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Liveblogging Day 11: Part III

Liveblogging

By Rick Jacobs

David Boies is still thoroughly embarrassing Professor Kenneth Miller on cross-exam.

B: Reads a lot of what Miller wrote about religious involvement in Prop. 8, including that Mormons only 2% of CA population, Mormons came from outside US to provide personnel and financial resources.

M: Yes.

B: What part of the support was provided to the No on 8 side by religious organizations?

M: I have no idea because I have not seen that information.

B: You know that religion was a critical factor in passing Prop. 8?

M: I cannot say that. I know it was a critical factor for some voters.

B: You wrote that researchers confirm that religiosity was critical in determining voter attitudes toward Prop. 8.

M: A critical factor, along with party ID, age.

B: You never said that religiosity was critical matter for some voters.

M: I should have. Don’t believe it was critical for all.

B: Look back at earlier pages for context where you say that many observers were mystified at how California was at forefront on equal rights for gays and lesbians, supported Prop. 8 could voted for Prop. 8. This is part where you say that gays and lesbians have all that powerful support, but you then say that apparent contradiction can be explained by examining religious characteristics of California’s Democratic voters. That’s what you are saying?

M: Some…

B: You don’t say “some.”

M: Looks at book…

B: Dr. Miller?

B: You believe that then and you believe it now?

M: You did not say it was an important factor? You believed it when you wrote it. Have you changed your mind since you wrote it in 2009?

B: This was a critical factor.

M: no polling…

B: You came in here as an expert. What is your opinion as to the other critical factors, not just factors?

M: I believe that religiosity is a critical factor.

B: Yes. But what others are critical?

M: Did not list any others that are critical, but others are important.

B: I promised your counsel would be done by now. I am over my time. Will you just focus on my questions?

B: Is it your opinion that the opportunity to establish ss marriage because state’s Dem coalition divided along religious lines?

W: Witness has been cross-examined for about two and half hours. He said an hour ago he was tired. Can we have a ten-minute break?

Judge Walker: There’s something about pots and kettles when it comes to long cross examinations, but we’ll take a break until 10 minutes after the hour.

(HUGE laughter).

[This is very, very sad. It’s boring in a way, but not like what the goof balls on the Prop. 8 side tried to do in their cross. They never, ever could get a witness on our side in a contradiction or even question. So they resorted to reading in over and over and over again articles and sections of books just so they could have them in the record. This witness has been so bent by his own contradictions and lack of knowledge and expertise that he has no shape whatsoever. And this is THEIR expert!!

We right now have them acknowledging that religion played the key role. Stay tuned. This is vital stuff. Remember that never, ever in our history have we had this opportunity to air the vitriolic reasons that Prop. 8 was passed, that homosexuality has been condemned by institutions for decades and hundreds of years. So of course we are a suspect class and the courts are our only line of defense.]

[UPDATE] 10:36

Judge Walker: Mr. Boies, you may continue.

B: Admits exhibits.

Judge Walker: Yes.

B: One other housekeeping matter. Prof. Miller, you have the exhibit that is the list of materials you relied on?

M: Yes.

B: You circled the ones you were sure that you obtained by yourself.

M: Yes.

B: By my count, you circled about 23% of the exhibits that you provided?

M: I can’t say. Less than half.

M: Maybe I should explain the question marks if you want to know?

B: Go ahead.

M: Difficult for me to sort out those that I found about religious organizations versus those that counsel provided.

B: I do want to follow up what you just said. You are aware that Dr. Nathanson put in a report?

M: Yes.

B: If you received any Nathanson material you would have gotten from counsel?

M: Yes.

B: I would submit that about 180 of the items you put question marks by are on Nathanson’s list. You would agree that you got them from counsel? Not coincidence that you both have?

M: I got documents—some but not all—from counsel.

[Which is French for yes, he did not do his own work.]

B: Is it your opinion that the opportunity to establish gay and lesbian marriage in CA was lost in large part because the state’s Dem coalition divided along religious lines?

M: The sentence says “opportunity.”

B: I don’t care what sentence says. Do you agree?

M: In large part, yes.

B: The evidence indicates that many of states Blacks and Latinos cast Prop. 8 in religious terms so that they could vote for civil rights, for Obama and for 8 without contradiction. What evidence?

M: Exit polls that showed that blacks and Latinos voted for Prop. 8. Some but not all mobilization took place in churches.

B: As political scientist, do you believe that a religious majority should not be allowed to impose its views on a minority?

Thompson: Objection.

Judge Walker: Overruled.

B: From time to time in world history, religious majorities have been able to impose it religious principles on minority. Is that an undesirable way to organize society?

M: As a general principle, yes.

B: As a general principle that a religious majority should not be able to use law to impose its view on minority?

M: Might be some exceptions, but yes.

B: As you sit here now, can you think of a time when a religious majority used its power to impose its view and that was good?

M: Abolitionists.

B: Were abolitionist a majority?

M: I don’t know.

B: They were not.
Judge Walker: Counsel is attempting to understand the witness’s views. If the witness would answer the questions directly, there would not be a need for these other questions.

Thompson: But world history was start of question, and I never raised that in direct.

Judge Walker: This is cross-examination, Mr. Thompson. Objection overruled.

B: As a general rule, is imposition of majority view by majority religion good for society?

M: No.

Ms. Pachter from AG: What is basis for your opinion that role of AG could ameliorate majoritarianism?

M: AG provides title and summary. Less pure majoritarian than if proponents writing title and summary/

AG: Is it your understanding that AG can write anything other than neutral title and summary?

M: That was contested by both sides.

AG: Your understanding of the law in CA is that AG must provide neutral title and summary or can provide opinion?

M: Law says that AG must provide neutral, but within AG’s office there is some discretion and this is key.

AG: One of things that people can do is go to court to challenge AG’s title and summary

Judge Walker: Can AG do more than provide a neutral title and summary for the initiative?

M: Different in different in states?

Judge Walker: We’re talking about California. The question is can the AG do more?

M: AG can take public position.

Judge Walker: That’s not my question. You don’t know? Is that your answer?

M: Yes, I do not know.

T: Did you review all 427 documents in appendix?

M: I tried to.

Thompson (T): Please relay methodology of understanding progressive religious involvement in Prop. 8?

M: Did extensive reading. Pew website provides important information.

Thompson: You were asked about some studies you had done about four decades of ballot measures in CA and Colorado and another state. How successful were CA initiatives in 1970s that had the potential to tap into a strain of anti-minority sentiment against G and L?

M: Only one I know of is 6 and it was defeated.

T: 1980s?

M: Three anti-HIV/AIDS that were anti-homosexual and were defeated by voters.

T: Goes to document from Prof. Segura.

[UPDATE] 12:13

T: Moves into evidence document from Segura that shows the 74% of homosexuals not in favor of marriage.

