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Liveblogging Day 2: Part III

Liveblogging

By Rick Jacobs

And we are back from the break…

Thompson (defense lawyer): Now, he’s going after gender classification and its role in marriage.

T: Now onto religion in marriage. He’s reading from her own writing, talking about Christian model of monogamy, from the time of the colonists. In the history of this country both the church and state have influence marriage via conscience. He’s reading from her writings about Jesus Christ standing for the “innovation” of Christian monogamy.

Professor Cott: Want to make it clear since you are repeating my words outside of context, that I am using monogamy as within Christian precepts.

Judge Walker: Pre-Christian societies did not require monogamy?

Prof: As far as I am aware, in the regions in which Christianity arose, relationships were not restricted to monogamy. Christianity introduced the single partner for life as the marital regime.

T: One tenet of Christian monogamy was between a man and woman?

Prof. That was assumed.

T: Large sections of Christian society assume monogamy?

Prof: Yes, but also in others, too.

(T is headed into brothers not being able to marry sisters.)
T: Reads her own deposition about brothers being prohited from marrying sisters. He’s trying to get her to say that the injunction is biblical, leading to his conclusion that marriage is from the bible?)

Prof: Puritans believed in chastity before marriage and fidelity within it.
T: Proving that she wrote an article 34 years ago about puritans. The article is called Divorce in 18th century or something. He’s trying to make her an expert on puritans, but she says, “well, my article is half of one line in a thirty page article.”

Prof: I have not worked on this since the 1970s. I’d have to refresh my memory.

T: Let’s do that together. (Reads from her article.)

[UPDATE] 11:12 Thompson: He’s trying to say that “canon law” guided colonial law so that he can get to the point that religious law is important in today’s view of marriage.

Professor Cott: This is thirty five years ago. I don’t know if scholarship has changed.

T: Christian doctrine “filtered through” marriage law.

T: By end of the 19th century there was an alliance between Christian doctrine and monogamy by the government.

Prof: I was making that point about Mormon polygamy being eliminated by the government.

There’s back and forth about the history of marriage and family.

T: Reads from her book about “covenant marriage” which exists in Louisiana and Arkansas.

Judge: What is covenant marriage?

Prof: I think it is a pledge never to divorce. My sense is that it’s harder to get out of a covenant marriage rather than a regular marriage. I don’t know the specific provisions of covenant marriage.

T: Legislation that created covenant marriage in Louisiana is from Christian ethics?

Prof. Not sure.

DOMA Time! He’s reading from testimony around DOMA. And now he is asking her about Edmund Burke’s book that he says calls for a respect for tradition. She says she does not recall reading it, and if she did it’s a long time ago.

He’s saying that DOMA came from a respect for tradition; she says she assumes so.

T: Okay that gay may can marry a lesbian. In that sense, sexual orientation is not literally what law prescribes in marriage?

Prof: Man and woman were able to marry. That’s all I can say.

T: Pulling out Iowa deposition, Tab 2

[UPDATE] 11:27 (I’ll put this up now even though its short because there is a lot of rapid back and forth. Prop. 8 is trying to show that Prof. Cott supports complete devolution of marriage.)

Thompson: reads from her Iowa deposition that says that since gay men and lesbians have married each other, the law is literally not against homosexuals marrying.

He’s asking a lot of questions about the history of marriage, now in California starting in 1851. He’s making the point that “coverture” was not a part of California law. She responds that there was still asymmetry in male-female marital relationships. She says that even under community property laws, men were the managers of the family property and could dispose of it.

So it looks like he’s going to state’s rights, to say that states (California) make their own marriage laws and federal courts have not involved themselves. Coverture evolved away, were not changed by federal courts.

T is now going down the path that love and long term commitment are not legally required in marriage.

T is trying to use her own writings to show that marriage is a fragile institution and that its devolution is the cause of changes in the public’s mores and law.

They are back and forth about Clinton’s infidelity. Prof says that the public saw the issue as one between and Hillary and Bill Clinton, not the state.

T asks that witness be instructed to give yes or no answer rather than speeches. Judge says, “well you got your answer. But I don’t know that we need to talk about Bill and Hillary Clinton.”

[UPDATE] 11:44 Thompson is reading from her work that says that the past 25 years do not show that American attitudes toward marriage have changed. He reads from her writing about what the supporters of DOMA said. He quotes from Sen. James Talent of Missouri who wrote about the essential need to maintain marriage as between a man and a woman, without which society will fail.

Thompson is good. He reads these quotes really well, with great emphasis where appropriate. He’s showing that the American people still think marriage is between a man and a woman. And he cites her writing as saying that proponents of DOMA worried that same sex marriage was a slippery slope to polygamy. She agreed that that’s what they said.

