. In looking at what society’s interests are and interests in regulating and caring and about marriage, if there is no basis for drawing a distinction from one to another, the distinction can’t stand. But if there is s distinction, it must stand. It’s been our position from the outset that we do not have to prove that exclusion of gays and lesbians from marriage is a problem; we only have to prove that inclusion of those people would erode marriage.

J: Would you wrap up?

C: Yes. (Pause) The California court (missed which one) goes to the heart of the matter. It is the proper role of the legislature to set priorities and make difficult and imperfect decisions and approaching problems incrementally.” That process is at work in this state and the county. As the court considers this, there is a debate about the morals, the practicalities and the wisdom that really goes to the nature of our culture. The constitution should allow that debate to go forward among the people. Thank you.

J: Thank you Mr, Cooper.

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Welcome to the live thread for the 9th Circuit hearing of the Perry v. Schwarzenegger case appeal. If you Googled “Prop 8 trial” for coverage and found yourself clicking on the first search result, welcome to Prop8TrialTracker.com!

Today, we’ll have four P8TT folks covering the hearing. I will be live-blogging the coverage and running the show here at the P8TT mothership; Courage Chair/Founder Rick Jacobs, who helped make P8TT the go-to spot by live-blogging the Judge Walker hearing from the courtroom, and Field Director Arisha Michelle Hatch will be sending in dispatches, including photos, from their seats in the courtroom and at the events outside prior to the trial commencing; and P8TT legal analyst/Calitics blog publisher Brian Leubitz will be adding legal analysis in this thread. I will also be occasionally live-tweeting via my handle @adamjbink. You can also follow @rickjacobs, @equalityontrial and @couragecampaign for updates, as well as Equality on Trial on Facebook. And of course, we look forward to dispatches in the comments from commenters Kathleen, Ann S. and other folks who will be there, and thoughts from the rest of you!

As a reminder, the first hour will be spent arguing the issue of standing, and the second hour on the issue of the constitutionality of Prop 8 itself. All updates you see are from me unless noted otherwise. New updates will scroll from the top.

12:46: The court stands adjourned. Stay tuned for more analysis here.

12:45: Cooper concludes by quoting from Romer re Amendment 2 in arguing that Amendment 2 went too far in singling out a class of people, but the effort to “protect” marriage does not.

12:43: Brian’s take on Olson’s closing arguments:

In the record, there has been no showing of harm. Could distinguishing marriage from Dps in name only, that it is rational to encourage safe procreation? That would still not be a rational basis. The word is the institution, but children are not shown to be better off.

The California system is irrational, because there are different classes. Heterosexuals can marry. Some homosexuals are allowed to be married if they married in 2008, but they can’t even remarry the same person if divorced.

The citizens of California who are behind one fence, gays and lesbians, can not take part in the institution that everybody else can. (Marriage) That is not allowed under the Constitution.

Question: Can we go beyond California? Can we go beyond the Roemer rationale, that is taking away a right?

Olson: Yes you can. You can go beyond California, and the Roemer rationale. It can not be justified under any standard. All of the arguments are neither rationale nor Constitutionally permissible.

12:42: Cooper will spent a few minutes rebutting. Starts out by saying that if Loving wanted to marry the man with whom he had sexual relations and the case was brought on those grounds, it would not have been ruled the way it was.

12:38: Therese Stewart, Chief Deputy City Attorney from the City/County of San Francisco steps up. The crux of her argument is that the only reason behind Prop 8 is animus towards same-sex couples- there is no rational basis. Notes that CA family law treats gay/straight couples as the same. Equal protection doesn’t allow the state to enact a measure based on a view that some people are unworthy. Her time spent arguing is short.

12:30: A quote from Olson so spot-on I typed verbatim (first part): “California has taken a class of citizens and put them in a separate category; that act of discrimination and there is no doubt that it is discrimination and there is no doubt that it does great harm, can it be justified under any standard of constitutional analysis and I argue it cannot be justified at the lowest standard of constitutional analysis.” He concludes his argument on an extension of this point.

12:28: Olson describes the “crazy quilt” of California laws e.g. some s-s couples who married can stay married, but if they get divorced they cannot get re-married, etc. in arguing that the current marriage system violates equal protection and due process under the 14th Amendment.

12:25: Brian dropped in this summary of the last 10 minutes or so:

Olson: Taking away rights because of their identity as homosexuals violates Crawford in light of Roemer. How can a constitution right be taken away because of the constitutional activity under Lawrence, sexual activity? It cannot be taken away because of their orientation. It discriminates on sex and sexual orientation. Proponents have come up with no rational reason to repeal decision.

You can’t wall off a right because children shouldn’t be exposed to sexuality. It just doesn’t stand up to even the lowest level of rational basis.

In Roemer, Justice Kennedy said that the reasons behind the measure must be rational. Reasons cannot come out from the sky.  This is an important aspect of the “heightened” rational basis test emerging from the jurisprudence of Justices Kennedy and O’Connor.  Essentially, the reason must come from the record, and from the background of the measure.

12:22: Olson argues that gays/lesbians having immutable characteristics + the damage done by discrimination= heightened scrutiny in this case. Can’t name any damage that would be done. Smith interrupts. Cites a number of various pro-Prop 8 arguments (children likely to thrive when raised by both father and mother, etc.) and asks if that would survive the rational basis test. Olson challenges such an argument re children/mother/father and says it’s easy to say those things, but “the remedy doesn’t fit the so-called problem… 30K children in same-sex households today… if you had s-s marriages, it doesn’t change where the children will be raised.”

12:16: Hawkins asks about the pro-creation argument that Cooper made. Olson replies that same-sex marriage will not keep opposite-sex people from getting married, getting divorced, having kids, etc. Points to Cooper’s concession “I don’t know” when asked in the lower court case what harm there would be.

12:13: Olson cites Lawrence v. Texas in arguing that a Constitutional right be taken away because of a Constitutionally protected “activity.” It’s not just a right of same-sex persons, it’s a right of all individuals. Ridicules pro-Prop 8 supporters’ argument that opposite-sex marriage must be protected in order to protect kids, saying if that were a sound justification, we  should all be banning video games, comic books, and the like.

12:07: Olson deries Cooper’s discussion of “society’s interest in procreation.” He says rights are not California’s right, or the voters’ rights, but individual rights under the 14th Amendment, and denying marriage could take that away. Very sharp point.

12:04: Olson continues, the In re Marriage Cases makes all this (Prop 8 itself) worse. Olson says Cooper’s definition of marriage is wrong. Notes US Supreme Court has never said marriage is just between man and woman when ruling in the context of prisoners, contraception, divorce, other cases that marriage is (a) liberty (b) privacy (c) association (d) identity. Notes Supreme Court has said this 14 different times.

12:01: Ted Olson steps up to the plate. Off the bat, plainly notes that CA voters have enshrined discrimination into the Constitution. Voters have “denied access to what the Supreme Court has noted is the most important relationship in life.”

12:00: Brian Leubitz notes to me over e-mail, “The argument seems to be boiling down to the word. This is shaky ground for Cooper. He is now arguing that marriage (the word) is just special. He is arguing that marketing is somehow enough of a reason to discriminate. Cooper and Smith are going back and forth, looking at Roemer, and whether states can be damaged constitutionally by acting towards giving rights.”

11:59: Smith asks whether a state that doesn’t have domestic partnership benefits has a stronger argument for rational basis. Cooper says if this case is to be decided be “heightened scrutiny”, then it is a harder case to make. This concludes his remarks. Is given 2 minutes for rebuttal by the judges.

11:54: Reinhardt asks, isn’t it different when you take [marriage] away than when you’re giving it? Cooper replies that the people of California are “a tribunal over their Constitution.” Hawkins asks if this were about civil unions, would Cooper have the same argument? Cooper says yes. Hawkins asks if people denied the right of same-sex partners to visit one another in the hospital and had added that to the ballot language in Prop 8, what would Cooper say? Cooper replies that if rights “go beyond” what’s in the federal constitution, then the people have the right to return to what’s a general standard in all states- and that seems to be Cooper’s argument re what the people of California are doing here.