T: What is the measure of warmth of CA toward gays and lesbians?

M: 2006 Field organization poll said that close to 2/3 of Californians held either positive or neutral view of gays and lesbians.

T: Do you recall you were shown documents by Catholic and Southern Baptists?

M: Yes.

T: First principle here: “God loves all people and we love all people regardless of their sexual” preference or whatever.

M: That is consistent with my understanding of evangelical religious view.

T: Put in 30-second ad.

B: Objects.

J: Put in by plaintiff. I’ll look at it and see if it’s relevant.

T: Tries to play but it does not work. (The audio indicates it’s the Courage Campaign ad about the Mormons.)

T: We’ll try again later on that one.

T: Can you explain the evolution of your thinking on the initiative process since the time you wrote the Santa Clara law review article?

M: Since two decades ago, I pursued Madisonian critique and articles were very clear on comparison of majoritarianism with courts as institutional check on pure democracy. That was my approach to this until 2001 or 2002. Then I took research leave shortly after Goodrich decision. Paper I wrote in 2005 started to shift my thinking on this. I have a more favorable view of this process having reviewed since beginning of last century. See it as a way to allow people to express their popular sovereignty.

TR also thought direct democracy could express intuitional check on courts that were too activist. This is basis for my book on direct democracy that diverges from Madison. He believed that democracy harmonized in legislature. My later views showed ways courts could pull power from people. Initiative system is way for people to protect selves from court.

Conversation yesterday about state DOMAs, 11 from citizen-initiatives, but rest and majority from legislatures, which harmonize with, direct democracy. Taking out of hands of people by courts is too strong for courts. I think of it as different from protection of minority by courts.

M: I decided a long time after thinking about this, that marriage is different. People should have input on definition of marriage. Not invidious discrimination. Okay for people to come to consensus on it and courts should not impose selves.

Finally, I looked at Prop. 22. I looked at homos as vulnerable minority for that in 2000 when they raised $4 million to fight it (and lost). Prop. 8 they raised over $40 million and had enormous coalition. I may have been wrong to say that homos were vulnerable minority in 2000.

T: Other than marriage, what has happened with initiatives and gays and lesbians?

M: One or two in 1990s, but hard to find any others that hurt homos.

T: You recall Estridge Amicus Brief in which he says that there is forced education but not okay?

T: Puts up that ad that says teaching kids about gay marriage will happen in CA.

T: What messages does that ad say?

B: Objection. Beyond the scope.

Judge Walker: Clearly beyond the scope.

T: I’m just reading from the Amicus Brief in which Estridge says central means of defeating Prop. 8 was teaching kids that gay marriage taught in school as good as hetero?

Judge Walker: Just stick to the Estridge document.

T: Wants to play ad again.

B: Object.

Judge Walker: I thought you were on the right track, Mr. Thompson, asking about the article, not the video.

T: Asks one more time about whether teaching same sex marriage in school is same as religion imposing views.

B: No.

T: Defendants rest.

Judge Walker: You say it is never appropriate for judiciary to intervene in initiative process?

M: no.

Judge Walker: When is it appropriate?

M: Only when it violates federal constitution.

Judge Walker: Who makes that determination?

M: This is the first time that it has gotten to federal court.

Judge Walker: You made an interesting comment. You said that it is sometimes appropriate for courts to intervene. When is that?

M: When there is a well-grounded constitutional principle violated by initiative. That’s my view. The Estridge-Kane brief deals with state constitution. Must be a well-rounded constitutional reason to check.

Judge Walker: So it is appropriate for judiciary to intervene?

M: Yes.

Judge Walker: We’ll break for luncheon. I’m going to hear a motion suppress at lunch which means that we probably won’t reconvene until 1:15 or thereabouts.

Note: Mr. Thompson said at the beginning of his cross, “this is the last binder for this trial, Your Honor.” To which the judge said, “That’s a relief.”

[So we’re winding toward a close of this phase of the trial. We might indeed finish up today. They have a maximum of two more witnesses, probably one. The next phase is for the judge to think and review everything and then to reconvene for closing argument. Then, he’ll issue his decision.]

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319 Comments

  • 1. Barb - Lesbians Love  |  January 26, 2010 at 4:11 am

    …never, ever in our history have we had this opportunity to air the vitriolic reasons that Prop. 8 was passed, that homosexuality has been condemned by institutions for decades and hundreds of years. So of course we are a suspect class and the courts are our only line of defense.

    Amen Rick!

  • 2. Sean  |  January 26, 2010 at 4:12 am

    it almost seems like the yes8 side is trying to lose this case. Is there any strategy to lose?

  • 3. Caitlyn  |  January 26, 2010 at 4:13 am

    bahahaha, I love Boies AND Judge Walker. I just want to hug them.

  • 4. Happy  |  January 26, 2010 at 4:14 am

    Miller is the new Gumby. Bend and twist him any way you want to….

  • 5. Barb - Lesbians Love  |  January 26, 2010 at 4:14 am

    IMHO, I think this is the best defense they have right now.

  • 6. Layla  |  January 26, 2010 at 4:15 am

    I can't feel too bad for Miller, he chose his side but for his families sake, I hope they put a suicide watch on him after this is over.

  • 7. Happy  |  January 26, 2010 at 4:15 am

    Me too. I want to party with those two! LOL

  • 8. Ronnie  |  January 26, 2010 at 4:16 am

    "B: Reads a lot of what Miller wrote about religious involvement in Prop. 8, including that Mormons only 2% of CA population, Mormons came from outside US to provide personnel and financial resources."

    Wait a ding dong second…..this is a American only matter WTF!

  • 9. Russell V  |  January 26, 2010 at 4:16 am

    I loathe lawyers on general principle (lawsuit fraud, getting guilty parties light sentences, esp. celebs, etc.). But I swear I'll add Boies to my Christmas card list this year. The man is friggin' brilliant–a credit to the Bar. makes me think highly of what they can do. It's restorative to my faith in what this country's founders wanted this country to be.

  • 10. Ben  |  January 26, 2010 at 4:17 am

    Is there any limit to cross? Other than can only cover ground brought up in direct? Is there any way the defense can bail their guy out by forcing Boise to stop?

  • 11. Turner  |  January 26, 2010 at 4:17 am

    Daaaa-aang. I do honestly feel a bit sorry for Miller- 2.5 hours on the stand is grueling even when an expert's well-prepared, let alone in the situation of being asked to defend one's own assertions and having done nothing to re-acquaint oneself with those assertions before coming to the stand. It's his own damn fault, though: if you're going to offer an opinion that makes you an expert, it would probably behoove you to… you know… know what opinion you asserted and when. Especially when that opinion is specifically relevant to the question underlying the whole court case, for pete's sake!