He’s talking about a course she taught in 2007 on marriage. He tries to get her to say that Andrew Sullivan’s book is the best anthology on marriage today. She said it was “adequate” but she can’t say it was the best.

They are now into the changed circumstances that she believes makes same-sex marriage appropriate. One change is that homosexuality is now not thought of as a choice. And younger people support same-sex marriage. And male and female roles have changed within marriage. Together, these circumstances allow for marriage to be “enact(ed)” for same sex couples.

He’s moving down a new path now, talking about the need to have balance between men and women in society (by numbers).

Talking about changed circumstance of divorce. Professor Cott cannot identify in any “complete way” the effect of no fault divorce. Wants her to agree that from a societal perspective no fault divorce changed the relative standing of men and women within marriage; she said “I don’t know.”

T: Do you believe behavior is infinitely malleable with the exception of self-preservation?

Prof: Yes.

(Prop. 8 is caucusing to see if they are done.) They are.

[UPDATE] 12:08 Boutrous (lawyer for the plaintiffs) is up again on redirect. This professor is amazingly calm and consistent. He’s asking about why she wrote the book PUBLIC VOWS. She says it’s because marriage has been a vehicle for shaping gender roles. During the research, I learned and was shocked to see how marriage law was used punitively. I had no idea that marriage was used punitively and restrictively, yet most of them had gradually been seen to be a bar on liberty and had been dismantled. This led to my thinking about marriage for same-sex couples and the extent to which the state had entered into prescribing spousal roles (as the third party to a marriage). Those things moved me very solidly to support couples of the same sex to marriage because it is a civil right to marry whom you choose.

The fact that marriage is so alive and vigorous today and that same sex couples want access to it shows how far it has changed. Like our constitution, it has certain elements that have remained the same but it has adjusted to the times.

The elimination of coverture and racial prohibition changed marriage in a very positive direction. There was a great deal of negative sentiment expressed in 1970s like swinging, open marriage—many many complaints about restraints within marriage. Since the 1980s and 1990s, both because of groups on the right like Focus on the Family and because of the advocacy of same sex couples to enter the institution we don’t see a critical perspective of marriage looming, but that it is highly honored as an institution. By clearing away from marriage the aspects of restrictions and instead moving to the emphasis on liberty strengthens the institution.

Mr. Thompson raised ‘disesetablishment’ of marriage about which you wrote. I analogized it to disestablishment of religion which opened it up to more variety of religions rather than one established religion. Marriage is similar: disestablishment in this case means that marriage does not have a single establishment perspective. What is the investment by the state in marriage? An amplified understanding of the institution of what it can accept including same sex marriage makes sense. (Disestablishment here means that the state does not impose a singular structure within marriage, ie., that roles within marriage are up to the married couple, but the state’s role is to sanction that marriage, not define how the two must relate. Hence, the role of women changed within marriage to equality, for example.)

Mr. Blankenhorn uses the word “deinstitutionalization” as a negative. From the 1960s on, we saw the “banalization of mores,” meaning that what was once outside of social acceptance is now “normal.” The rate of increase of divorce plateaued in 1981 and has not risen since. So we see that the real worry that MR. Blankenhorn seems to have that same-sex marriage will increase divorce rates is not warranted. The changes within heterosexual couples is what has changed the way marriage works and the normalization of relations outside of marriage.

Impossible to see any effect whatsoever on divorce rate in Massachusetts since same sex marriage passed five years ago. Not enough data.

Boutrous is now going to the issue of whether no-fault divorce accelerated divorce rates. It represented the change that the state was no longer interested in deciding what broke up a marriage, that specific performance of gender roles. It reinforces mutual consent and choice about marriage ending so it open the door to same sex marriage because its all about consent.

Boutrous asks if there were alarm bells raised about the decline of marriage due to no fault divorce? Cott said she cannot distinguish among the many alarm bells that were raised, none of which really seemed to have had any veracity.

[UPDATE] 12:26 Boutrous walked down a whole series of questions showing that Prof. Cott thinks children are very important in the construct of a family. She then says that same-sex relationships exist and kids will be part of those families so to establish social order, the state should want to open marriage to same sex couples. It will make society more stable.

Boutrous now goes to polygamy because Prop. 8 wanted to show that Prof. Cott supports polygamy. She says I absolutely did not and do not endorse legalizing polygamy. She is now able to show that most states do not prosecute relationships that are private even if they are illegal. Polygamy is an example. It exists and is illegal, but the state does not prosecute. The same is true of adultery, which is still illegal in a lot of states, but the state does not prosecute it.

Boutrous asks if same-sex marriage will lead to a slippery slope toward polygamy. Prof. Cott says no, of course not. There was a theme of polygamy equaling despotism vs. two partners being choice and equality in relationship. In other words, polygamy is a form of despotism while single marriage is an extension or even the building block of American democracy. (This is really good. I had never thought of it this way before. There is a strong chord in American political society that recognizes that couples marriage builds on choice while polygamy is anti-democratic.)