11:46: For those of you following along here and not watching, a quick image of what this all looks like (Cooper arguing):

11:44: Cooper seems to be arguing that the courts should respect the will of the people in passing Prop 8, and that in California, the people retain the ultimate power, so courts should defer when voters vote to amend the Constitution. Reinhardt acknowledges that the Constitution can be amended, but asks if there is a valid reason to amend the Constitution.

11:42: Brian’s legal analysis of this section:

Cooper: The central point is that the distinguishing characteristics of opposite sex couples. We are arguing that the rational basis test applies. There is some rational basis, so it must be upheld. Only if the court concludes that there is no rational basis, that there is nothing to say of the definition of marriage from time immemorial, there is no rational basis. But, we have a rational basis. The key reason of marriage was procreation. Society has an interest in a sexual relationship. It needs another generation. Society is threatened by an unintentional and unwanted pregnancy.

Cooper is bringing up the concept that “single parent families” need help. This is fascinating, and really, nowhere in the record.

Judge Reinhardt: That sounds like a good argument for prohibiting divorce. How does allowing marriage equality damage procreation.

Cooper: Opposite sex couples can procreate unintentionally, and create unwanted pregnancies.

Judge Smith: What is the purpose of the initiative that says they have the same rights as opposite sex couple, but they don’t get the title. What is the rational basis for just excluding the word marriage.

Cooper: The word is the institution. If you redefine the word, you change the institution. Historic Tradition.

11:39: It is difficult to follow Cooper’s argument- he is talking himself in circles. Or as Rick put it well to me, the only case he has is a tautology: marriage is between a man and a woman. If it’s not between a man and a woman, it’s not marriage.

11:36: Cooper replies that Amendment 2 (as passed by Colorado voters) was different because it was a sweeping case that affected all basics of civic life for [homosexuals] and that’s why it was struck down in Romer v. Evans.

11:35: Hawkins asks about the famous Romer case. Cooper replies that that case referred to a lot of rights. Hawkins interjects, if you take away a bunch of rights, it’s not okay, but if it’s one right [marriage], then it’s ok? Very interesting point from Hawkins and promising to see him say that.

11:33: Reinhardt asks why same-sex couples shouldn’t be allowed to be married and live together in a happy, healthy home. Cooper replies that same-sex couples cannot procreate w/o a 3rd party and that’s the rational basis. Smith asks what the rational basis is to deny marriage, if same-sex couples have all the rights that opposite-sex couples have, and we’re left with the word “marriage”. Cooper discusses re-definition of “the institution”. “You cannot separate the two” [referring to the name and the institution]. If we do, what we are left with is a genderless institution that bears no comparison to the real institution of marriage.

11:28: Cooper says a rational basis test must be applied here. There is a rational basis to limit definition of marriage to opposite-sex couples and it must be upheld.

11:25: And we’re back. Cooper is up to address the constitutional issue. Hawkins asks if people of California could re-institute school segregation by vote. Cooper concedes no, because the Supreme Court has ruled that’s unconstitutional. Hawkins asks how this situation is different. Cooper replies that this case is nothing like, for example, Loving v. Virginia, where the Supremes ruled that there is no rational basis for the gov’t to deny the right of a mixed-race couple to marry. It’s interesting that Hawkins led off with that.

11:14: While we’re on recess, Rick notes over e-mail to me that this is also the courtroom in which en banc hearings take place because it’s so gorgeously ornate. The losing party can appeal to the full 9th Circuit and obtain an en banc hearing of 11 judges.

11:07: Ten-minute recess before the 2nd hour addressing issue of constitutionality. Lots to process.

11:06: Cooper is back up. He says Reinhardt nailed distingushing Karchner and Arizonans. Nobody in Arizonans found any law that showed proponents could appeal. Cooper brings a State Court Supreme Court, the Strauss case. The proponents were allowed to intervene in Strauss. He says if 9th Circuit doesn’t agree with him on standing, then they should ask CA Supreme Court before dismissing this case and allow a single district court decision (Judge Walker’s ruling) to nullify the will of 7 million Californians.

11:04: Here’s Brian Leubitz’s summary:

Boies: CA Supreme Court gave a one sentence denial as to forcing the AG to appeal, there was no rationale provided.

No clerks are technically bound by the injunction, save Alameda or LA. However, the remainder of the state, the power to execute the laws go to AG and Governor. The deputy clerks will be required to act by the AG and Governor. Clerks are ministerial, as defined by Lockyer case. They are required to act as the Governor and/or AG tells them. Thus, the deputy clerk of Imperial County should not be allowed.

Nullification Question: Does AG and Governor not defending nullify the people’s decision in the form of Prop 8? Boies says no, because they have seen the district court’s decision and are not bound under California law to seek further decision. The Supreme Court could have required AG action, but did not do so.

Scope of the injunction:

Boies: If the court concluded that the district court exceeded subject matter jurisdiction, but Boies is not aware of any precedent to edit the injunction. He is relying on AG to affect the injunction. The injunction goes to those who are controlled by the defendants, in this case the AG.

11:01: Boies wraps up by saying this case is similar to In re Marriage Cases. Proper “respondents” are AG, Gov, legislature. Appellants here do not have a particularized injury that the Supreme Court said you must have.

10:57: Reinhardt asks, doesn’t the injunction affect all those who act to perform the marriage (e.g. doesn’t it cover Vargas, the county clerk, and therefore she has standing?). Boies: The injunction itself didn’t go as broad as it might have, so no. Caveat, we haven’t talked about the registrar, who will under this injunction, have to change the form and content of the marriage license. Boies also notes that CA Supreme Court could have ordered the Gov/AG to intervene and defend, but didn’t.

10:55: Reinhardt jokes that if Boies has to depend on the AG and Gov (to not appeal), he’s lucky the [2010] election came out the way it did. Ha.

10:52: Boies notes that one does not have standing to act as defendant unless he/she/organization has “personal, concrete, or particularized injury.” Which, he’s arguing, an Imperial County clerk and ProtectMarriage.com does not have. He notes that U.S. Supreme Court has ruled in this manner over and over.

10:51: Boies notes that in the Arizona case, Justice Ginsburg said proponents aren’t authorized to act under state law.

10:45: Boies replies, citing other California-specific cases in which proponents did not have standing. Reinhardt suggests that perhaps the 9th Circuit court should ask the California Supreme Court about what the standing law is. Notable: “The fact that there’s no one to defend doesn’t give standing [to the defendant-intervenors].”-Boies

10:42: Smith continues that the governor has an effective veto if he does not appeal.

10:41: Smith discusses how if Prop 8 (and all initiatives) could not be vetoed or amended by the legislature, right? So if that’s so, the AG’s actions and Gov’s actions have nullified the basic efforts of the initiative to be placed on the ballot and to obtain passage. He’s arguing that if Jerry Brown and Schwarenegger didn’t appeal, they effectively nullified it.

10:39: Boies is arguing that because all the clerks are ministerial officials who simply issue marriage licenses to whomever the state determines gets marriage licenses, that function will be the same now or later. Meaning, their duty will not be impacted, as Tyler is arguing.

10:37: Boies: Lockyer tells that county clerks are just “ministerial officials… who must apply the law as set forth by the AG’s office and the  government.”

10:33: David Boies is up. Bring it, Boies. He is quickly asked if Judge Walker is wrong about the registrar controlling the functions of county clerks and she is not bound by the injunction, and if she is not, how does she have standing? Boies says that’s correct, and she does not have standing. Reinhardt asks, are the clerks of Alameda and Los Angeles counties bound by injunction? Boies says no. Marriage is a statewide, not local/municipal, concern. Hawkins asks if the injunction was enforced, could county clerks refuse a marriage license to a same-sex couple. Boies says yes, but if she did so, the AG would act to make the enforcement uniform, which would be a state proceeding.

10:30 Brian sent in his analysis of the last 15 minutes:

Robert Tyler: Attorney for Imperial County, actual client is a deputy clerk.  Their client is Ms. Vargas, a deputy clerk.  Judge Hawkins is grilling him on whether Imperial County even has the right client.

Judge Smith: “All political functions remain vested in an officer.” Imperial County doesn’t have authority to act without the clerk. Here, the clerk has not given power to the deputy clerk. Deputy is a mere agent, and cannot act without the clerk.