    It is fascinating how the witnesses for prosecution were all quite solidly ready for the lines of attack they got- while the witnesses for defense were cross-examined in a truly… puzzling fashion.

  • 12. Russell V  |  January 26, 2010 at 4:17 am

    I agree–lose the case in Cali, rally support from religious groups to get funds to buy better lawyers. They'll need them, on the appeal.

  • 13. BMc  |  January 26, 2010 at 4:18 am

    <blockquote cite="Rick Jacobs">Remember that never, ever in our history have we had this opportunity to air the vitriolic reasons that Prop. 8 was passed, that homosexuality has been condemned by institutions for decades and hundreds of years.

    I think you've touched upon something here that I felt when I heard that Prop8 had passed. I wasn't angry or defeated at the time. I wasn't surprised at all. But while my friends were screaming and crying, I was feeling oddly optimistic about the next steps. I think this is why.

  • 14. abbe  |  January 26, 2010 at 4:18 am

    they can knock him unconscious during the break i suppose.

  • 15. Happy  |  January 26, 2010 at 4:19 am

    Might've meant outside CA, but possibly outside US. In that case, maybe they filtered the money through some front organization like protectmarriage.com, and sent foot soldiers to knock on doors, make calls, hang pro-8 flyers/signs, etc.

    Those devious BASTARDS!

  • 16. homogenius  |  January 26, 2010 at 4:19 am

    I'm not convinced that they are really the "A-Team". Are any of their attorneys of the stature of Olsen and Boies? Pardon me if this has been discussed.

    Remember who is paying them–the people who put on Prop 8. These are not the national players of the conservative movement. It looks to me like it's second string at best.

    But I agree, it certainly looks like they're trying to lose–it's hard to believe they could be this incompetent. I have no doubt that our team could make their case much better than they are.

  • 17. Kevin_BGFH  |  January 26, 2010 at 4:19 am

    Did he actually say outside of the US (and isn't that illegal)? Or is this a transcription error and he said outside of California?

  • 18. Al  |  January 26, 2010 at 4:22 am

    B: I promised your counsel would be done by now. I am over my time. Will you just focus on my questions?

    B: Is it your opinion that the opportunity to establish ss marriage because state’s Dem coalition divided along religious lines?

    W: Witness has been cross-examined for about two and half hours. He said an hour ago he was tired. Can we have a ten-minute break?

    (Paraphrase: Please Judge, any more slapping of our witness and it will look like a scene from the movie Airplane. HEEEEELPP!!!)

  • 19. Ronnie  |  January 26, 2010 at 4:22 am

    I don't know far stretch from CA to US….but either way I see now that prop ha8te did in fact not keep it at a state by state level or in this case if it is true that they had help from those who are not even American…..that is illegal….yeah?

  • 20. Happy  |  January 26, 2010 at 4:23 am

    I think money would be illegal if originated outside of US, not sure about personnel.

    If no foreign contributions IS the case, the big to-do about the Supreme Court changing contribution laws to allow corps. to give to campaigns is no big deal, since we know that most large corporations are owned by foreign sources (sarcasm).

    An aside, but one I felt compelled to touch on in this case.

  • 21. Mouse  |  January 26, 2010 at 4:23 am

    If you want to resort to fear-mongering conspiracy theories – there are arguements that polygamy logically follows same-sex marriage. Could the LDS church have spent all this money campaigning against same-sex marriage with the goal of losing in the Supreme Court and paving the road for acceptance of polygamy?

  • 22. Grant  |  January 26, 2010 at 4:23 am

    My thoughts exactly – which is why it is even more sad that only a few of us (relative to the general population) are even seeing this played out in court. But the judge is certainly hearing it – and he's the one to decide (this round, anyway).

    I keep telling straight people I know to check this site and FDL out to follow the trial – it's SO interesting (even for those who don't feel personally involved). I hope they do.

  • 23. josh  |  January 26, 2010 at 4:23 am

    My feeling is they are trying for a mistrial. in lue of that, they might be just trying to get this over with, expecting the scotus to back them on conservative holding.

  • 24. Sean  |  January 26, 2010 at 4:26 am

    how would this lead to a mistrial? because their logic doesn't make sense?

  • 25. JefferyK  |  January 26, 2010 at 4:26 am

    I hope that the testimony during this trial is bring home a point that was swept under the rug during the Prop 8 campaign:

    PROP 8 WAS A RELIGIOUS CRUSADE AGAINST LGBT

    The question is: How does one fight a religious crusade? They don't need to have facts on their side; belief will do. You can't reason them. So how do you stop them?

  • 26. Barb - Lesbians Love  |  January 26, 2010 at 4:27 am

    You stop them by first getting Olsen and Boies on your side!

  • 27. Alan E.  |  January 26, 2010 at 4:27 am

    The defense will come up with the point that the numbers don't match up. There are 18 million Catholics and Evangelicals, but only 7 million voted Yes on 8.

  • 28. Ray Harwick  |  January 26, 2010 at 4:27 am

    Back when I saw JAWS I often wondered what it would be like to be eaten alive.

    Now I know.

  • 29. Landon  |  January 26, 2010 at 4:28 am

    Sorry if this has been answered: what happens if Prop 8 loses in this court and they don't appeal? Perhaps they're doing so poorly they don't want to risk the SCOTUS forcing marriage equality on the entire US. Can AFER appeal their own win?

  • 30. Steve  |  January 26, 2010 at 4:29 am

    I'm pretty sure these people are going to assume that God and/or Scalia will win for them in the SCOTUS.

  • 31. Barb - Lesbians Love  |  January 26, 2010 at 4:29 am

    Then the question would be, how many of the 18 million catholics and evangelicals actually voted…period.

  • 32. Andrew  |  January 26, 2010 at 4:29 am

    This is my first posting… :o) I have been reviewing this each and every day at lunch like a hungry gay man looking for his equality.

    It occurred to me that this is all the Prop 8 as well as religious individuals have to support their beliefs. It is really sad that in this day, people expend so much energy, hatred, and money towards something so juvenile as to keep rights away from other American citizens.

    Imagine what we could do with the money wasted? How many people we could feed or shelters we could build to enrich another human's life?

    Seeing the testimony unfold is bittersweet. I guess I am used to promises and letdowns by our judicial system and our politicians. Knowing that this will go all the way to the SC whom are very conservative has be greatly worried.

  • 33. Ryan Blazer  |  January 26, 2010 at 4:29 am

    W: Witness has been cross-examined for about two and half hours. He said an hour ago he was tired. Can we have a ten-minute break?

    Judge Walker: There’s something about pots and kettles when it comes to long cross examinations, but we’ll take a break until 10 minutes after the hour.

    Now that's what I call a judicial bitch slap!!! :)

  • 34. James Sweet  |  January 26, 2010 at 4:29 am

    Mouse: No way.

