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Live Updates from the Courtroom II


By Rick Jacobs

Starting thread two, since the first one was starting to get a bit long.

[UPDATE 10:44] Cooper’s only argument seems to be that the evidence will show that if gay marriage is legal, it will lead to higher divorce rates and lower rates of marriage. Blackenhorn will somehow demonstrate that.

Our point is that the plaintiffs cannot prove that the damage will not occur. Same sex marriage is too novel to prove that it won’t harm.

Judge: Any evidence that his happened in other countries?

Cooper: there is evidence; we believe it will show.

They are now saying that we have to prove that gay marriage will NOT harm opposite sex marriage. By that logic, no change is allowed, progress is rejected, until we can prove that the change represents “no threat.”

But it’s impossible to see how this can work except for the fact that three states had judges rule that same sex marriage is legal. In other words, if we didn’t have same sex marriage, we could not prove that same sex marriage will hurt us. Huh? They oppose it everywhere but they now say we should keep it as an experiment? So they should support same sex marriage in the five states! Let’s hold them to that!

[UPDATE] 10:53 Cooper’s case seems to rely nearly 100% on the testimony of Mr. Blankenhorn. I hope for their sake that this guy is the Albert Einstein of right wing social science. If not, they have nothing. Every time the judge asks how they are going to prove their case, Cooper says, “Mr. Blankenhorn will show you.” I can’t wait for that!

The other leg of the case is that “you will hear nothing but predictions” about what same sex marriage will bring because there is not enough history of same sex marriages. So here’s the deal: if we make a change in the definition of marriage without enough history then we will make a mistake.

At end, this really is about progress vs. conservatism. Cooper says essentially if you can’t prove there won’t be harm, you can’t make the change. That means do nothing.

And now Cooper says that only the people of California and the neighboring states and my home state can decide what the constitution demands. Not you, not the ninth circuit, not the supreme court can decide.

Judge Walker: But many times do judges take issues out of the hands of the body politic; why is this different?

Cooper: Because marriage is not covered by the Equal Protection clause. In Loving, we saw that the fourteenth amendment was specifically to deal with race, not this.

[UPDATE] 11:11 We are on a quick break. My laptop is juicing up and I’ll likely be relying on sending updates in from my BlackBerry.

[UPDATE] 11:26 The plantiff:
The love of my life. I love him probably more than I love myself. I would do anything for him. I would put his needs aheadof my own. I would be with him in sickness and in health, for richer or poorer, just like the vows. I would do anything to marry him.

Been in relationship for nine years. The word marriage has a special meaning. It’s why we’re here today. If it wasn’t so important, we would not be here today. I want to feel the same joy and happiness that my parents, my friends, coworkers felt when they got married. It’s the logical next step for us.

You believe if you were married it would change your relationship?

Absolutely. One’s capacity to love and be committed can grow. That would happen with us.

[UPDATE] 11:34 If you were married happily, would it change the way other people who don’t know about you treat you?:

Sure. When someone is married, when they notice it because of my ring or something else, they see that the couple is committed and that they hope to stay committed together for the rest of their lives.

We have not had children because Paul and I believe that it’s an important step for us to be married before we have children. IT would make it easier for us and our children to explain our relationship. It would afford different protections for our child. If we enter into that institution, we would want all of the protections so nothing could eradicate that nuclear family.

We have not registered for domestic partnership because it would relegate me to second class citizenship or maybe even third class citizenship the way things are in California now. It’s part of the pie. We hold marriage in such high regard that if we get marriage, the civil union of the past would not be sufficient recognition of our relationship.

[UPDATE] 11:47Zarello (one of the plaintiffs): Prop. 8 has emboldened other states to take action to discriminate against us. We cannot turn on TV or read a blog without having these daily reminders of what I cannot have.

Have you been placed in awkward or embarrassing situations because you are not married?

When Paul and I travel, it’s always awkward at the front desk. Numerous occasions when individual the front desk will look at us with a perplexed look and say you ordered a king size bed? Is that what you really want?

When we opened a bank account and said, “My partner and I want to open a bank account,” which leads to the bank thinking we wanta business account. IT would be much easier if we could say, “MY husband and I want to open a bank account.”