Boutrous is now pushing back on Prop. 8’s attempt to show that we are a Christian nation that has a Christian view of marriage. Prof. Cott says that there is separation of church and state. Prof. Cott supports the institution of marriage and judging by the way they have conducted themselves in the campaign for marriage over the past twenty years, allowing them entry into the institution will very likely strengthen the institution.

Judge: You describe marriage as an institute of government. How did the state or government become the principle formulator of the rules for this governance rather than through private arrangements? (In other words, why is government in the marriage businesses, his theme from yesterday?)

Prof: We inherited marriage from the colonists. In monarchies, the state formed a bond with the church in order to control marriage. England is an example.

Judge: State regulation was not invented in the US? What drove the growth of the state’s involvement in marriage? Is state’s role in US in marriage more vigorous than in Europe?

Prof. Cott: Marriage in the US was far less involved with ecclesiastical authority than in Europe, partially because religious authority was less established here. The state in the US considered regulation of marriage of part of its police power.

Judge is trying to distinguish between private governance and state governance.

Prof. Cott says that it’s a unique public-private engagement. There has to be a contract between the marriage partners, but that relationship is only recognized if the state says so.

Judge: What is government’s role? In the absence of the bargain that the state regulates marriage, harms will be done?

Prof. Cott: Yes, it’s in the state’s interest to regulate marriage.

Break at 1225 until 1:30. (I’m a little tired. I need to go get food and back for the next round! The judge is really, really interested in whether or not the state should even be in the marriage business. Fascinating!)

[NOTE]: I started a new thread for the afternoon session over here.

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95 Comments

  • 1. Richard  |  January 12, 2010 at 4:08 am

    "Let's do that together." What a condescending little (insert your favorite derogatory term here).

  • 2. Matt87  |  January 12, 2010 at 4:12 am

    Thompson is a jerk and Cott is one-upping him on every point.

  • 3. FishyFred  |  January 12, 2010 at 4:13 am

    Doesn't Thompson's examination of Christian ideals of marriage rely on the erroneous idea that America is a Christian nation?

  • 4. Steffi  |  January 12, 2010 at 4:13 am

    "Thompson seems to be trying to establish that american marriage law is based on christianity"
    Really great site with bible excerpts on the Topic.
    a must read 😉 http://wouldjesusdiscriminate.org/

  • 5. Zach  |  January 12, 2010 at 4:13 am

    Seriously. Here's another little snide tidbit from Thompson,
    Via twitter http://twitter.com/bilerico/livetweeting-prop-8
    "'Talking about covenant marriage. Cott: "It's a pledge never to divorce, is that it?" Thompson: "Well, you're the expert." '

  • 6. LostBoyJim  |  January 12, 2010 at 4:14 am

    Here is a link to the article in question, "Divorce and the Changing Status of Women in 1Eighteenth-Century Massachusetts.

  • 7. LostBoyJim  |  January 12, 2010 at 4:14 am

    http://www.jstor.org/pss/1921717

    (link isn't clear on first post, sorry).

  • 8. Matt87  |  January 12, 2010 at 4:15 am

    Thanks but I don't see a link :(

  • 9. Matt87  |  January 12, 2010 at 4:15 am

    Ok I see now.

    Lag in communication.

  • 10. fiona64  |  January 12, 2010 at 4:17 am

    Yep, a myth commonly promulgated by those who missed a couple of days in high school civics. :-/

  • 11. Robert A.  |  January 12, 2010 at 4:18 am

    What a great group. Not only is Rick doing a bang-up job but other pitching in with links to the referenced materials is awesome. I'm not getting any work done thanks to all of you, by the way.

  • 12. FishyFred  |  January 12, 2010 at 4:18 am

    I gotta say as much as the Yes on 8 folks have deplorable views on this subject, Thompson seems like a really talented lawyer.

  • 13. Dr. Lao  |  January 12, 2010 at 4:21 am

    What ever happened to separation of Church & State??

  • 14. Steffi  |  January 12, 2010 at 4:22 am

    totally agreed! :)

  • 15. Steffi  |  January 12, 2010 at 4:23 am

    agreed

  • 16. Tori  |  January 12, 2010 at 4:25 am

    This whole line of questioning/arguement is talking about the christian influence on marriage, however we as a country are not supposed to have a set religion… buereaucratic bigotry much? If this "sanctity of marriage" arguement is explored I don't believe that non christians should be able to marry, just from that standpoint. I myself am a very liberal, gay, non christian so who am I in this context… no one.