    First of all, it wouldn't work. Legalizing polygamy is a whole different ball game. The thing about same-sex marriage is that the substance of the laws doesn't change one bit — the tax codes, inheritance laws, medical visitation, etc., it all translates perfectly. But how would that translate to polygamy? This is anything but clear. Legalizing polygamy would require a massive overhaul of numerous state and federal laws and regulations, not to mention hospital policies, employer-provided health insurance practices, etc. This does not pave the way at all.

    Second, there is no need to read between the lines — LD$, Inc. is about as virulently anti-gay as they come. They have a lot of involvement with ex-gay camps, and members are asked on a regular basis whether they are gay from as early as 12 years old. There is no need to invent an ulterior motive to explain it, when the primary motive seems quite enough.

    Third, I highly doubt that there is a significant contingent among the leadership of LD$, Inc. that wants polygamy anymore. There certainly have been in the past, but it seems they have been mostly weeded out by the anti-polygamist majority. Polygamy is bad for business, and business is what the Mormon leadership is all about.

  • 35. Kathleen  |  January 26, 2010 at 4:29 am

    The twitter stream from the other side has been pretty quiet lately. Here's a grasping-at-straws effort:

    @protectmarriage None of this morning's cross ex negates the fact established by #prop8 defense expert that homosexuals are extremely politically powerful.

    Seeing things through a rose-colored blindfold.

  • 36. Andrew  |  January 26, 2010 at 4:29 am

    Oh – I forgot…

    Love,
    Andrew

  • 37. Mike  |  January 26, 2010 at 4:29 am

    My gosh! I could not write a court drama this compelling. Like so many other pivotal cases of it's time, folks start to see the lines of "good" and "evil" redrawn.

    Those that cloak themselves in righteouness being shown for what they are; bullies, cheats and liars.

    This is great stuff, I cannot even begin to express my gratitude for your suffering through writing this.

    Just know that so many of us who have suffered for so long are out here listening and waiting for what you have to type.

    Keep up the awesome work!

  • 38. inMA  |  January 26, 2010 at 4:30 am

    No offense to Stimpy but I feel this is what Miller looks like..you know, since the trial isn't televised or anything, one must use their imagination 😉

  • 39. Polderboy  |  January 26, 2010 at 4:30 am

    I hope Boies is going the address the "it's the sin, not the sinner" hypocrisy. Showing that that line is pure bunk and intended to showboat "the church" position as something reasonable and laudable, while at the same time they use every thrick from Goebbels' propaganda book to portray the "sinners" as predatory animals who prey on children to lure them into depravity and as threats to society in general.

  • 40. inMA  |  January 26, 2010 at 4:31 am

    drats! no image html.

  • 41. Lance Lanier  |  January 26, 2010 at 4:31 am

    I believe we're back to the defense trying to lose this case for politcal gain. Gotta love a good chess game. Lose the battle in hopes of winning the war. Only now, I believe Miller has most definitely hurt their case and proven ours in such a way, SCOTUS will hopefully see the light as well.

  • 42. jayjaylanc  |  January 26, 2010 at 4:31 am

    I think that's why Walker has been so accommodating in admitting evidence. He's trying to broaden the evidence base enough that they can't claim he was biased in what he would and would not admit.

  • 43. Lisa  |  January 26, 2010 at 4:31 am

    I can't see them backing down from that. I mean, in their twisted minds, they have God on their side.

  • 44. Laurie  |  January 26, 2010 at 4:32 am

    I'm a lawyer, but I don't understand the legal significance of whether or not churches were institutionally involved in supporting prop 8 or of the degree to which voters had religious motivations. I don't see the relevance of this to equal protection analysis. Can anyone explain this?

  • 45. Tim In Dallas  |  January 26, 2010 at 4:32 am

    I loved the part about Meagan's Law translating to political power of little girls! POW! ZING! OUTTA THE PARK!!! lol

  • 46. Ronnie  |  January 26, 2010 at 4:32 am

    There is no way it can be a mistrial because they had all the documents and all the chances to enter in testimony from witness but their witness backed out and the ones that are are easily being discredited as well as making statements that win our case.

    What is funny is the even though the witnesses do not go to Scotus from what i take from this all of the testimony does…so they are still us shits creek without a paddle…so to speak

  • 47. JefferyK  |  January 26, 2010 at 4:32 am

    What happens is that LGBT had better arm themselves, because if the religious right can't demonize us in the law, it will attack us directly.

  • 48. James Sweet  |  January 26, 2010 at 4:32 am

    No way they are trying to lose. The reason it seems that way are because:

    1) they know this is a warm-up, so they can experiment now with risky strategies and see how it pans out, and then use what worked in appeals; and

    2) getting good defense witnesses to defend a faith-based position is really really hard.

    At SCOTUS, they may be better off trying to limit the scope of their criticisms. I predict the focus will be on the "discrete and insular" criterion of suspect classification, because that is the front where they have had the most success in this trial.

  • 49. David  |  January 26, 2010 at 4:32 am

    This is from firedoglake.com

    B: turn to page 55 please: second graf, you say: "Churches and religious organizations provided most of Prop 8’s institutional support, with Catholics, Evalgelicals, and Mormons leading the way," This was i 2009 in your French peer reviewed article, yes?
    M: Yes it is

  • 50. Nikki  |  January 26, 2010 at 4:32 am

    They will bring back Kenneth Starr to head the SCOTUS trial…why spend the bucks now, knowing that win or lose this will end up in the SCOTUS. So better to save their $$ and buy the big guns for the ultimate showdown.

  • 51. Tom B.  |  January 26, 2010 at 4:33 am

    Actually, here's the point:

    Let's say Prop 8 is overturned and GLBT is made a suspect class. Since this is in Federal Court, that would become precedent for any future DOMA, DADT, or state law challenges. In other words, if Prop 8 didn't appeal, it loses the entire fight immediately.

  • 52. Rod S  |  January 26, 2010 at 4:33 am

    Problem is, I have no confidence that SCOTUS is going to come at this from a neutral position… I'm wary of a 5-4 decision for the defendants that will set a precedent that will take years to reverse.

  • 53. Sean  |  January 26, 2010 at 4:33 am

    i can't even imagine how horrifyingly terrific it would have if the other 4 witnesses were to testify!

  • 54. Rachel  |  January 26, 2010 at 4:34 am

    "And that was the start of my drinking problem…"

    I may NEED a drink after watching this, I'm sure that everyone in the courtroom wants one as well!

  • 55. scottcelt  |  January 26, 2010 at 4:34 am

    Watching this, if I was the Prop 8 side, I think I might think twice about calling any more experts. Miller is doing extreme damage in cross. If they continue down this track I see a call for mistrial because Prop 8 was not adequately represented.