The judges are looking at whether the deputy clerk is bound as a state officer. But the bigger issue seems to be that the Imperial County intervention doesn’t actually have the clerk here.

“When you are asked a question, and you don’t know the answer, say so.” Highlight of the day.

10:29: Closing up, Tyler argues (the crux of his case) that the county clerk will be affected by the outcome of this case, which will alter Vargas’ (the county clerk) duties as she is placed in a conundrum. Hawkins asks, yes or no, whether Vargas is bound by Walker’s injunction (pointing out that she isn’t placed in a conundrum). Tyler concedes no, she is not.

10:28: Reinhardt asks if Board of Supervisors agrees with the Imperial County clerk. Tyler says yes, in fact she is appointed by the BOS. Then he’s handed a note saying, no, she’s elected, and tells the judges so. Whoopie.

10:26: Reinhardt is lambasting Tyler for not knowing the answers and instead of saying he doesn’t know, jumping around the issue. Hawkins asked if a deputy clerk in Los Angeles or Alameda county come in and seek standing, saying they don’t agree with “my boss”? Tyler says yes. Hawkins asks, humorously, how long they would last taking such an action? Ha.

10:24: Interesting exchange:

Judge Smith: Are they state officers performing state functions?

Tyler: No, they are local officers performing state functions.

S: How do I get around the language [in what I'm reading] that they ARE state officers?

T: They are performing state functions, e.g. marriage.

S: So they’re state officers if they do that?

T: I don’t know if that’s what the case turns on. This case turns on whether her duties will be altered as a result of this outcome of the case.

Reinhardt: Clerk is not attempting the court to get the ruling. In Lockyer, it’s the opposite.

T: In Richardson v. Ramirez, there were 3 clerks who were sued. SecState required registration by felons in order to vote. In that case, a local county clerk was able to take the case when there were no other defenders. Same thing here! We have a case where there is a county clerk wanting to intervene who will be affected by the outcome of the case.

10:18: Robert Tyler, arguing for Imperial County to have the right to have standing for representing the entire state. He is getting pressed hard by Judge Hawkins on whether the individual he is representing (the clerk in Imperial County) actually has the ability to act, which Judge Smith is appearing to concur with.

10:14: Brian Leubitz, P8TT’s legal analyst, sent in the following analysis:

Cooper: Looking at two standing issues. First, the big issue of whether the 9th Circuit, the standing issues that we’ve been talking about for a while now.  However, Cooper is interested in looking at the district court jurisdiction as well.

On the 9th Circuit: Cooper is looking at a New Jersey case that was decided before Arizonans for Official English.  The big question here is whether proponents of a measure have standing, and Cooper is asked as much.  His response is rather stunning:  “I don’t have a case to show Article 3 standing for proponents.”

Now, in Arizonans, Justice Ginsburg says that proponents do not have Article III standing, that is to say whether they have standing under the judiciary article of the Constitution.  Cooper is trying to avoid that comparison, by pointing to the prior New Jersey case (Karcher).  In Karcher, the Legislative officers were given standing.  As noted, Karcher was before Arizonans, so it must be read in context of Arizonans.

Cooper is pointing to the Strauss case in state court, where the proponents successfully defended Prop 8 in state court.  The California Supreme Court allowed proponents to defend Prop 8, but blocked other anti-equality groups from intervening, showing that proponents have special standing.

10:13: Cooper finishes and would like to reserve the balance of his time  for rebuttal, which is granted by Judge Reinhardt.

10:11: Cooper is asked if he sought to enjoin the case. He replies no. He notes that the NJ Attorney General declined to appeal the case (Karcher v. May), just as the CA AG (Jerry Brown, currently) declined to appeal. And yet the Supremes noted that the NJ legislative leaders did have the authority and were the proper parties not just in the trial court, but in the 3rd Circuit. He continues, when no one else would defend the statute in the Strauss case, the only party defending the constitutionality of the statute in Strauss were the proponents. In the marriage cases, at the court of appeals level, court of appeals denied intervention to a group that was not the official proponents, but made no ruling whether the official proponents in the default of the state officials would be authorized to come in and represent the state’s statute.

10:06: Cooper is asked if he knows of any California law that allows Article 3 standing. Cooper argues that the Strauss case is similar. Judge interrupts and notes that Strauss only talks about proponents as agents of a proposition, not as agents of the state, which defendant-intervenors are asked to do here. Cooper is being interrupted repeatedly and pressed hard to make the case that this case is similar to the ones he is citing.

10:03: Interrupted and asked to explain the case further, Cooper is asked for the “best case” example of a federal case re allowing proponents Article 3 standing. Cooper says he doesn’t have one, but this is the one he’s bringing forward.

10:00: Charles Cooper gets up to speak. He notes that the two “jurisdictional” issue at stake, as we all know, are (a) standing (b) constitutionality. With respect to the standing issue, he notes a Supreme Court case in which New Jersey state education officials were required to defend the moment of silence statute. The court allowed the Assembly speaker/Senate president on behalf of the legislature to defend the state’s interests on the statute. Supremes rejected the claim that they did NOT have standing. Reason is b/c NJ Supreme Court previously allowed the legislative officers to intervene on behalf of the legislature to represent the state’s interests in a redistricting case.

9:59: And here we go. Gavel and all rise.

9:54: Arisha writes in that about 20 members of the public who got up early enough were lucky enough to gain entrance into courtroom one to watch the historic hearing live. Evidently, some staunch equality supporters began lining up at 4 am to get a seat. Other hopefuls are being sent into several media overflow rooms
to view the hearing. As a reminder, you can watch on C-SPAN, the California Channel streaming online (which now has images of the scene Rick describes below).

9:39: Arisha writes in that there are six total attorneys for the plaintiffs (us) and three for the defendant-intervenors.

9:38: More on the scene inside the courtroom from Rick (for those of you who are wondering why the verbal description, they don’t allow photography inside the courtroom):

9:14: Another dispatch from Rick on what things are looking like inside: “We’re in the courtroom.  It’s a small room, with baroque, vaulted ceilings, oranate plaster arches that surround three deep hued mosaic images of the history of justice in this state.  Arisha and I are seated in the first two seats of the front row right behind the plaintiff’s family.

9:07: I’ve got photos rolling in from Arisha I’m starting to get up. Here’s Paul Katami, one of the plaintiffs, with AFER at a pre-trial presser:

And crowds of marriage equality supporters:

Also, it’s our very own Kathleen along with Ann S. from the comments!

And Alan!

9:06: Rick sent in the following: We are in line now behind the plaintiffs and lawyers waiting to check in. A half dozen satellite trucks, a hundred or so at a demonstration for our side. A huge garbage truck just went by and fog horn honked in support of our side. Standing next to Imperial County lawyers who said, “we’re in a funny position. We’re defendants but we’re not part of the case.” To which another apparent lawyer said, “tell me about it. We’re here to uphold the law.

9:05 AM PST: A few more items of note before the trial starts in less than an hour.

• If you missed yesterday’s preview of how things will proceed to today, you can find it here.

• A few months ago in the period between the Walker ruling and today, we had NCLR’s Shannon Minter (who was the lead attorney on the original 2008 In re Marriage Cases, the case striking down restrictions on same-sex marriage at the California Supreme Court) and deputy Chris Stoll stop by to answer your Prop 8 legal questions on standing, appeal process, timeline, what strict scrutiny means, and more. If you’ve got a question about what’s coming up, you can probably find that question answered in the thread.

• My colleague Chris also has some useful FAQ on potential outcomes.

• The defendant-intervenor brief filed for this hearing can be found here. The response brief filed by Olson/Boies et al can be found here.

• NOM has their own questions for the hearing. And of course, you can leave a comment telling them what you think.

• If you’re feeling nostalgic or want some feeling for how courtroom back-and-forth may go, you can read Prop8TrialTracker’s live-blogging of the original hearing with Judge Walker from inside the courtroom itself. All those threads can be found here. That was the trial that led to more than 4 million pageviews and 80,000 comments here.

• Recalling that Judge Walker struck down Prop 8 on both equal protection and due process grounds, it’s worth recalling Judge Walker’s conclusion in his ruling as we enter this one: “Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.” On due process: “Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”

The defendant-intervenors filed their written arguments to the U.S. 9th Circuit Court of Appeals shortly after 9 p.m. PST — just 3 hours before the court’s deadline. We will be posting it here ASAP.