  • 17. BobN  |  January 12, 2010 at 4:25 am

    Christian monogamy is a DIRECT result of Roman monogamy. The Christian tradition, coming as it did from Jewish roots, would have been more disposed to polygamy (though, by the time of Christ, I think even Hebrew polygamy had waned).

    Odd the Prof. didn't mention this.

  • 18. Tim  |  January 12, 2010 at 4:26 am

    I am getting a warning that website is unsafe to view due to scripting errors ad buried trojans.

  • 19. John  |  January 12, 2010 at 4:31 am

    Here! Here!

  • 20. Richard  |  January 12, 2010 at 4:32 am

    Judge says, “well you got your answer. But I don’t know that we need to talk about Bill and Hillary Clinton.”

    Snap!

  • 21. Jane  |  January 12, 2010 at 4:36 am

    shame nothings been brought up that it's only been since the 1990s that maritial rape was illegal in all states. Another updated aspect of marriage.

  • 22. Karen H.  |  January 12, 2010 at 4:37 am

    Thank you so much for covering this. I'm reading every word, and refreshing constantly. Yours is the best coverage I've seen. Thanks again!

  • 23. Steffi  |  January 12, 2010 at 4:41 am

    I never had any problems and I've vistited it about a thousand times
    I have however downloaded many of what it's writing on it if not all I could send it as a PDF if you want.
    just write me an E-Mail on tiffyk@gmx.de

  • 24. RW in LGB  |  January 12, 2010 at 4:42 am

    I think Thompson is framing his approach as if this were a jury trial. And I think (hope–!) the judge is not going to fall for it.

    So far, the defendants' arguments center on Christianist views of marriage as a sacred covenant, and the State's interests in regulating it have ONLY to do with protection of the procreative environment itself and nothing else. Those are two fallacious lines of reasoning vis-à-vis the State's regulatory role, aren't they?

    I think the Prop H8 people are seeing the writing on the wall. They WILL lose this round, and there's a good chance that they WILL lose in the SCOTUS on Fourteenth Amendment grounds (all signs point to gays and lesbians being afforded Suspect Class status, and I don't see how that could be put aside in the SCOTUS). I predict that DOMA is on its last gasping legs if this goes our way.

  • 25. Rachael  |  January 12, 2010 at 4:45 am

    Thompson pwnd! haha.

    I hate that Thompson wants to limit her answers to yes or no. Nothing about this discussion on marriage is a clear yes or no.

  • 26. Robert A.  |  January 12, 2010 at 4:46 am

    I certainly hope so.

  • 27. SIH  |  January 12, 2010 at 4:50 am

    Wondering if the wifi is still AT&T. I'm not getting updates. AT&T is one LOUSY provider as this iPhone owner knows all too well.

  • 28. jstueart  |  January 12, 2010 at 4:52 am

    Wow I started to get a Dr. Seuss moment when I read about covenant marriage there. As if, once we got marriage, the Right would call theirs "covenant marriage"— just like the Star Bellied Sneetches changed their look once everyone had a star….

  • 29. Urbain  |  January 12, 2010 at 4:59 am

    Since the defense is arguing about Christianity's role in marriage, I thought I'd share some extremist Christian responses while we're waiting for new updates (I coded them to open in new windows/tabs so that this page remains open):

    First, a disturbing article that AU published on its blog just a little while ago…

    Second, an imprecatory prayer regarding the federal court case

  • 30. Dr. Lao  |  January 12, 2010 at 5:01 am

    Wow. I to make some popcorn with extra butter. I hope the Supreme Court says yes to the cameras.

  • 31. Alan E.  |  January 12, 2010 at 5:07 am

    "What I realized was that marriage has not been static, it’s shed its attributes of inequality, shed it restrictions. It’s like our US Constitution to adjust to changing circumstances, it is alive."

    This quote (from http://seminal.firedoglake.com/diary/23644 liveblogging) has been my favorite part of the trial so far. It sums up the base argument that can't be refuted.

  • 32. FrancoisTrueFaux  |  January 12, 2010 at 5:09 am

    Agreed, he's quite a litigator. He's not going to make it easy on Olson, Boies, & Co.

  • 33. Dieter M.  |  January 12, 2010 at 5:09 am

    They won't allow cameras, because then when the pro prop 8 side loses they wouldnt be able to say that it was struck down by an activist judge. By not allowing the cameras, to show the truth, the supreme court gives itself an "out" to overturn Judge walkers decision to strike down prop 8, effectively eliminating the whole DOMA idea.

  • 34. Michael in Oregon  |  January 12, 2010 at 5:12 am

    I echo everyone's sentiment on this! This is by far the best reporting I have read.

    Oh how I hope we will be able to watch this!