  • 56. Ryan Blazer  |  January 26, 2010 at 4:36 am

    I don't think "do-over" counts for a mistrial, especially since they're DI and not the original Ds.

  • 57. James Sweet  |  January 26, 2010 at 4:36 am

    There is no limit per se, but if it has exhausted its usefulness the judge can put a stop to it. If you recall, in the defense's cross-examinations, the judge occasionally said, "Please get to the point," with the unstated threat being that he can end the cross-examination if the point is not "gotten to".

    However, I think it is clear that Boies is still making palpable and relevant progress with this witness, so I don't see that happening. Miller is stuck for the time-being.

  • 58. Alan E.  |  January 26, 2010 at 4:36 am

    It is about disproving that gays are politically powerful, but it also points towards the suspect class and hundreds of years of hatred and discrimination.

  • 59. Bill  |  January 26, 2010 at 4:36 am

    I believe they have to appeal. This is no longer just a belief on their part. It is also a financial ( Coalition) Business. So not to repeal would be a going out of business. I belive there financial stability has more value to them at this point.

  • 60. Ben  |  January 26, 2010 at 4:37 am

    I think they would be more brilliant if it were not for their competition. I mean, they're up against one of the most successful Solicitor Generals (the person charged by the government with defending federal laws before the SCOTUS) in history. Certainly the most successful conservative Solicitor General ever. In ADDITION to that, they're up against the guy who beat Microsoft in that famous anti-trust case, and who was Chief Counsel to the Senate Judiciary Committee at only 38 years old.

    Guys, our guys are good. The defense would probably be able to win cases with your average district attorney, but not against these guys. I don't know that a better legal team has been assembled in a civil rights case in a LONG time.

  • 61. Cali  |  January 26, 2010 at 4:37 am

    I think you're right, josh.

  • 62. Scott J Bouza  |  January 26, 2010 at 4:37 am

    It is funny, when you go over to ADFs website, link below, you would think that they are blowing the plaintiffs out of the water. Te consistantly state tat they ave gotten our side to admit this that or the other. I am wondering if these guys are in the right courtroom?! I have been reading tis live blog as well as the actual court transcripts. Thus far this site is on the ball with what the official court transcripts are saying.

    I am feeling sorry for Miller, he is getting smashed. There is no way that the Judge can take this guy as an expert on anything. Being asked questions that fall within his expertise and he doesn't know or hasn't researched. Seriously, an "expert? that does't know what he is suppose to be an expert on.

    The defense is counting on losing, the have said they will lose at this level. They are looking forward to US Supreme Court taking the case. This is why both sides are getting in everything they can. In the Supreme you cannot introduce new evidence, if I understand things correctly. So everyone needs to get everything they can in. However there is no guarantee Supreme will take the case. If they do it may be heard quickly due to the nature of the case, but if they don't then the defense is done.

    I believe that we are doing great right now. It is hard to know, we thought we had Prop 8 defeated, but look what happened. It is unknown until it is completely finished. Mt hopes are high, but am still ready for a defeat again.

    http://www.alliancedefensefund.org/issues/traditi

  • 63. Sean  |  January 26, 2010 at 4:37 am

    Nice name, Sean, but I was here first XP

  • 64. Charles  |  January 26, 2010 at 4:38 am

    Mouse: I don't think so. i'm not an expert on Mormons, but I am under the impression they gave up on that polygamy thing some decades ago now. It's not their official policy anymore I think.

  • 65. Measure  |  January 26, 2010 at 4:38 am

    I believe that the mormon church is acting this way, this desperately, because although they can be seen as homophobic for this, it is much less homophobic than the stance they would have to take if gay marriage was legal.

    You see, right now, mormons can indirectly discriminate against gays, saying they are unworthy to hold church callings because they are participating in sexual relations outside of marriage.

    Technically, you gan be a gay mormon in good standing, but only if you don't have gay sexual relations.

    If gay marriage became legal, the church could no longer easily discriminate because the gays could say 'we are legally married'.

    The church would then be forced to overturn it's anti-gay doctrine entirely, which it wants to avoid, or become even more homophobic and introduce new policies to specifically target married gays, which it wants to avoid.

  • 66. Roger  |  January 26, 2010 at 4:38 am

    I can't wait to see the movie for this! Thank you Rick and all for your hard work to bring this to us! What a GREAT morning this has been for equality!!! THANK YOU!!!!!

  • 67. Russell V  |  January 26, 2010 at 4:39 am

    I have thought the same thing. If this is the caliber of their lawyers and witnesses, logic would dictate they cut their loses and secede CA. However, the same battle will inevitably play out in other states, and sooner or later, SCOTUS will have to make the final call. Whether the press it here and now, or elsewhere and later, is the only issue. And the other point is I have learned in my studies that people of firm dogmatic religious views often do not act logically.

  • 68. James Sweet  |  January 26, 2010 at 4:40 am

    Still, this is exactly what I predicted the defense will go for on redirect. It is the best strategy left for salvaging this witness. Remind that the factual portions of Miller's direct testimony were accurate, and assert that this still means LGBT have power.

  • 69. Sean  |  January 26, 2010 at 4:41 am

    Four others? I thought they only had like 2 witnesses left…but I could be wrong.

  • 70. Kevin_BGFH  |  January 26, 2010 at 4:41 am

    Unless one of the four conservative justices dies before the appeal needs to be filed, I'm certain they will appeal. Even though Kennedy is a genuine swing vote on this, and I personally am not sure how he will rule, I believe that the defense believes he will support them.

  • 71. Jason  |  January 26, 2010 at 4:41 am

    Thanks to Rick and all for doing this. They deserve more praise than they will ever get … and a Hawaiian vacation when it's all over. Thanks again.

  • 72. Sean  |  January 26, 2010 at 4:41 am

    …also, one of us should probably change names, huh?

  • 73. Nat G.  |  January 26, 2010 at 4:42 am

    Sure there's a strategy to losing. After all, this is not the final round, it goes to higher court after this, at least everyone assumes so. So what's the best situation for getting bigger contributions for the fund – winning, and making it look like you have matters well in hand, or losing, and making it look like you really need those funds or the gays will be marrying everyone's sons, the heterosexuality fad will pass and mankind will come to an end?

  • 74. James Sweet  |  January 26, 2010 at 4:42 am

    Right, Alan E. has it right. It 1) shows widespread institutional discrimination against LGBT, helping to show that LGBT is a suspect classification; and 2) it also attacks the "rational basis" test (which is the test that will be applied if LGBT is not ruled a suspect classification) by showing that the motivation for Prop 8 is religious interest rather than the interest of the state.

    (The court can still invent a state interest, though)

  • 75. truthspew  |  January 26, 2010 at 4:42 am

    I don't generally loathe lawyers, reason being I've done some work for them and they pay promptly and they pay well.