According to Lisa Leff at the Associated Press, it targets Judge Vaughn Walker for being “egregiously selective and one-sided.” More to come.

UPDATE: Here it is (h/t to both Kathleen, in this thread, and Ann S. in the previous thread, where the news broke almost immediately in the comments):

More from the Associated Press:

In written arguments to the 9th U.S. Circuit Court of Appeals, lawyers for the ban’s sponsors alleged that Chief U.S. Judge Vaughn Walker “quite willfully” disregarded a 1972 U.S. Supreme Court precedent and other relevant information when he decided the voter-approved measure was an unconstitutional violation of gay Californians’ civil rights.

“The district court based its findings almost exclusively on an uncritical acceptance of the evidence submitted by Plaintiffs’ experts, and simply ignored virtually everything — judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive historical and documentary evidence — that ran counter to its conclusions,” they wrote in their 134-page opening brief.

UPDATE: Trial Trackers are quickly digesting the document and posting their thoughts in the comments. Below are some of the best comments posted so far.

James UK:

I’ve just read the Proponents brief. The problem I think that they have is the cursory treatment given to Lawrence v Texas, and to a lesser extent, Romer v Evans, which cases have so changed the landscape regaring the classification of lesbian and gay people, to the extent that Baker v Nelson is unlikely any longer to be good law. Whilst Lawrence specifically did not mandate recognition of gay marriage, which it could not and was not required to do, since the subject matter under discussion was a Texas criminal statute, it did not foreclose such a finding in future cases. It merely left that argument to be made in future cases. Lawrence did not apply standard rational review. It applied some higher level of scrutiny, whether rational review with bite or intermediate scrutiny. Thus the Propents complaints on rational basis review are probably nothing to the point.

The brief is noticeably silent on Justice Scalia’s dissent in Lawrence too, where he asserted, rightly, that if moral approbation was not an acceptable basis upon which to legislate against lesbians and gays as a class, then same sex marriage could not be prevented either, because procreation was not and never has been a requirement for marriage.

Justice Ginsberg’s recent note in Christian Legal Soc v Martinez that the USSC”s recent jurisprudence does not distinguish between behaviour and status as regards lesbians and gays also goes unmentioned.

“Lightning Baltimore” posted this gem of a quote from page 33 of the brief:

The State, it follows, “has no obligation to produce evidence to sustain the rationality of” its laws. Heller, 509 U.S. at 320 (emphasis added). To the contrary, the State’s “legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”

Here is Kathleen Perrin’s response to the above quote:

It’s true that it can be based on rational speculation…. but the key word here is “rational.”

IF the standard of review is only “rational basis”, then the court can actually come up with its own rationale for the law, even if the parties have not presented one. However, neither the Proponents nor Walker could come up with any justification for the law that was “rationally related” to a “legitimate” government interest.

Anonygrl:

They wrote: “The trial proceedings were skewed from the outset, given that four of Proponents’ expert witnesses refused to testify…”

Basically they are claiming that the fact that the judge videotaped the proceedings EVEN THOUGH NOT FOR BROADCAST scared away the experts. And THAT is why they had no evidence! The fact that they were unable to explain properly to their own witnesses that this was for court records, not broadcast is why this should be overturned.

This leaves me somewhat speechless. I think that Olson and Boies must be laughing their asses off somewhere right now, as they read this.

UPDATE (h/t to Kathleen): Imperial County just filed their brief on the standing issue:

Finally, AFER released the following statement shortly after the Prop 8 legal team filed their brief earlier tonight:

OFFICIAL PROP. 8 PLAINTIFFS’ STATEMENT ON TODAY’S 9th CIRCUIT FILING
Statement from Chad Griffin, Board President, American Foundation for Equal Rights

“Regardless of the defendant-intervenors’ protests, the fact remains that Proposition 8 is unconstitutional, as was proven conclusively and unequivocally through a full federal trial. There is no getting around the fact that the court’s decision was based on our nation’s most fundamental principles, and that the Constitution does not permit unequal treatment under the law,” said Chad Griffin, Board President of the American Foundation for Equal Rights. “We are eager to proceed with affirming the unconstitutionality of Prop. 8, and the equality of all Americans, in the Ninth Circuit and the Supreme Court.”

The American Foundation for Equal Rights is the sole sponsor of the Perry v. Schwarzenegger case. After bringing together Theodore Olson and David Boies to lead its legal team, the Foundation successfully advanced the Perry case through Federal District Court and is now leading it through the Ninth Circuit Court of Appeals before the case is brought to the United States Supreme Court.

The plaintiffs in the case are two couples — Kris Perry & Sandy Stier and Paul Katami & Jeff Zarrillo — who wish to marry but cannot because of Proposition 8.

Kris and Sandy have been together for more than ten years and their family includes four boys. Both are in public service — Kris leads a childhood health and education agency and Sandy works for a county health department. Their home life centers around their kids, with PTA meetings, soccer and music lessons taking up much of their free time.

Paul and Jeff have been together for nine years. Jeff is a general manager for a movie theater company and Paul is a business owner. They own a home together and are proud uncles.

Leading civil rights organizations, legal scholars, doctors, scientists, and religious organizations filed amicus briefs in support of the the Foundation’s case, including: the California NAACP, Mexican American Legal Defense & Educational Fund (MALDEF), Asian Law Caucus, National Black Justice Coalition, South Asian Bar Association of Northern California, ACLU, Lambda Legal Defense and Education Fund, National Center for Lesbian Rights, retired California Court of Appeal Justice Donald King, family law professors from across the state, American Anthropological Association, American Psychoanalytic Association, National Association of Social Workers, and the American Academy of Pediatrics California Chapter.

The American Foundation for Equal Rights Advisory Board is co-chaired by John Podesta, head of the progressive Center for American Progress, and Robert Levy, head of the libertarian Cato Institute. The Board also includes former NAACP Chairman Julian Bond, UFW founder Dolores Huerta and FOX News Commentator Margaret Hoover.

For complete information about the case, including court documents, photographs, video and more, visit www.equalrightsfoundation.org .

Specifically, the District Court’s comprehensive, 136-page decision may be found here: www.equalrightsfoundation.org/legal-filings/district-court-decision/

A summary of the trial is available here: www.equalrightsfoundation.org/press-releases/perry-v-schwarzenegger-trial-summary/

Video evidence and other court filings are available here: www.equalrightsfoundation.org/our-work/legal-filings/

“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the original suit against Prop. 8 stated, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.

###

I’m at the American Foundation for Equal Rights (AFER) press conference. The set is a replay of the set at the opening press conference in May 2009 in LA when AFER publicly launched itself and the case.

Andy Pugno, General Counsel of (the oxymoronic) Protect Marriage opened by saying that now the judge can rule. Cooper said he awaits the judge’s ruling so this case can go to its next phase. Cooper ran out unwilling to take questions. We know he has no answers.

Now Austin R. Nimocks, the guy from the Alliance Defense Fund is trying to answer a question about the dangers that Charles Cooper mentioned over and over. He said that it’s about protecting the institution of marriage.

Pugno says that the court rests on the scrutiny issues.

Questioner says the argument you made says that marriage is to protect people who want to have children and those children. How does this work with married couples who cannot or do not procreate? ADF guy says that mothers and fathers are needed. And no public policy is perfect, not for stop signs, or traffic or marriage, but 99% of kids are born from opposite sex couples.

Pugno says that only a man and a woman can inadvertently have children. That’s why the state wants them to marry.

Questioner: Are you saying that ss couples cannot procreate?

Pugno: You don’t understand my answer. Let’s move on. Only men and women can procreate.

Q: SS and opposite sex couples can engage in irresponsible sex.

Pugno: Courts have right to channel (there he goes again).

Nimocks: Defending Prop. 8 is playing defense. Judge not necessarily critical of our not having witnesses. We did not need to have any. All we have to do is have rational basis. We do. Someone may not agree with that basis, but it’s still rational.

Q: Cooper said end of marriage would lead to end of society.

Pugno: I think he was quoting from Supreme Court. All of these questions are great for legislative debate where we change hearts and minds. We don’t ask judges to substitute their will for the will of the voters.