  • 35. MalibuJenkins  |  January 12, 2010 at 5:12 am

    Thanks for doing this! Love conquers hate.

    someone has probably already posted this, but its a great article by T Olson and why he took this case.
    http://www.newsweek.com/id/229957

  • 36. Dalton  |  January 12, 2010 at 5:12 am

    Sorry, I'm not a legal person – is there a possibility the Supreme Court would not hear this case if Walker overturns? :(

  • 37. Sarah  |  January 12, 2010 at 5:14 am

    I wouldn't be surprised at all but I think it would be futile on their part.

  • 38. Sarah  |  January 12, 2010 at 5:19 am

    "He’s moving down a new path now, talking about the need to have balance between men and women in society (by numbers)."

    What? And how would equal marriage rights impact this? This is why I really wish we could see the broadcast -I don't understand this statement at all.

  • 39. Urbain  |  January 12, 2010 at 5:20 am

    There is a possibility. Most believe they will hear the case.

  • 40. Urbain  |  January 12, 2010 at 5:21 am

    My thoughts exactly, Sarah.

  • 41. Ryan H.  |  January 12, 2010 at 5:21 am

    Excellent quote Alan! It's alive!!!!

  • 42. rrp  |  January 12, 2010 at 5:31 am

    I think it is being recorded because they were streaming the footage to rooms in the court building. It just can't be posted to YouTube.

  • 43. Jeremy  |  January 12, 2010 at 5:32 am

    It would seem obvious to a normal person with a basic grasp of logic and English vocabulary, but much recent case law has gone in the other direction. Keep in mind, DOMA was upheld in the Supreme Court as late as 2005.

    If you want to get really pissed off, I recommend reading about Baker v. Nelson and the subsequent cases where it has stood as precedent. The main job that Olson and Boies must do is substantially differentiate their case from that one, and it's going to be a difficult task. Right now, the case is about relationships and families. Soon, it will be about case law, and the rules that the court MUST follow, such as stare decisis.
    http://en.wikipedia.org/wiki/Baker_v._Nelson

  • 44. Tiffany  |  January 12, 2010 at 5:33 am

    Just want to echo the general sentiment: Rick and the CC team, thank you SO much for doing this! It means a great deal to those of us who can't be there in person.

  • 45. Nicholas  |  January 12, 2010 at 5:35 am

    Rick, Thanks for all your hard work!!! It's greatly appreciated!!!

  • 46. Patrick Regan  |  January 12, 2010 at 5:37 am

    +1 on all the comments of appreciation. I get more up-to-date info on Twitter, but Rick an the CC give a much more in depth look at what is going on.

    I'm on the opposite side of the country, but I feel a lot closer due to Rick's commentary.

    Thank you so much.
    Pat

  • 47. Warren S  |  January 12, 2010 at 5:39 am

    Great work Rick/CC!

    You guys really are the new face of activism we need in the community.

    Walker seems to be leaving open the option to get the state out of the marriage business altogether. How ironic if because of the passage of prop 8 marriage was destroyed, when the CA Supreme Court strengthened it as a civil institution in 2008. Given the description of Walker as libertarian such a ruling is not inconceivable. Where that goes on appeal who knows?

  • 48. jon  |  January 12, 2010 at 5:39 am

    There's a compelling argument that our federal Constitution isn't Christian in nature because many of its authors were deists, but the kinds of laws such as we're discussing (marriage) that were left to the states are very much Christian in origin as point of historical fact. That in no way validates them, and that's the point of the civics lesson these people missed.

  • 49. Dr. Lao  |  January 12, 2010 at 5:39 am

    Thanks for all the hard work you're doing, Rick! We really, really appreciate it! :)

  • 50. fiona64  |  January 12, 2010 at 5:39 am

    So far as I know, that article is still present in the CA Constitution.

  • 51. Lo  |  January 12, 2010 at 5:41 am

    as quoted from above "…it is a civil right to marry whom you choose."
    its all it should come down to. simple, yet too complicated for those who have the right, since they've never been in the position.

  • 52. Glenn I  |  January 12, 2010 at 5:41 am

    It would be wild if the fundies had to change the name of their marriage rather than the other way around.

    "Are you married?"

    "Yes, we are fundie-married."

    "What about you?"

    "Oh. Just regular."

  • 53. Theresa  |  January 12, 2010 at 5:46 am

    i really hope someone buys rick a drink AND lunch!

  • 54. Blue Raven  |  January 12, 2010 at 5:47 am

    There was a theme of polygamy equaling despotism vs. two partners being choice and equality in relationship.

    This is biased nonsense. ONE form of polygamy is despotism. Adults voluntarily entering into a multi-partner relationship is choice just as much as two-person marriage is. Demonizing all forms of polygamy when only polyandry has been used in a demeaning fashion is prejudicial and short-sighted.