Have you ever been asked to describe your marital status?

It’s very awkward. I proudly wear my ring on my left hand to signify my commitment. People ask, “how long have you been married? What does your wife do?” Leaves me having to deliver the news that I am a gay man, that my husband or domestically partnered gay man works in the fitness industry. That leads to a continued awkward discsussion.

If state says you cannot marry a man, would you marry someone of the opposite sex?

No! I have no attraction to or desire to marry someone of the opposite sex.

If you were forced to marry someone of the opposite sex, would that lead to a stable relationship?


[UPDATE] 12:00It’s really hard to listen to Jeff (one of the plaintiffs). Every time he talks about his life, about his past, about being in the closet because it was not right to be open, because I’m told to thing of myself of a bad person, to be put in a corner and told you’re different.

This hurts deep in my gut. I remember that feeling growing up.

And yesterday at LAX, on the way up here, I was going through security. I removed my sunglasses and said, “I want you to be able to see my beautiful eyes.” The guard said, “Don’t ever say that to another man.”


Now Jeff is talking about how difficult it is to respond to folks who say, “you don’t have that right to get married, nor should you.”

There was an image that used children in the campaign for prop. 8. Protect the children was a big part of the campaign. When you protect children, you protect them from a pedophile or a criminal. You don’t protect yourself from a good or amicable person. Yet when they say they are protecting them from me, it’s so damning. I love kids. If you put my nieces and nephews on the stand right now, I’d be the cool uncle.

Don’t point your finger at me and put me in the category of those against whom you have to protect your children.

[UPDATE] 12:05 They are now playing a Prop. 8 ad. It’s the one about the little girl being allowed to marry a princess. “It’s already happened.”

How does that line, “Protect our Children. Restore Marriage,” make you feel?

What are you protecting them from? Are you protecting them by denying them certain rights? If so, that’s what they are doing. The threats are insulting. They are demonizing us. Why?

(There’s a big back and forth because the Prop. 8 side does not want any of these ads to be aired from the campaign. The Prop. 8 side thinks that not enough notice was given. The judge said that the witness would remain available for another 48 hours in case the good guys cannot prove enough notice was given.)

We’re taking a little break for the Prop. 8 side to chat amongst themselves about the question of when the list of exhibits was made available to them. But what the heck? Do you think they had not seen the ad? They used it all the time in California and then again in Maine. Maybe they should check out their own side’s website.

NOTE: A third thread has been started. Click here for the latest from the courtroom.

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  • 1. Mary Ellen Broderick  |  January 11, 2010 at 3:53 am

    hetero marriage could not be hurt more than from themselves, could it…what is teh divorce rate like 50%

  • 2. nancy c  |  January 11, 2010 at 3:58 am

    I really like this judge. I can't wait until their top witness tries to prove this.

  • 3. Audrey Smith  |  January 11, 2010 at 3:58 am

    More like 60%, Mary Ellen

  • 4. Audrey Smith  |  January 11, 2010 at 4:01 am

    My questions to Cooper:

    Did the sky rain down fire, or did the earth open up and swallow the citizens of Canada? Or of Spain? Or of Belgium, Hollan, Norway, or Sweden?

    What harm has been done to opposite-sex marriages in these countries by allowing same-sex marriage?

  • 5. nancy c  |  January 11, 2010 at 4:04 am

    THANK YOU for that comment AUDREY. I am married to a Canadian and that country seems pretty normal to me.

  • 6. Meghan  |  January 11, 2010 at 4:04 am

    Will Cooper / Blankenhorn also state that to protect children that maybe DIVORCE should be banned by the courts as detrimental to children?

  • 7. Audrey Smith  |  January 11, 2010 at 4:07 am

    Meghan, that point really needs to be made, and I hope it will be!

    I am going to be sitting on the edge of my seat, glued to the computer monitor for the next few weeks….