There is a phalanx of cameras here, at least 12 big TV cameras and another dozen small ones plus many, many stills.

Chad and Ted Olson and David Boies and the plaintiffs took the stage. Everyone applauded wildly. Chad is speaking. He said this is not a political campaign with bumper stickers and ads. The law and facts mattered here and the other side had trouble with that. At its core this case is about every person being treated equally. Equal protection is founding principle of country. Plaintiffs want same rights—not special rights—same rights.

I want to thank these plaintiffs before you who represent their own families and so many others across the country. I also want to thank Olson/GibsonDunn and Boies/Boise Schiller. We have become a family and we’re staying together until we get equality.

Kristin Perry thanks Chad and AFER and Ted and David for leading a legal team the likes of which we have never seen and not for a better cause. You gave two moms our day in court. Sandy and I just want the same thing everyone else has. That’s all the case is about: fairness and equality.

Paul Katami thanks everyone. Jeff and I are ordinary Americans. We work hard and pay our taxes. We want fairness. That’s all we ask.

Olson came up and grabbed Boies. “I don’t do anything without David Boies.”

Boies said, “One thing he did without David Boies was the best argument I have heard in 45 years.”

Ted thanks all the folks in both firms, AFER and the plaintiffs. We could not in this country stand any longer without doing something about a proposition that gets placed into the constitution that prohibits people from entering into the relationship that the Supreme Court says is the most important relationship.

I grew up in CA, now live in the east. Chad and the Foundation and so many others—so many names I won’t start going through them all. Every day, David and I have had in mind our clients. We don’t do a thing without thinking about them, about fighting for them. We want the judge to see that on our faces is the interest of our clients. Clients got out there everyday and put their faith in us. Very courageous people. They stand for millions as Chad has said.

We put together a team of lawyers that tries to live up to the promise. We’re a few steps ahead of where we were a year ago. Judge offered to have cameras in courtroom but Supreme Court did not allow. If there was ever a trial in the history of our country that the American people should have seen it was this trial. To see our clients stand up there and talk about their feeling and families was heart wrenching for everyone.

TO hear the most prominent experts in the world talk about discrimination and the history of marriage was terrific. Judge was one of most competent I have ever seen. He moved us along, but he gave us the opportunity to establish a record for the appellate courts and the American people.

Working with David Boies an honor. I said in my closing statement that they had few witnesses on the other side because many of them learned in deposition what it means to be cross-examined by David Boies. Two showed up and they understood why the others did not show up.

I feel very good that we did as good as we could.

Boies said if ever there was trial that should have been televised, it was this one. If it gets out of the darkness, people will be fair and this will all end. Thanks to Chad. No case without him. This has been a challenging, enormously gratifying case. I understand that when Ted finished in overflow room, people cheered. It’s now in the hands of the judge. We made a great case. I’m very hopeful that the facts and the law really will matter in this case. Facts and law are on our side.

[UPDATE 5:25]

Q: Is this the case that will go to the Supreme Court?

O: I believe it is. It is California. There is no other case in federal court that challenges a state. Whether or not we win or lose, we will appeal, I cannot imagine the other side won’t. Someone will bring this to the Supreme Court.

To your other question, of course it is civil rights. Supreme Court said marriage is key right. It also said intimate private sexual matters are a right. How can you then not say that marriage is not linked to that?

Presumptuous to say how judge will rule. Top graduate of Stanford. Chief judge. Been on bench for 25 years. Was at a law firm. I’m confident that he’ll do the best job he can. I don’t know how he’ll rule. He could rule on a narrow basis because California has such a bizarre set of rules.

I don’t know how long it’ll take him to rule. It’ll take him as long as it takes. He gave us 39 questions. He’s a very thoughtful judge.

Ocamb asks questions.

Olson: You sensed how passionate I was in this trial. There may have been a few times when I had more emotion running through my body, but felt that way all day today and most of time in trial. I need to be able to convey those emotions to the judge. Partially academic exercise because we are talking about the law. I think about discrimination.

Boies: I have no answer to the 18,000. Assuming that the plaintiffs win, what should remedy be? Answer they came up with, invalidate the 18,000 marriages. No one knows how they came up with that. I won’t predict, but I will make one prediction: the 18,000 marriages will not be invalidated.

(I paused to talk to Cleve. I missed a couple of questions.)

O: One of the judge’s questions was how did we get to this traditional view of marriage between a man and a woman. It is not correct factually that it has been that way which is why our opponents did not bring it up today.

Intimate relations, spirituality, family are not connected to their definition of marriage. It has nothing to do with it.

I could go on and on, but you heard the closing arguments.

Thank you.

This should be the last thread of the day, with the plaintiffs up to rebut the defense’s arguments.

Judge Walker: Mr. Olson, let’s pick it up there. Isn’t the danger that you might win this case? That happened thirty years ago and continues to fester in society. Isn’t the same danger present here that society will still be restive and unsettled?

Olson: I believe the cases to which you refer are to abortion. The arguments we look to are civil rights. Look at the Loving case. The Supreme Court struck down 15 or 16 anti-miscegenation statutes in 1967 unanimously. Looking back only 43 years, we see that it was a felony in Virginia to marry another race.

O: The same arguments were made to MLK, Ruth Bader Ginsberg and Thurgood Marshall. I know that Mr. Cooper wishes he could take those words back, “I don’t know.” He could only get two witnesses into court because they did not want to be cross-examined by Mr. Boies and some did not come because they were cross examined by Mr. Boies (Laughter).

O: Mr. Cooper sites from books of people who would not come into court to be subjected to the judicial process. Mr. Cooper used a new term today, that the State of California is in the business of channeling us through marriage, I’ve never heard of that. (Laughter). He says that gays and lesbians are a threat to procreation and that channeling function if you accept that channeling is a function. 14 Supreme Court decisions, testimony of Dr. Kott, other experts say that marriage is not an issue of 30 years, but older than the bill of rights.

O: Mr. Cooper says first you have to accept my definition that marriage is between a man and a woman and marriage between man and man or woman and woman would change definition. Of course it did because you defined it. How does it help to keep gays and lesbians out of the club?
O: It turns out that Mr. Blankenhorn has some things to say. Mr. Cooper wants him to stay as an expert in this case and we’ll accept that because it turns out he’s quite helpful to us. (Laughter).

(Plays Blankenhorn testimony: “heterosexuals did the deinstitutionalization. It predates the discussion of gays and lesbians marrying.”)

O: Dr. Kott points out that no fault divorce led to higher divorce rates. So much for the channeling function! Mr. Blankenhorn did testify that gays and lesbians have nothing to do with the increase in divorce rates and good for him that he came here to be cross examined.

(Plays Boies: you did not mean to imply that bio parents are better than adoptive? Blankenhorn: No. Boies: In fact, two bio parents… Blankenhorn: IN fact adoptive parents on some outcomes outstrip bio parents in providing better care for their children.”)

O: Well, there you have it. Children in same sex families are better off, maybe, than those of natural. Or maybe not. Blankenhorn says that if ss couples can marry better off still.

O: Now a word on pro-creation. What if the state changes its mind? There are governments that have ruled that too much pro-creation is bad. If CA so decides in 10 years, would the state have the right to cut off marriage? No. None of the cases to which Mr. Cooper referred, including Maynard, referred to divorce, mandatory leave for public school teachers, family occupancy of homes, prisoners, and the last case in Texas which ruled for homosexuals. Mr. Cooper cites Justice Stevens in Bowers and then he is in the majority in Lawrence. IN other words, his earlier opinion really reversed and confirms that marriage is not about procreation. That’s what the oracle of justice, Mr. Stevens said. It’s not about sex.

O: Why are we all of a sudden talking about SS marriage? It’s no longer against the law to work for the federal government if you are a homosexual. It’s no longer against the law in most places to go into a bar if you are a homo. It’s no longer considered a disease. Even some of that stuff was in the Prop. 8 ads. With this changes in society, no wonder people are talking about marriage.

[UPDATE] 4:02

Judge: 1967, it wasn’t 41 states – it was about 14 or 15 states that prohibited inter-racial marriage. 27 states removed the restriction and in that first one, there was already a political tide running with respect to inter-racial marriage and the Supreme Court took note of that. Now, do we have a political tide that is going to carry to the Supreme court?