  • 55. jayjaylanc  |  January 12, 2010 at 5:48 am

    I'm not much caring for the denigration of polygamy, although I realize it's necessary to put the slippery slope argument to bed. Polygamy is, in an absolute sense, no more despotic than monogamous marriage had been up until about 30 years ago (or, rather, say that monogamous marriage was at least as despotic as this theoretical polygamy up until about 30 years ago). Not all polygamy is in the offshoot Mormon model.

  • 56. Michael D.  |  January 12, 2010 at 5:51 am

    Thank you, Rick, for making this day my LEAST productive work day ever.

    You are awesome!

  • 57. David Kimble  |  January 12, 2010 at 5:53 am

    Yes, there is entirely a chance the Supreme Court will hear the case, but the losing side has to show due cause as to why the Supreme Court should hear the case. From what I have read of the trial so far, I cannot see any justification, as to why the Supreme Court would hear the trial. But, hey, the trial is not done yet.

  • 58. Morgan  |  January 12, 2010 at 5:54 am

    Many people who have that right understand it — I think of how easy it was for my husband and I to decide whether to make it legal or not, and continue to fight so that others who don't have the same relative plumbing we do can have the same options we do.

    But you're right in that there are too many people who look at the world with blinders on and can't (or won't) comprehend how others can see it differently. I'll admit, sometimes I have trouble really understanding the narrow viewpoints of the willfully blind.

  • 59. dr gonzo  |  January 12, 2010 at 5:55 am

    Your work here is the BEST!

    You're awesome.

    Thanks so much

  • 60. David Kimble  |  January 12, 2010 at 5:55 am

    I wanted to add my thanks for your coverage of this trial, Rick. Kudos and many thanks! I also understand how tiring it must be to do provide all of this for us and was wondering if you are accepting private donations?

  • 61. John Kusters  |  January 12, 2010 at 5:55 am

    Yeah, I was thinking the same thing as I read that. However, since polygamy (or polyamory as many would call it today) is a big fear of the religious right, perhaps it's not constructive to call out the difference… :-)

  • 62. Kevin  |  January 12, 2010 at 5:59 am

    Yeah, Walker is allowing today's testimony to be recorded in case SCOTUS comes back favorably tomorrow.

  • 63. jstueart  |  January 12, 2010 at 6:00 am

    My question is why is NO ONE ELSE doing this kind of coverage? None of the major news outlets are even coming close??? This is a MediaFail moment.

    Anyone could be liveblogging this from CNN or NBC or CBS, and no one is….

    Are they gonna wait for the movie?? Or for the Supreme Court trial??

    How many of them wished they could have covered the landmark Civil Rights trials of the last century? And here's one happening, and it's virtually being ignored on the news stations except to say that it's happening, and here are some guests. But having Rick do this proves that there is a lot of news within this trial. That this is something every American should be hearing.

    Why is this trial happening in the Closet??

  • 64. jstueart  |  January 12, 2010 at 6:02 am

    Rick, you ARE doing an awesome job!! Without you, we wouldn't have anything!

    I'm reminded of the lone videographer from Christianity Today who covered Gene Robinson's magnificent prayer for Obama's inauguration. No other news station was there, and her video alone is the only archival footage of that prayer.

    Thanks, Rick! You are saving history.

  • 65. Kevin  |  January 12, 2010 at 6:02 am

    Boies and Olson will be on Rachel Maddow tonight, 6:25 PST

  • 66. David Kimble  |  January 12, 2010 at 6:10 am

    what channel?

  • 67. Kevin  |  January 12, 2010 at 6:11 am

    MSNBC

  • 68. M  |  January 12, 2010 at 6:13 am

    Speaking as a Mock Trial participant (that's my extent of experience with trials, but it still sort of counts) it's typical lawyer practice, especially during cross-examination, to keep your witness as controlled as possible and to force them into yes or no answers. When we get to the other side you'll see Olson and Boies do exactly the same thing.

    It is too bad to watch her responses get chopped up like that, but that's why there's redirect — to draw out the necessary explanations that Thompson cuts off.

  • 69. David Kimble  |  January 12, 2010 at 6:14 am

    thanx – I will watch!

  • 70. Maura  |  January 12, 2010 at 6:25 am

    Just wanted to second the huge thanks and inquiry about donations.

  • 71. jstueart  |  January 12, 2010 at 6:27 am

    This just in from Iowa. No one's going to allow discussion of an amendment to overturn Iowa's unanimous court ruling on same-sex marriage, and this is a great statement.

    "We have to keep Iowa equal, and I'm going to do everything in my power to make sure that happens," said Mike Gronstal, Senate Majority leader.

    Posted by the Advocate! I love the emphasis on making people equal or unequal.
    http://www.advocate.com/article.aspx?id=105394&am

  • 72. Tavin  |  January 12, 2010 at 6:34 am

    I just want to say a huge thank you to Rick Jacobs and the Courage Campaign for liveblogging and hosting this. This is, by far, the best account of what is happening in the courtroom and I am fascinated by what has and continues to transpire within.