    That said, Olson & Boies really have a stellar legal team. They've brought the A Team to the game and the Prop 8 folks brought the Z Team.

  • 76. David Crane  |  January 26, 2010 at 4:42 am

    I went to the courtroom yesterday to watch Boies in action. It was one of the most beautiful things I have ever seen. I think everyone in that courtroom, including the defense lawyers, were mesmerized by the spectacle. *He got their expert witness to testify that DOMA was discriminatory.* And that was not even what impressed me the most.

  • 77. DonG  |  January 26, 2010 at 4:44 am

    Laurie, under Romer v. Evans, if you can show that a constitutional amendment was passed with animus toward the class of gays, then the amendment is unconstitutional. There was testimony that the churches thinks gays are an abomination, are going to hell, that gays are child molesters, that Prop 8 denial will lead to polygamy, etc. If churches were a major factor in passing Prop 8, that leads to a showing of bias.

    That's my guess.

  • 78. Chris Boltz  |  January 26, 2010 at 4:44 am

    My biggest fear is that they are loosing this case deliberately. They also guaranteed that it wasn't broadcast. Most people aren't following the case. When they loose, they will scream "Judicial Activism" and raise the money for a federal constitutional amendment to declare the LGBT (etc.) population as permanent second class citizens. I hope that America won't fall for it, but I'm starting to think that is the strategy.
    Chris

  • 79. Phil  |  January 26, 2010 at 4:44 am

    I'm a little confused… the rep for the AG starts asking questions, and then we have an exchange between J, M, and T.

    i'm assuming J is judge (although it seems odd for him to be asking such questions), and M is miller. who's T? that's usually thompson, but he shouldn't be asking questions now, unless the cross is over, right?

  • 80. Ben  |  January 26, 2010 at 4:44 am

    Actually, I think it wouldn't have immediate effect throughout the US. I THINK (and people with more knowledge of federal procedure than me please chime in) that a decision at the district level is not binding precedent throughout the country. I think it would only apply in the 9th district, so we poor souls in Atlanta wouldn't benefit.

    Again, could be wrong.

  • 81. Pearl  |  January 26, 2010 at 4:45 am

    not sure but do overs are for for criminal trials not civil

  • 82. erasure25  |  January 26, 2010 at 4:45 am

    Someone can correct me, but this is the Ninth Circuit so if Prop 8 were to be deemed unconstitutional now, it would only be binding for the Ninth Circuit region (basically in the US West), correct?

  • 83. pgbach  |  January 26, 2010 at 4:45 am

    If the Prop8 defense loses and chooses not to appeal to the 9th CCA (unlikely IMHO), the case will have limited precendential application (i.e., limited to CA). However, as a matter of legal strategy, it is likely the defense will appeal. It is, also, likely they will lose at the CCA level. Appealing to SCOTUS is more iffy. A denial of cert (the likely result) would be viewed as a defeat in the eyes of the Prop8 supporters even tho' it isn't in a purely legal sense. Note: there is at best 4 Prop8 votes on the current SCOTUS. Scalia cannot be counted a sure Prop8 vote.

  • 84. Phil  |  January 26, 2010 at 4:46 am

    OK, J has been changed to Judge Walker and T is now specified as Thompson. is the cross over?

  • 85. Rachel  |  January 26, 2010 at 4:46 am

    "B: As political scientist, do you believe that a religious majority should not be allowed to impose its views on a minority?

    Thompson: Objection.

    Judge Walker: Overruled."

    YAY!!!!!!!!!!!!

  • 86. Pearl  |  January 26, 2010 at 4:46 am

    do over -by that I mean if they want to say they didn't get a fair trial becuz of incompetent lawyers. No question this will be appealed no matter what outfcome. Goal is to get it to SCOTUS

  • 87. James Sweet  |  January 26, 2010 at 4:46 am

    B: As you sit here now, can you think of a time when a religious majority used its power to impose its view and that was good?
    M: Abolitionists.

    FAIL. While there were many religiously-motivated abolitionists, particularly from the Quaker community, there were just as many, if not more, secular abolitionists. And there were lots of religious groups that supported slavery, pointing to the Old Testament for justification (sound familiar?).

    This idea that religion brought about an end to slavery is a myth, plain and simple.

  • 88. Barb - Lesbians Love  |  January 26, 2010 at 4:47 am

    I think because Miller is sidestepping, the Judge can demand that he answer and not keep sidestepping the questions.

    I do want to know who Ms. Patcher of AG is.

  • 89. Ben  |  January 26, 2010 at 4:47 am

    Actually, he "proved" that lgbt are powerful by pointing to the officials who came out against prop 8 and the measures that have been passed, specifically the hate crimes bill.

    I think that "logic" was disproved with the question "did the passage of Megan's Law prove the political power of little girls?"

  • 90. James Sweet  |  January 26, 2010 at 4:47 am

    I guarantee you they are not losing on purpose, but for the reasons you state (and more) they don't care that much if they lose this case.

    Losing at SCOTUS would be disaster for them though…

  • 91. Kim  |  January 26, 2010 at 4:47 am

    But this blurs the distinction between civil and religious marriage. The Mormons would not have to perform any gay marriages, temple or not, and could simply refuse to recognize the civil kind as religiously valid. I'm sure that's what they did during the 6 months they were legal in CA, and what they do in Canada and Mass, etc.

  • 92. Ben  |  January 26, 2010 at 4:48 am

    There's a pic of him on his faculty page at Claremont McKenna: http://www.claremontmckenna.edu/academic/faculty/

  • 93. Reagan  |  January 26, 2010 at 4:48 am

    It's highly important in the final analysis. If we are a suspect class the only laws that can be passed that directly affects us have to serve a compelling governmental interest. That the law only serves a religious bias not only isn't a compelling reason, I think doesn't serve a rational reason either.

  • 94. Kevin_BGFH  |  January 26, 2010 at 4:48 am

    I believe it was four originally. Two withdrew claiming fears of harassment because of the cameras, even though it was after the SCOTUS ruled against cameras and their names and depositions were already part of the public record. Plaintiffs argue that they really withdrew because their own research contradicted their depositions. The third was Dr. Tam, whom the plaintiffs then called as a hostile witness. I believe the fourth was Frank Shubert, whom the defense tried to get back in at the last minute without giving the plaintiffs a proper opportunity to depose.

  • 95. Charles  |  January 26, 2010 at 4:49 am

    That would be if the Defense was actually worth anything. As it is not the case, that probably won't happen.

  • 96. Patrick Regan  |  January 26, 2010 at 4:49 am

    I was thinking the exact same thing.