Olsen: I believe your honor that there is a political tide. But that does not justify saying that the polls need to be a little bit higher before change, because even if they change it here in California we still have to go to every state. There will never be a case with such a wildly crazy system like California had, there will never be case like Romar. The right to privacy is the same right we’re talking about in the context of marriage.

The most compelling thing that I’ve read on that subject were the arguments made to Dr. King – people saying that the people weren’t ready, that there would be backlash – and his letter from a Birmingham jail about why we can’t wait any longer. The threat of irresponsible procreation – what does that mean? I can’t figure out what that means. Because the clients that I represent are not irresponsible procreators; on the other hand, heterosexual couples who have sex outside of their marriage are a much bigger threat to the institution.

We had a discussion about the motivation of the voters and whether the procreation protection goal part of the reason that voters approved Prop 8. Mr. Cooper cited two exhibits during this poriton, but we looked at those 2 exhibits and protecting procreation was not mentioned in either of those (he’s referring to the voter guide and Prop 8 campaign). I could not find the words procreation….I could find the phrase “activist judges” (laugh), what I also could find was about protecting children. Protecting children is the argument that proponents made and I submit that is discriminatory animus.

[UPDATE 4:04]

O: We relied on a definition of marriage as I pointed out was supported by 14 Supreme Court decisions on privacy and other issues. Mr. Cooper has cited some appellate court decisions. With all due respect, the 134 year history of Supreme Court rulings on marriage trumps that. Then we had experts testify on immutability—all kinds of evidence on that. No idea how my opponent can say it’s a matter of choice. Some people may change. But it’s a characteristic and the experts testified. Supreme Court decisions, testimony by eight of the best experts in the world and the animus behind Prop. 8 and then Mr. Blakenhorn came over to our side (laughter).

O: Then Mr. Cooper cited High Tech Gays case was in 1990. I must have heard that in his testimony six or eight times. It relied on Bowers. Bowers has since been reversed by Texas. Cites case that talks about immutability. Points your honor to 9th circuit opinion which guides.

O: No we get to gender discrimination. Choice of gender of whom you want to marry leaves some out. It’s about a fundamental right to marry, not to marry in June or some other time, but to marry whom you love. Can’t rely on post-hoc. We have to take a group of people who have bee victims of discrimination and we want to foreclose them from a basic right_ marriage. Strict scrutiny, rational basis or something in between, you have to have a good reason to take those rights away. “I don’t know” doesn’t cut it when you take a basic right from a group is not good enough. 14 Supreme Court cases, including Romer and Lawrence that says sexual orientation is private. You cannot say that we are taking away the intimate rights and take away your freedom to marry. Not acceptable under our constitution.

O: Mr. Blankenhorn is right. The day that ends, America will be better off. Thank you, your honor.

J: Very well. I’ll remand.

Adjourned.

[UPDATE 4:09]

After nearly three weeks of testimony and a day of final arguments, it’s over. Now it’s all up to the judge. All.

Ted Olson just wrapped the whole thing up with these words: “I don’t know doesn’t cut” when you are removing the fundamental rights of an entire group of people.

I’m going to go hug folks. I almost cried. I have to think. We have our work to do. Everyone has to know.

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Fresh thread time. More of Judge Walker trying to get Cooper to make a legitimate argument.

Cooper: To come back to the immutability case, the 9th circuit said, “sexual orientation is not immutable.” Against the Supreme Court cases, we know of no case that sexual orientation meets heightened scrutiny. The characteristics of immutability simply do not apply to sexual orientation. Behavioral, attraction and self-identity are the three definitions that the plaintiff’s experts used and depending upon which you use, a different group falls into that, so the definition is not clear. The plaintiffs made clear that sexual orientation does change over time, especially in women. Peplau commented on the “astonishing elasticity” of women, whose sexual orientation changes many times over their lifetimes. Some 2/3 of women who identify as homo have changed their orientation at least once and 1/3 more than once over their lifetime.

C: Goes to Supreme Court question of immutability. Justice Ginsberg says, “Immutability is tightly cabined. Goes solely to accident of birth.” Heightened scrutiny goes to race, gender, illegitimacy, all accidents of birth. Ginsberg says, “Doesn’t say something can’t be changed.”

Judge: Does this have to do with national orientation?

C: Yes.

J: Sometimes of the year everyone is Irish. (Laughter). People may choose via an ancestor to have a national origin. These questions of immutability are not key.

C: Well, we then look at political powerlessness. We submit that gays and lesbians are not politically powerless as Dr. Segura says. Clearly in the Cleveland case in regard to mentally disabled, does the group have the ability to attract the attention of the lawmakers? 20 years ago in “high tech gays?” the court ruled that gays and lesbians can attract the attention of legislators. As Dr. Segura testified, since that time there has been a sea change.

J: Isn’t that the most important factor, the historical context? Women are hardly politically powerless, yet a law protects them, laws that single them out subject to strict scrutiny. African Americans have considerable power and yet a law that singles them out is subject to strict scrutiny. Isn’t the historical context what makes the point?

C: It’s an interesting question. Here’s a group whose political power has changed so dramatically (women). In 1970 and 1973 when the court had before it the political power of the group (women) needed extraordinary protection from a majoritarian electorate so they needed protection. At that time, only 2% of the offices held by them but 50% of the population. That’s not the case with gays and lesbians in California.

J: The DOMA Statute that has been mentioned, Prop. 8, exclusion of gays and lesbians from military for a long period of time, all indicia of discrimination?

[UPDATE 3:00]

J: P8, these other props in other states, the exclusion of gays and lesbians from military service – aren’t those all indicia of a long history of discrimination?

C: We have never disputed that gays and lesbians have been the victims of a long and shameful history of discrimination. Thankfully, the situation today in 2010 is not what it was in the past. The fact of a history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny.

The question of political powerlessness was very different 20 years ago, but the 9th Circuit nonetheless believed that gays and lesbians could attract the attention of the lawmakers; thus, it follows that it must be true today.

Even though mental disability is an immutable characteristic, the disabled could not qualify for heightened scrutiny because the court found that they had political power (could attract the attention of lawmakers), sure they had to rely on allies to create that political power. If the mentally disabled weren’t politically powerless, I would submit that gays and lesbians are definitely not powerless. I submit that Court’s that have decided against heightened scrutiny have been correct.

Long pause….

j: Why should Mr. Blankenhorn’s testimony qualify as expert testimony. Does he meet the standards?

C: I submit that he does. I don’t have anything to add to the submission we made earlier. Under the 9th circuit standard of the qualification of an expert, he is amply qualified. His professional life for 20 years have been devoted to the study of marriage – the potential parenting structures, the potential for harm to marriage due to a variety of social phenomena, including same-sex marriage, he’s written books that have been received with respect by recognized experts.

J: Were they peer-reviewed?

C: No.

J: Am I correct that the only peer-reviewed article of Blankenhorn was not on the subject of marriage?

C: Sir, as I stand here right now. I don’t know…don’t remember.

J: Fair enough.

C: I didn’t come here prepared to argue that particularly. May I request a 5 min break?

J: Why don’t we take 10 minutes….back at 3:10.

[UPDATE 3:27] from Rick

(Here’s a bit of commentary and some color from the break while Arisha does the hard work.)

Bruce Cohen, the Academy Award-winning producer and key figure behind this case, said to me,” Can you believe that they are pointing to the one court ruling banning gays and lesbians from adopting (Florida) as their standard?” As Bruce said, there are only two states that ban adoption by gays and lesbians—Florida and Arkansas. Yet Mr. Cooper is saying Judge Walker should refer to that ruling for guidance here.

Kris Perry introduced me to her two wonderful, poised teenage sons. I also had the honor of meeting Kris’s mother. Of course ___ Steer was right there, wondering with all of us what Mr. Cooper is really filibustering about. Can you imagine being the subject of this case and having your kids and your mom sitting there with you throughout all of this? Imagine these young fellows, who have such wonderful, loving, caring parents, hearing a high-powered, gray-haired lawyer pontificating about how horrid lesbian mothers must be? I really can’t. It’s not removed at that point.