  • 73. Rachael  |  January 12, 2010 at 6:36 am

    M,
    That makes sense.

    I just find her comments fascinating and wish they'd let me hear more about her research. I'd have liked to hear her full responses to his questions and not have her work taken out of context (because I'm sure that's the point of this trial- to teach me about Marital history and American Culture, right? haha)

  • 74. Julian Morrison  |  January 12, 2010 at 6:38 am

    Patriarchal polygamy is anti-democratic, but modern polyamory is most certainly not!

  • 75. Julian Morrison  |  January 12, 2010 at 6:42 am

    It's not advantageous to throw popular scapegoats under the bus to prove you're un-threatening. It never convinces your opponents, and it makes you into the quotable bad guy when the other party's inevitable fight for of civil rights rolls around.

  • 76. Anne  |  January 12, 2010 at 6:44 am

    I really hope the transcript from the trial gets published. There have been some wonderful arguments just in the first day and a half. And I've learned so much about the history of marriage! This is a classic trial.

    I really don't see what the people in favor of prop 8 can argue now.. .they can't say "marriage has been this way forever" … they can't say "it's for the kids" after the discussion of why this ban is bad for kids of same sex marriage. … guess they can argue that the Christian religion should be embedded in our constitution, but that is SO unconstitutional. I think they're down to "wah! gay sex is icky!" as their only argument…

  • 77. tess  |  January 12, 2010 at 6:58 am

    Rick – thank you so much for your work!!

    Does anyone know of any more local (LA/OC) rallies or demonstrations?? I can't find any sites or information!

  • 78. Madjoy  |  January 12, 2010 at 6:59 am

    Agreed, thanks for posting this liveblog! Following this, Firedoglake, and the San Jose Mercury News has kept me completely up-to-date on the trial.

    The most interesting aspect of the trial to me, so far, seems to be the relatively limited scope of Walker's questioning. His focus on whether the state should be in the marriage business at all makes me feel like he's leaning towards declaring the state's business in marriage unconstitutional! I'd personally be pretty OK with that – take away civil marriage entirely and replace it with civil unions with the same legal protections and benefits, and then allow private or religious marriage to be the basis for calling someone your husband or wife.

  • 79. RW in LGB  |  January 12, 2010 at 7:14 am

    I get so tired of people calling for the State to get out of the marriage business, when it's RELIGION that has horned in on the civil contract that is marriage.

    Marriage is a civil institution where two people form a social unit before the State, decalring allied and joint interests in mutual care, the care of family members in their circle including children, and management of property. The religious bullsh!t sacrament (which is really the WEDDING) followed the establishment of civil marriage by CENTURIES. After all– you have to go to the COURT to dissolve a civil marriage, don't you?

    Religious folk, keep the HELL out of my marriage. It's time to completely take away that temporary notary power that religious officiants have in order to make their wedding ceremonies legally-binding marriages. It should be like in Europe: EVERYONE gets a civil wedding, and the RELIGIOUS wedding is just a God-themed princess party.

  • 80. Steven  |  January 12, 2010 at 7:28 am

    Adding to RW in LGB…

    let's get rid of that tax exemption that these churches get as well.

  • 81. Marlene Bomer  |  January 12, 2010 at 7:58 am

    The opinion of the reicht is that because it's not spelled out plainly in the Constitution means it's invalid.

    Remember that these folk are on the strict constructionist side of the aisle — meaning the Constitution is unchanging aside from the Amendments, and the judiciary are "activists" when they declare something un-Constitutional which isn't perfectly spelled out. Perfect circular thinking.

  • 82. 3ringquercus  |  January 12, 2010 at 7:59 am

    Hear hear, RW. Marriage law is the last sector of civil code that is still governed by a religious sensibility. That's why the religious right is fighting so hard: this won't mean the end of marriage, far from it–but it does mean the beginning of the end for Christian patriarchal culture in this country.

    I read Nancy Cott's book last year and it has profoundly affected by views on what marriage really is (and I'm a ten-year wedding professional!) Thank you Dr. Cott, for your powerful and marvelous testimony. We love you!

  • 83. Marlene Bomer  |  January 12, 2010 at 8:05 am

    Remember, Rachael that the religious reicht can't stand on their myths, lies and innuendo alone, so they do their best to take things out of context, and swist opinions and statements in order to justify their prejudice, hate, and bigotry! They've been doing it for generations!