    Love,
    Pat

  • 97. Nikki  |  January 26, 2010 at 4:49 am

    Kenneth Miller, faculty profile, including photograph:
    http://www.claremontmckenna.edu/academic/faculty/

  • 98. Caleb  |  January 26, 2010 at 4:49 am

    Ahhhh! (watching the trial tweets)

    On redirect, Thompson is getting Miller to talk about the "evolution" of his views regarding ballot initiatives.

    Now he's saying they're a check against judicial activism.

    I kinda think that says a lot about why they picked this particular "expert".

    So, between 2009 and today, he's made a complete 180 on his views regarding ballot initiatives?

    Prop8 legal team is trying to pull a rabbit out of a hat — and failing miserably.

  • 99. Ray Harwick  |  January 26, 2010 at 4:50 am

    Lance, well hold hope in our hearts for such an outcome but I think SCOTUS is a whole different animal. When they looked a Lawrence v. Texas, Scalia was on the verge of a coronary, Thomas did his normal thing and just sat there and asked NO question and Reinquist nearly had a nervous breakdown. Those three will not overturn Prop 8 under any circumstances. If every homosexual in California had been murdered as a result of Prop 8, those three would say,

    "Oh, that happened AFTER the initiative passed so it's not relevant to Plaintiff's claimed animus."

    They are sadists!!!!

  • 100. Al  |  January 26, 2010 at 4:50 am

    Laurie,

    Maybe it's a part of the puzzle and not the whole. If you have 18 million people that were brought out to oppress a minority, would that indicate that there was no political power?

  • 101. Nicole A  |  January 26, 2010 at 4:51 am

    T: Did you review all 427 documents in appendix?
    M: I tried to.

    The defense should ask this guy for there money back.

    And how do you even get a gig like this? All pay and little work. Sign me up!

  • 102. Alan E.  |  January 26, 2010 at 4:51 am

    Plays right along with the "As an expert" questions.

  • 103. homogenius  |  January 26, 2010 at 4:51 am

    Rod S.–

    This has been my concern, too. But Olsen seems to be confident and he knows the conservative side of the court extremely well and any conservative counsel the Pro-8 side can bring in (including Starr). I hope I'm not reading that wrong.

  • 104. James Sweet  |  January 26, 2010 at 4:51 am

    M: Different in different in states?
    Judge Walker: We’re talking about California.

    OMG, I can't believe Miller is still trying this "different in different states" crap. Does he think that maybe the 20th time it will magically work?

  • 105. Ronnie  |  January 26, 2010 at 4:52 am

    Holy Goonies on a treasure hunt……WTF just happened…..108 ?'s…….23%?……. PURGER!!!!!!!!!!!!

    Hostile Witness….move to strike(by the defense)

  • 106. Sean  |  January 26, 2010 at 4:53 am

    they originally had 6 witnesses, but 4 dropped out "for fear of cameras"
    and we have the best name:) no need to change

  • 107. hearsay  |  January 26, 2010 at 4:53 am

    23%, huh? I guessed 10% yesterday. He knows less than a quarter of what he should know. But he's an "expert". (sniff, sniff) What's that I smell? Perjury charge?

  • 108. Ruth  |  January 26, 2010 at 4:54 am

    I'm pretty sure he meant "outside CA". Remember, he's having to type awfully fast.

  • 109. Larry Little  |  January 26, 2010 at 4:54 am

    When religion becomes a political force then ideology will trump legislatures and equal rights will vanish because political seats will have been purchased by tax free dollars.
    It is impossible for me to believe that any court in America will tolerate the blatant discrimination and hate filled goal of Proposition 8, yet the Mormon Church, the Catholic Church and all the Evangelical/Southern Baptist rednecks conspired among themselves to target the gay community to deprive them of equal rights and Clarence Thomas predictably will support them. The gay community has been harassed and discriminated against by religions for three hundred years and we all know it. To give these institutions the right to legislate their discrimination based upon their religious dogma is equivalent to hiring a starving wolf to guard the hen house to protect chickens. We see in Islamic countries where religion rules everything that amputation of offending limbs, execution for same sex behavior, and piety so indoctrinated that young suicide bombers gladly give up their lives for Allah. Christianity hasn’t advanced that far in western societies, but give them a chance to get their feet in the door (like Proposition 8 in California) and they will use similar methods in other states like Massachusetts, Colorado, Vermont to legislate discrimination and hatred using lies and fear mongering. The Christian anti-abortionists using similar methods are starting to murder doctors and bomb clinics because they can’t get their way. We need freedom from religion and if any church body tries to impose inequality using methods such as initiatives, they must have their tax free status revoked and appropriate punitive penalties. Right??

  • 110. hearsay  |  January 26, 2010 at 4:54 am

    Beat me by a minute…

  • 111. James Sweet  |  January 26, 2010 at 4:54 am

    Barb:
    http://www.linkedin.com/pub/tamar-pachter/11/38a/

    Pachter is a deputy attorney general for California. Apparently she is present representing the attorney general's office. I'm a little unclear on why the judge is able to ask her questions directly (it seems like the nature of these questions would require her to be called as a witness? IANAL, and I am also confused by the [unavoidable] terseness of Rick's excellent transcription)

  • 112. Caleb  |  January 26, 2010 at 4:55 am

    If Miller actually thinks ballot initiatives are a check against judicial activism… that's a new level of crazy coming from the defense's side. A 9th grade civics student could rip that premise to shreds.

  • 113. Lymis  |  January 26, 2010 at 4:55 am

    I suspect it is a paraphrase, and what was actually said (or meant) was that they came from THE outside US (as in the sense of "the rest of the US outside CA) rather than from outside the US (as in Canada, etc.)

  • 114. Alan E.  |  January 26, 2010 at 4:56 am

    Greta Christina posted this today:

    "What do you care what other people believe?" is not a good argument against atheist activism. What people believe affects what they do — in ways that affect other people. Mistaken beliefs lead to poor decisions… decisions that don't just affect the person making them.

  • 115. Phil  |  January 26, 2010 at 4:56 am

    ah, i see over on firedoglake that we have indeed moved into redirect.

    ignore my posts :-)

  • 116. homogenius  |  January 26, 2010 at 4:56 am

    The problem is the anti-gay industry. Hating homos is a cash cow for all these religious and political groups. For some of the cottage-industry-sized orgs like Traditional Values Coalition/Sheldon-Lafferty and the old Oregon/Lon Mabon group it employs their whole damn family.

    So they stir up the hatred to keep the money coming in. They don't want a Federal Marriage Amendment or a Federal Anti-choice Amendment–that would be the worst possible thing that could happen to them.

  • 117. Alan E.  |  January 26, 2010 at 4:57 am

    atheism aside, I believe it reinforces the argument that Boies was using this morning.

  • 118. James Sweet  |  January 26, 2010 at 4:57 am

    Wait, why is Thompson questioning now? Are we on redirect already??