One distinguished lawyer (not on the legal team) said, “The only thing he has is the strict scrutiny test which has never before been applied to marriage equality.” He went on to say, “What he said about Loving is bullshit. The only reason society had to prevent black and white people from marrying was procreation. Society did not want mixed-race kids.” That’s right. Society did not want Barack Obama to be born.

Cooper has surrendered, really, on all of the other issues. He’s trying to say immutability is not assured, but the judge pointed out that that does not really matter here. And even though the judge keeps bringing this back to marriage as a right vs. sexual orientation, he keeps trying to say it’s about sexual orientation because that is his canard.

Short notes: Maggie has her shoes on. Lance Black is watching intently, having not been absent for a second of this. And there to my left is the (oxymoronic) Protect Marriage gang that sued us in January for having a logo that they say is indistinguishable from theirs even though ours has two women with two children instead of a man and a woman. That’s the point of the whole thing. There’s no difference. It’s about the right to love.

[UPDATE 3:33]

C: The US Supreme Court in Crawford vs. Bd. Of Education in 1982 upheld a California constitutional amendment that reduced the remedial tools given to the courts in the school segregation area. In that case the court rejected the contention that once a state chooses to do more than the 14th Amendment requires that the state could not return the “lower” federal standard.

J: What do we make of that in the context of this case? What baring does that have?

C: The California Supreme Court’s interpretation that we believe goes beyond the 14A, was something that the people of the state were empowered to reverse. The people of California are the ultimate appellate tribunal of the California Supreme Court. The Court’s decision was no more final in the state of California than the Appellate decision that upheld Prop 8. It was reviewed by the ultimate, judicial tribunal and the judgment of the Supreme Court in Crawford is on point here.

C: I also want to address whether there is a legit basis for California citizens to be concerned that redefining marriage to include same-sex couples, does not show concern for the potential harm to the institution of marriage or show respect for the role that marriage is supposed to play (procreation, again). Redefining the institution will change the institution. Blakenhorn, our expert, said if you changed the definition of a thing, it’s hard to imagine how it would have no impact on “the thing.” Others have acknowledged that change will result. [He quotes a few “experts” who believe gays marrying will change the institution.] Redefining will divorce the institution of marriage from it’s core procreative purpose. It is not possible to predict with certainty what that change will beget. It seems undeniable that change as profound as this one, would have some consequences. The plaintiffs think that the consequences will be positive; we respect that point of view, but it’s not something that they can possibly prove – and their own expert (quoting Cott now) agrees that we can’t predict. Andrew Churling, a sociologist and equal marriage supporter, also states that “predicting the future of marriage is risky business.” He cites as example the fact that no sociologist forecasted the baby boom during the Great Depression; no sociologist predicted the rise of co-habitation.

Let me say 3 words that I haven’t said that often. “I don’t know.” Jokingly, I wish I could have those words back. Because usually whatever your question is, “I damn sure know.” Courtroom laughs.

J: What about Blakenhorn’s testimony about the negative outcomes that will result if gays can marry?

C: Blakenhorn was giving voice to sentiment that the threat of harm to vital social institution is too daunting to run the risks of gratifying what would otherwise favor the advent of same-sex marriage. There are many who went to the polling place with that sentiment – that’s my speculation. There are millions of Americans who believe in equality for gays and lesbians, but draw the line at marriage. Their hearts are pure – as pure as the plaintiffs – but they still believe that this is profound…could be profound. It could portend some social consequences that would not be positive and that reality

C: No one can know what tomorrow will bring. If there is a legitimate and rational basis to be concerned about that, couldn’t be more rational for people of California to say wait. We want to see what happens in Mass. and here. Perhaps Mr. Olson and his client’s whose sentiments are powerful (he’s speaking very haltingly) will be able to convince their fellow Californians they are right.

J: A disability has been put on marriage. Do you not have to show that there is need, that it’s enough to impose on some citizens a restriction from which others do not suffer? Is it enough to say “I don’t know?”

C: Yes. In looking at what society’s interests are and interests in regulating and caring and about marriage, if there is no basis for drawing a distinction from one to another, the distinction can’t stand. But if there is s distinction, it must stand. It’s been our position from the outset that we do not have to prove that exclusion of gays and lesbians from marriage is a problem; we only have to prove that inclusion of those people would erode marriage.

J: Would you wrap up?

C: Yes. (Pause) The California court (missed which one) goes to the heart of the matter. It is the proper role of the legislature to set priorities and make difficult and imperfect decisions and approaching problems incrementally.” That process is at work in this state and the county. As the court considers this, there is a debate about the morals, the practicalities and the wisdom that really goes to the nature of our culture. The constitution should allow that debate to go forward among the people. Thank you.

J: Thank you Mr, Cooper.

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The last thread was getting a bit long so here is a new one.

Cooper: Only 16 states had a prohibition against inter-racial marriage. They actually made people have illegitimate children. The purpose of marriage is to have legit children. This racial restriction is at war with that purpose.

Judge Walker: Why isn’t the prohibition of marriage by SS couples at war with marriage for children?

C: Again, the 8th circuit recognized that there is a state interest. (He talks in circles) Only opposite sex couples can procreate and therefore they can minimize irresponsible procreation. When procreation between men and women not in binding vows, more frequently, society itself has to cope with that adverse consequences of that kind of irresponsible procreation.

J: But you don’t draw any distinction when opposite sex couples can conceive on their own or when ss couples require intervention, which is increasingly common. State’s interest is the same.

C: Not quite the same, no.

J: What’s the difference? If a child is born from a egg or sperm donor is society’s interest in the child different?

C: Without intrusive inquiry into fertility, society’s interests are also furthered whenever opposite sex couples are married because that strengthens the societal norms in order for this channeling function to be performed. Whenever opposite couples are cohabitating as happens now more than in previous times in history. Now we have social norms to try to channel into marriage. (He makes no, no sense. It’s not just me. He talks in circles because his only point is, as Olson said this morning, “because I said so.)

C: State’s job is to minimize irresponsible procreation. It’s not a good term, but I can’t think of a more serviceable one. Procreation that isn’t bound by social obligations than the marital one is, children raised by one parent or another, but not both. It is not a phenomenon that the court has to concern itself with with ss couples. SS couples cannot have kids by accident.

(The bailiff just made Maggie NOM put her bare feet down. She is so disrespectful)

(I just walked out to send this. Arisha, one of our organizers is teaming up with me so we get it all. A woman who is 8 months pregnant walked out with me. I said, “don’t threaten society.” She said, “that guy would be better off just sitting down and shutting up now.”

[UPDATE 2:11]

J: What’s the threat to society if people seek medical assistance to have children?

C: It’s the irresponsible procreation – the procreation that comes about casually, unintentionally. The opposite sex couple (but infertile couple) or a same sex couple cannot unintentionally procreate; however, the opposite sex infertile couple being allowed to marry is not against the core purpose of marriage. If that couple gets married – all of the social norms that come with marriage – that encourage fidelity, operate to society’s benefit, in the sense that the fertile member of that couple will be less likely to engage in sexual relationships with third parties that lead to irresponsible procreation.

J: Why don’t those same things apply to same sex couple – considerations like taking care of one another, loving one another etc., why don’t those same considerations apply?

C: We’re not suggesting that there is a distinction between gay and opposite sex couples with respect to those considerations, but there is a distinction in terms of procreation. Neither partner with respect to the same-sex couple represents a concern about irresponsible procreation with a third party. The considerations that you have identified are considerations that the state and its voters have taken account of, respected, credited and honored by creating the parallel institution of domestic partnership.

J: Where does it show that the procreative function was a rationale for voters in upholding Prop 8? Where is that in the evidence?

C: The Yes on 8 position specifically references that marriage is a fundamental relationship in society and in the voter information guide itself.

[UPDATE 2:14]

(While Arisha is typing furiously, I’m able to look at the lawyer table. Olson is shaking his head. So are we all.)

C: The Prop. 8 campaign showed over and over again that the purpose of Prop. 8 was to raise children through marriage.

J: What is the citation?