    However, when I attempt to bring their perverted interpretation of their bible and put it into its historical, cultural, and sociologial context, they're unable to even fathom even basic criticism — they just whine about being "oppressed"…

  • 84. narcoleptic.kitten  |  January 12, 2010 at 8:20 am

    Thank you for the excellent coverage, and although I do not know if it is relevant to their case it should be stated that religion is MORE of a choice than sexuality I personally feel that the issue of choice or not is only brought up as a derailing tactic it has not relevance IMO.

  • 85. Marlene Bomer  |  January 12, 2010 at 8:20 am

    But it also depends on how many more Supreme Court Justices retire between now and this case reaches them, and who Obama replaces them with.

  • 86. Eric  |  January 12, 2010 at 11:22 am

    Why did we ever remove:

    “No contract of marriage, if otherwise duly made, shall be invalidated by want of conformity to the requirements of any religious sect.” – Article XI, section 12 of the California Constitution of 1849.

    from the California Constitution?

  • 87. Gil  |  January 12, 2010 at 12:48 pm

    In my opinion, this is how it’s gonna go down:

    – we (marriage equality) win at this level
    – it gets reversed at the circuit level
    – it goes to the SC

    the SC will NOT rule to the maximum on either side (neither allowing ssm in all 50 states, nor declaring existing ssm null and void). I think they will reach a compromise where the matter goes back to the states:

    – states that had clearly identied a right to marry (California) cannot have an amendment to ban it – we win California
    – states that never identified a right can keep their bans – so all red states won’t go up in arms about it

    and I also think we will win the mass case against doma which will force the federal government to recognize marriages where legally performed. This will be the end of it for several decades.

  • 88. Trey  |  January 12, 2010 at 12:53 pm

    Thank you for all of your hard work Rick – as a court transcriptionist, I know how hard this is! Keep up the amazing work, and THANK YOU.

  • 89. Rebecca  |  January 12, 2010 at 2:42 pm

    I think I just threw up a little bit…

  • 90. Me  |  January 12, 2010 at 10:29 pm

    Good points, I think I will definitely subscribe! I'll go and read some more! What do you see the future of this being?

  • 91. J.G.  |  January 12, 2010 at 11:26 pm

    T: Do you believe behavior is infinitely malleable with the exception of self-preservation?

    Prof: Yes.

    Whoa, she really said that?

    Does she think it's 1970, I wonder, or is she just really afraid of biology? I can understand that she said and wrote it once, but to not have had your mind changed by 2010…

    If so, it's pretty friggin offensive, not just to science, but to a lot of transgendered kids who know very early on that they can't change who they are.

  • 92. N, Mike Kerr  |  January 13, 2010 at 7:24 am

    Desires and drives are not behavior, those thing are not malleable.

    Behavior can be malleable and hide those things.

  • 93. Abby Dees  |  January 14, 2010 at 9:32 am

    I think the reason why they spoke about the whole polygamy=despotism idea is not so much because of a shortsighted understanding of polygamy but because of the original case that legally ended Mormon polygamy (mid-1800s sometime — don't have it handy). That old case is interesting to look at now as the court did NOT rely on morality arguments to uphold the state's right to restrict polygamous marriage but instead relied on arguments about how to create an effective democracy. However flawed that original thinking was, it was a surprising — and effective — legal argument at the time.

    So when people refer to the ban on polygamous marriage as proof that the Court can look at current mores and moral attitudes as basis to restrict marriage, they are historically quite incorrect.

  • 94. J.G.  |  January 15, 2010 at 7:09 pm

    @Mike Kerr:

    Some desires and drives are pretty malleable. For example, if I watched video of a slaughterhouse every morning, I could probably change my strong desire to eat carnitas burritos. Conversely, many overt behaviors are not very malleable (certainly not "infinitely" so). Scientific experiments, and other systematic forms of rational investigation, help us determine which is which. I'm just saying that, in 2010, it's a little unsettling when an expert on the side of gay rights seems to advocates radical social constructivism, which (a) makes her look ridiculous to anyone familiar with contemporary science on human nature (and sexual orientation / gender identity in particular), and (b) potentially plays into the hands of those who think homosexuals can easily "convert".

  • 95. jack  |  January 17, 2010 at 6:29 am

    As a transman, I have to say that I understand entirely where you're coming from J.G., but still side with N, Mike Kerr. I don't think she was saying you can change who you are inwardly, but what you do about it and how you handle it are absolutely choices. I could have lived out the rest of my life as a lesbian, secretly miserable with it on the inside but I could have made that into a happy life in some form. The choice I made was to forfeit that to be who I really am, which has been infinitely more difficult. Similar to a gay person hiding in the role of a straight spouse….doesn't change the fact that they are completely homosexual, but the decision to hide that is a choice.
    I have to say though, I am surprised by the defense's lack of hammering on that particular point by saying "well then it's true you believe homosexuality is a choice…" or something to that effect; she did certainly leave that door wide open by her choice of response.

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