  • 8. Jason R  |  January 11, 2010 at 4:08 am

    The Huffington Post recently reported on this ( showing that divorce rates were down since marriage equality was instituted in Massachusetts. Arguing that more divorces will occur because of marriage equality is definitely a way to pigeon-hole yourself to something that most likely isn't possible to substantiate. An older slate article seems to point the same conclusion as the Huff.Po. article (

  • 9. Laura  |  January 11, 2010 at 4:10 am

    Ooooh, I wanna vote on Cooper and Blankenhorn's marriages!

  • 10. Sandy O  |  January 11, 2010 at 4:14 am

    I suppose Mr Blankenhorn will try to tell us.. LOL

  • 11. Nici  |  January 11, 2010 at 4:15 am

    I just want to say thanks for doing this.

  • 12. Barb  |  January 11, 2010 at 4:20 am

    Thanks to Mary Ellen for posting the link on FB and many thanks to Rick for keeping us updated.

  • 13. Rowdy  |  January 11, 2010 at 4:20 am

    Thank you for this play-by-play! I love it! rest those digits for the big showdown!

  • 14. Meghan Stabler  |  January 11, 2010 at 4:22 am

    There is also a live, aggregated, twitter feed at Bilerico

  • 15. rebecca  |  January 11, 2010 at 4:31 am

    Thank you! This is fascinating…

  • 16. The Reverend Susan R  |  January 11, 2010 at 4:38 am

    Great job! Thanks SO much for this!

  • 17. Melanie Nathan  |  January 11, 2010 at 4:44 am

    Rick, We at Lezgetreal have published your request for support and also your resporting from inside the Court room – so another 120,000 viewers may direct from us this month. Thanks so much for doing that. Amazing Job.

  • 18. Miriam Alario  |  January 11, 2010 at 4:46 am

    Here's my problem with the arguement against Same sex marriage:
    IF we make the issue of marriage gender specific, it changes the status of MY Hetero marriage, to being MERELY about gender. It discounts the spiritual union, the intimacy of heart and soul, the economic benefits and the BONDING that I recieve from marriage. It relagates MY marriage to a merely sexual consideration. That harms ME as a Heterosexual and a taxpayer, and is therefore not in the State's best interest.

  • 19. David B. Cruz  |  January 11, 2010 at 4:48 am

    If the Prop 8 challengers lose this case, it will be because of the judges or Justices, not the strength of the legal arguments or the skill of the attorneys. Cooper is awful. How can he stand there and say "Because marriage is not covered by the Equal Protection clause"? The U.S. Supreme Court held that it is, and struck down a non-race-based restriction on marriage, in Zablocki v. Redhail in 1978 (434 U.S. 374 is the citation) as violating the Equal Protection Clause. Asserting propositions directly contradicted by Supreme Court precedent is not generally considered good (or competent) lawyering.

  • 20. Chris Miller  |  January 11, 2010 at 4:49 am

    Miriam, Thanks for that analysis, Never heard that philosophy. Good stuff!

  • 21. Marcy  |  January 11, 2010 at 4:50 am

    Thank you so much for your eloquent updates. I wish that I could watch live, but your posts are the next best thing. Again, thank you.

  • 22. Patti Hughes  |  January 11, 2010 at 4:52 am

    This is wonderful. Thanks SO much for making this effort. My brother just sent me the link!

  • 23. J.L.  |  January 11, 2010 at 4:54 am

    Thank you for the updates! Just wanted to point out that Blankenhorn is not an academic, so while he may have studied social science I'm not sure he can really be described as one.

  • 24. Mykelb  |  January 11, 2010 at 4:59 am

    What should be argued is that marriage should be restricted to those over the age of 25. 85% of all marriages between people aged 25 and below end in divorce.

  • 25. Lauren  |  January 11, 2010 at 5:00 am

    This is great! Thanks Rick! I've been posting the link on my friends' Facebook walls. If you are reading this, you should too. Spread the word. If we can't watch it on youtube then we should get as many people as we can to read this.

  • 26. Mykelb  |  January 11, 2010 at 5:01 am

    That's because LGBT folks have fought so hard for the right to marry, that once they do, they actually VALUE IT.

  • 27. Gustavo  |  January 11, 2010 at 5:05 am

    Great updates Rick. Thanks for doing this to you and the rest of the Courage Campaign. I really hope this gets televised.