C: From PX 27, it says things like this. (Drinks water, losing voice. Judge joins) Marriage promotes the ideal opp for children to be raised by mother and father in bonds of marriage. While death and divorce result in single parents, we should put the interests of the children first. There was a lot of this from (the oxymoronic) Protect Marriage dot com. There was a lot of this in the discussion. The campaign wasn’t just by any stretch what Protect Marriage dot com had to say. The debate was a cacophony of television ads toward November 4th to conversations at the water cooler. People debated this issue at every venue. Cacophony. Not necessary to cite one source to show that any argument from any source was being advanced by these very passionate debates.

C: The court should apply this view. We submit that the rational basis … there has not been a case in the so-called marriage equality situation that has been before federal courts. There has not been a case before the federal judiciary or as far as we can tell the state judiciary that applies to anything other than rational basis with four district court exceptions. We submit that 9th circuit has binding authority. Ten other courts of appeal with 6 decisions after Lawrence have held rational basis for sexual orientation cases. Out of 40 some odd district cases, all have been the same save four that have not survived (I may not have gotten this right). You are being asked to participate in a Tsunami. We don’t have to submit evidence to the court. The plaintiffs must refute every conceivable rational basis. That means they have to negative every conceivable fact that applies to rational basis. (So this is his point. It’s all rational basis, not strict scrutiny.)

C: If every conceivable fact is upheld, must be non-debatable proposition.

J: Tries to interrupt

C: IF you prove that they are right on any facts by plaintiffs you still must rule against them unless you can show that every legislative fact relevant fact cannot be true.

J: Standard in Romer was rational basis?

C: Romer concluded not any explanation for the sweeping, disabling, punitive statute discriminating against gays and lesbians in that case. No rational basis for sweeping disabling statute that effectively made gays and lesbians strangers to the law was animus.

(Thank God for Julia and Andy and Arisha. The signal is bad in the court so we can’t use wordpress. Arisha and I keep spelling each other so we can come out and post. Julia is trying to make sense of all of this, no mean feat. Thanks for staying tuned. This is great stuff. And Maggie finally had to hide her feet. I wonder if she’ll throw a shoe at the judge?)

[UPDATE 2:26]

Judge: Where was the evidence here with respect to the natural procreative capability of hetero couples as opposed to the non-natural procreative ability of same-sex couples? Was that evidence before the voters here that you are relying on to establish a rational basis?

C: I don’t understand your question.

J: The point that Justice Brennan is making in the Minnesota case was that there was evidence before the legislature that was identified that warranted the classification that was made in that case. The evidence supporting the classification here, is the natural procreative ability of hetero couples distinguishes them from same sex couples – that’s your evidence?

C: Yes.

J: If the court finds P8 to be unconstitutional, what remedy should there be. Do I understand correctly, that you’re saying that not only am I required to rule against the plaintiffs, but also invalidate the 18,000 same-sex marriages that took place?

C. No, your honor. That is not our position at all.

J. But that’s what your words say.

C: No, not unless there’s an irreconcilable conflict. Our position is that we don’t believe that this has created a conflict that requires P8 to be invalidated. Mr. Olsen thinks it is irrational to have a system where 18k same-sex couples are married without further rights for other same-sex couples to marry. We believe that the California Supreme Court engaged in analysis that is routine and standard, statutes are enacted all of the time that would appear to affect rights and interests that have been created under the pre-existing state of the law.

The California Supreme Court said the reliance interests that have been created as the result of the court’s decision in the Strauss case were powerful and legitimate and that it was forced to interpret P8 as upsetting those interests. It is not uncommon when courts are faced with that situation, to grandfather the individuals and protect them from the application that would, in that circumstance, be especially harsh (forcing the 18k to divorce). We don’t think that is irrational (as Olsen contends) or unconstitutional and neither did the California Supreme Court. But what we‘re saying in our brief is that if that were to be the case, if the 18k marriages that took place cannot be reconciled and one or the other has to fall, our submission is that the overriding judgment of the people should not be the one that should fall.

[UPDATE 2:35]

C: Obviously, it was before the CA Supreme court that Prop. 8 had a retrospective effect as well, just as the court held in a previous case that the marriages in SF were void. That was a decision the CA Court could have taken differently; it did not. We think these all lie down comfortably next to one another. Not one or the other of the elements must fall.

J: What elements?

C: Prop. 8 on one hand and the CA Supreme Court to keep those valid. We think the grandfathering of those marriages is perfectly rational, common and constitutional.

(C pauses a bit…)

C: I want to effectively conclude this piece of my argument by calling attention to 11th circuit case called Laughlin. Case in which 11th circuit upheld FL statute that prohibited gay adoption (Anita Bryant Lives!). It’s the heart of the doctrine we’ve been discussing, the procreative purpose of marriage, the idea that was displayed again as I mentioned earlier on the ballot argument that it’s best for the child to have married parents. Court looked at Dr. Lamb’s testimony. Court ruled that it was no rendered irrational that children do best when raised by own mother and father. Again, NY Court of Appeals Hernandez v. Robles… Taking all of this into account, legislature could rationally conclude that natural parents of opposite sex vs. children being raised by ss couple that has not been proven reasonably by scientific evidence to be good for children.

C: Evidence provided by plaintiffs does not rise above scientifically debatable fact. Reasonable, therefore, that many scientists and other people hold that a two-sex couple is better for child rearing.

C: I want to move to another point. They’ve gone to great lengths to talk about the religious beliefs of many who supported Prop. 8. Hardly remarkable that religious people are involved. It’s part of our tradition from abolitionists to civil rights and it’s constitutionally protected. Moral values and judgment from the death penalty, gambling, prostitution and an issue before Supreme Court not long ago on assisted suicide. Court noted that throughout the nation, citizens are debating physician-assisted suicide and debate should continue, as it should in a democratic society.

C: Court made it clear that when court is confronted with a new claim of rights, must be rooted in judiciary tradition so that we don’t take important issues off the democratic process. True of marriage.

(This is fascinating stuff. The judge has to judge. Do we stay with tradition because we do or is this Loving v. Virginia time? It’s pretty clear it’s the latter. It’s our job to make it clear that society has changed. And that’s why we need to tell the country what happened in this courtroom. Can you imagine that Cooper is using the Florida adoption case as the standard the courts should uphold? Really? Does anyone out there doubt in the least that gays and lesbians are good parents, oftentimes better than their heterosexual counterparts? Do you know or are you a gay or lesbian parent? If so, tell us now so we can get back in touch when we do the Testimony phase. We need to show people that Mr. Cooper and his ilk would have still supported slavery if this were a different time and case. We have to show not tell.)

[UPDATE 2:44]

J: There are times when it is appropriate for the Court (Loving & Brown) to step in, what are the criteria the court should use when the court is making that determination.

C: The “right” claim must be deeply rooted in the histories and practices of te country

J: And in this case, marriage is deeply rooted in the fabric of America. There really is no limitation on marriage – except with regard to gender.

C: That gender limitation is the definition of marriage. The reason that marriage is fundamental is because it is necessary to the continuation of society. The right to marry is bound up with it’s fundamental purpose – procreation and the existence and survival of the human race.

J: Let me ask you about something you said in response to question # 10 – a question posed to both parties. You say, that sexual orientation is a socially-constructed category; sexual orientation fails the requirement of being immutable because it is socially constructed? Aren’t all of these distinctions that we’re drawing, sexual orientation, gender – from a legal point of view – aren’t they all socially constructed?

C: No, there is a fundamental difference between a gender distinction and a sexual orientation distinction. The notion of social construction goes to what we think are the very difficult issues of sexual orientation and it’s amorphous nature. Sexual orientation is not an immutable trait that is an accident of birth.

J. Interrupts: an accident of birth? What do you mean an accident of birth?

C: That term has been used consistently by the Supreme Court, that go into the calculus as to whether heightened scrutiny should apply…..

J: Interrupts, but religious discrimination is not an immutable characteristic?

C: True, but the heightened, strict scrutiny for religion does not spring from the Equal Protection clause, but rather from the First Amendment. For heightened scrutiny, the court has identified race because the central concern of the 14th Amendment was to eliminate all insidious racial classifications. Sexuality is not an immutable characteristic.

[NOTE] The fifth thread is now available for your commenting pleasure.

Three things you can do right now to help us get the truth out about the Prop 8 trial:

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