  • 28. Josh  |  January 11, 2010 at 5:10 am

    Huh? Miriam, I'm sorry but the logic of banning gay marriage does not follow from your argument at all!

    Banning me and my husband from marriage is what "discounts the spiritual union, the intimacy of heart and soul, the economic benefits and the BONDING that I recieve from marriage" as you say. It relegates OUR relationships to sexual consideration.

    How does opening up marriage to others possibly affect yours at all? If my and my partner marrying would somehow affect the bond between you and your husband, then your marriage must be incredibly weak to start with.

  • 29. Lianne Lavoie  |  January 11, 2010 at 5:11 am

    Wow I didn't even know this trial was happening until 5 minutes ago! I live in Canada and don't really follow American politics too closely, but I'll be following this today. Same-sex marriage is legal here and marriage doesn't seem to be ruined for us… Get with the times, U.S.A.!

  • 30. Elijah N.  |  January 11, 2010 at 5:14 am

    The TSA agent said that to you? Fuck him, you DO have beautiful eyes. Your updates are great, keep it up. Only 32 people wrote in opposing the trial being televised? hahahahahahahahahahahahahahahahahahahaha.

  • 31. Melanie Nathan  |  January 11, 2010 at 5:14 am

    @Rick "They are now saying that we have to prove that gay marriage will NOT harm opposite sex marriage. By that logic, no change is allowed, progress is rejected, until we can prove that the change represents “no threat.”

    Per me – Well if you have an inherent right in the first place and it gets taken away, it would seem to me that change is the proposition that took it away – not gay marriage per se.

  • 32. Steffi  |  January 11, 2010 at 5:16 am

    thanks a lot for this tracker!!! I've so been looking forward to follow the case here in germany over youtube and now I'm not able to… so thanks for the updates!!!

  • 33. David  |  January 11, 2010 at 5:17 am

    Josh, please re-read. Miriam's post is saying the same thing as yours.

  • 34. ewon  |  January 11, 2010 at 5:18 am

    Josh, re-read Miriam's post. She is supporting same sex marriage. She is saying by banning same sex marriage you are actually negatively impacting the value of all marriage. Something like that.

  • 35. ewon  |  January 11, 2010 at 5:18 am

    Thanks for doing this. Fascinating. Appreciate it.

  • 36. Caitlin  |  January 11, 2010 at 5:23 am

    Do we know when they are breaking for lunch, or if they already have? I want to walk over to the live viewing in town, but want to time it correctly.

  • 37. Marissa  |  January 11, 2010 at 5:24 am

    equality marriage would probably improve the marriage statistics! not hinder it. i know more same sex couples who've been together a lot longer than opposite sex couples.

  • 38. Michael D  |  January 11, 2010 at 5:26 am

    I just donated, although a small amount, it is important to give something so we can keep reading this. It will be interesting to see what Diane Sawyer had to say about this tonight..or if it's on the news at all.

  • 39. Miriam Alario  |  January 11, 2010 at 5:29 am

    Josh, what I mean is that if we say that marriage is ONLY about one man one woman, it makes the object of marriage the pairing of genders, not pairing of souls, hearts or lives.
    That makes my Hetero marriage about ourgenders, and that DOES change what our marriage is about. If my husband were a woman, then the spiritual bond we have would no longer be considered legitimate reason for marriage. IT Does change my marriage to deny the right to Same sex couples.

  • 40. Rob Tisinai  |  January 11, 2010 at 5:37 am

    Is anyone live blogging this on the other side? I'd love to read how they're seeing it.

  • 41. Josh  |  January 11, 2010 at 5:39 am

    OK, got it now. Apologies Miriam.

  • 42. Melanie Nathan  |  January 11, 2010 at 5:47 am

    Rick I have written a story about the impact of prop 8 on my child oin school I wish I could use it to testify to show how inpractice it really hurts kids

    I truly believe that my child will suffer more emotional harm, through the perceived aberration of her family. It is so unjust and so unfair. Our children do not deserve to be the political pawns of the divisive and fearful bigots and religious right in our country. We are family values and we are entitled to equality. My children are facts of life and they cannot be relegated to some second class category that diminishes us as a family. As a Mom I vow to carry on fighting for the sameness my babies, by virtue of their very existence deserve

  • 43. Jennifer White  |  January 11, 2010 at 6:12 am

    Thank you for the opportunity to follow these proceedings! If Prop 8 proponents are set on marriage being about procreation-would they dissalow unmarried people to have children?

  • 44. David Kimble  |  January 11, 2010 at 6:37 am

    If the only reason for marriage is pro-creation, what does that say about elderly people, who remarry after they are left widowed?

  • 45. Janice Adams  |  January 11, 2010 at 7:12 am

    Or yet dissolve all marriages that produce no children for one reason or another.

  • 46. Robin McGehee  |  January 11, 2010 at 11:08 am

    Great Job Rick, great seeing you this AM – people are loving the live tracker – thanks for all the info.

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  • 51. don clanton  |  January 11, 2010 at 11:54 pm

    Rick, you are now an historical person of global dimension. Loud cheers for your reportage from Norway. Seems the whole world is watching! Ya-a-a-y Rick!

  • 52. DebraCJ  |  January 11, 2010 at 11:55 pm

    I think what Miriam was getting at is that banning same sex marriage harms heterosex marriage.

  • 53. Lorelei  |  January 12, 2010 at 12:26 am

    I'm a bit surprised at what Cooper is coming up with as his main arguments. It seems ridiculously thin, ordinary and kind of laughable. It makes me think that he's not really interested in winning at all. Could this be true??

  • 54. Mike  |  January 12, 2010 at 2:29 am

    I have been with my partner for 26 years and longer than most of my straight friends

  • 55. Serena Patterson  |  January 12, 2010 at 8:18 am

    My family went through this during the years when Canada debated same-sex marriage ad nauseum. I also have written on the experience (one of my pieces is in the book "Who's Your Daddy? Writings on Queer Parenting", edited by Rachel Epstein (2009). Excellent book. Even more now than in the 90's, the attacks on same-sex marriage are framed in terms of an imagined threat that our families pose to children. This was reinforced by the current pope, and his predicessor, who called adoption of children by same-sex couples "child abuse". What a hateful thing for a dying religious leader to leave as his legacy! Is life easier for us now, in Canada, with our marriage legally recognised and our children "legitimate"? Yes, actually, it is. Our "new" children, ten years younger than the first, talk about prejudice against homosexuals and lesbians as if it were part of the distant past. Our now-23-year-old is still angry and in pain from the years when she was torn between defending us and disowning us. It tore us apart, and we are trying to come back together as mother and daughter.
    What you are saying is so important; keep saying it. And you have millions behind you, including most especially me. Our children deserve to be protected from the bigots who would tell them lies about their family.

  • 56. Serena Patterson  |  January 12, 2010 at 8:28 am

    A dispatch from Canada, from an ex-patriot American Lesbian-in-Exile. So many of us thought, 10 years ago, that the fight for marriage didn't matter; that it was "assimilating" to heterosexual norms, or that it was a marginal issue. In my own circle, most of those people, if they are coupled, are now married! Why? First, it's a rights thing– there are specific rights that only marriage (not common-law, not domestic partnership) confers. As we get older, we need those rights. Second, if we have children, they need to have a way of talking about their families that communicates our-and their-equality. They need to feel, deep in their bones, that there is nothing inferior about the home and family where they are loved and brought up. Third, there has been a tremendous opening up of acceptance, and a growing consensus that open expression of bigotry against GLBT people is rude, if not deplorable. Our families now know other families with GLBT kids, and our partners get invited to reunions much more often. It's become matter-of-fact. Is that a good thing?? Well, OK, sometimes I miss being an exotic creature; the most radical family on the block. But not very often. There are other, more fun ways to be radical in your neighbors' eyes, than being the object of a hate campaign. For my children, I am very, very grateful.

  • 57. Felicia Mallon  |  January 20, 2010 at 6:48 am

    …or South Africa?

    All of these countries with same-sex marriage and yet we can't seem to be accepting enough to legalize it…

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