  • 119. James Sweet  |  January 26, 2010 at 4:58 am

    Greta Christina rules. I always enjoy her stuff.

  • 120. Caleb  |  January 26, 2010 at 5:00 am

    This is just amazing. Even on redirect, their own witness is saying things that aren't going to win them any points with Walker — and might actually piss him off.

  • 121. Lymis  |  January 26, 2010 at 5:00 am

    Yes indeed. It is considered a HUGE success these days if you can get half the voters to the polls in any given election. Remember how amazed and thrilled everyone was with the participation this time (re: Obama) and that more people had voted than in any past presidential election?

    That won't stop them from trying to fudge the math – factoids and truth only have a passing acquaintance with the Prop 8 and NOM kinds of folks these days.

  • 122. David  |  January 26, 2010 at 5:01 am

    I am confused too, anybody is this redirect?

  • 123. Mairin  |  January 26, 2010 at 5:01 am

    I was literally holding my breath as I read that exchange…

  • 124. Rod S  |  January 26, 2010 at 5:02 am

    Actually, go back about 400-900 years and Christianity used those very tactics.

  • 125. Sean  |  January 26, 2010 at 5:02 am

    I copied this post from another website covering the trial…
    (out in the hall, during the break)

    D-I: OK, Dr. Miller, you’re doing great.
    M: What? Are you nuts? He’s making me look nuts in there.

    D-I: No, you’re doing fine. Just hang in there.
    M: How much longer do I have to deal with this? I can’t take much more.

    D-I: Only a little while longer. Then we get our turn.
    M: WHAT?!? More after him?

    D-I: We’ll be gentle, I promise.
    M: Yeah, right. You try sitting in that box for a couple of hours and letting that monster question you.

  • 126. george  |  January 26, 2010 at 5:02 am

    Yup. This witness is just a tool for bringing facts of LGBT political power into the record.

    Frankly, if the issue is a lack of political power, the power and near bullying by David Boies on this cross is not doing much to make the LGBT look very weak, ha, ha.

  • 127. Tom B.  |  January 26, 2010 at 5:03 am

    When they loose, they will scream “Judicial Activism” and raise the money for a federal constitutional amendment to declare the LGBT (etc.) population as permanent second class citizens.

    As stated in another post, they know that's actually the WORST thing they can do. Most of these groups' only source of money is anti-gay rhetoric, so if a Federal Marriage Amendmet goes through, the cash cow goes dry.

  • 128. Alyssa Ri  |  January 26, 2010 at 5:03 am

    Hey, I'm a big supporter for the gay marriage movement, okay, so far, we're looking REALLY GOOD! I'm very happy!

    i'm only 17, and so therefore i'm kinda confused about how this whole trial thing works…and I heard someone say this isn't the final round?? I thought this case was it… after this whole San Fran trial is over, doesn't the judge decide whether to overturn Prop.8 ?

  • 129. Lymis  |  January 26, 2010 at 5:04 am

    It wouldn't go into effect immediately outside the 9th circuit if it wasn't appealed, but the first time another circuit court based their decision on the idea that LGBT are NOT a suspect class, there would be a federal mismatch, and on appeal of THAT case, the losers could demand the SCOTUS make a definition.

    Mismatches of that kind hung around in the past, but they tend to have a short shelf life.

    And remember, Massachusetts has sued the US on marriage equality. Guarantee they will use any decision by the 9th that we are a suspect class as a centerpiece of their argument.

  • 130. Carl E.  |  January 26, 2010 at 5:04 am

    More like:

    D-I: No, really! You're doing great! Just read Pugno's blog posts tonight!

  • 131. James Sweet  |  January 26, 2010 at 5:05 am

    It will be appealed to the 9th Circuit court of appeals, then it will be appealed again to the US Supreme Court. Most likely, if this court (District Court of Northern California) or the 9th Circuit rules in favor of the plaintiffs (the good guys), then a stay will be issued pending appeal, meaning the law won't change until the Supreme Court makes a ruling.

  • 132. Ronnie  |  January 26, 2010 at 5:07 am

    No there is like 1 or 2 more steps but In a sense it's on the verge to being over

  • 133. jayjaylanc  |  January 26, 2010 at 5:07 am

    Rehnquist is NOT going to be hearing this case…

  • 134. Charles  |  January 26, 2010 at 5:07 am

    You're joking, right?

    *gullible*

  • 135. Ronnie  |  January 26, 2010 at 5:08 am

    Is that true……IDC!!!!!……its still funny….

    "What? are you nuts?…… said the cashew!

  • 136. James Sweet  |  January 26, 2010 at 5:08 am

    It's gotta be… I'm unclear on when it switched, though, because of the questions from the Deputy Attorney General. I guess she must be for the defense (since the state is being sued), but her questions didn't make sense to me for the defense.

    Thompson's questions make sense for redirect though. Exactly what I predicted — reassert the factual accuracy of Miller's initial testimony, and hope to hell the judge finds that on balance that shows that LGBT has power.

  • 137. Andrew  |  January 26, 2010 at 5:10 am

    Hmmm…. kind of a cute little bigot.

    Maybe we should cash in as well and make cute Beegot(tm) dolls with pull strings on their back that say very discriminatory things. Things like: "Haiti made a pact with the devil!" ™

    Male and female versions.

  • 138. Richard Cortijo  |  January 26, 2010 at 5:10 am

    I just figured out what SCOTUS was LOL LOL (i totally thoguht ti was some sort of religious organizatoin or something at first). Anyways..I agreee…I do not think that they care if they lose right now…they are saving their real amo (if they have any) for the Supremes…and by losing they become somewhat of a martyr (speling) and boost the funding and attention from the nationwide (possibly worldwide) church and religious/conservative organizations..it will no doubt get ugly before it ends, expect even more discrimination folks…i would assume we will win this round no doubt…but the Supremes will but it on hold pending appeal and we will have a few more years of fighting for our rights ahead…i hope they fast track it.

  • 139. Patrick Regan  |  January 26, 2010 at 5:11 am

    Please tell me this is a joke. Because if it isn't, it's just too good.

    Love,
    Pat

  • 140. Lymis  |  January 26, 2010 at 5:11 am

    Rehnquist isn't on the Court any more, and Scalia is on formal record in his Lawrence dissent as saying that the Lawrence decision eliminates any justification for banning same-sex marriage.

    Pretty clear Rehnquist's opinion doesn't matter much now.

    Scalia isn't a given. It's clear he hates the idea, but he may hold to his principles of precedent enough to be a wild card on this. If so, he'll issue a scathing "I told you so" concurrence.

  • 141. Ronnie  |  January 26, 2010 at 5:11 am

    "Drums keep pounding a rhythm to the brain….. da da da da…dee!"

  • 142. Adrenalin Tim  |  January 26, 2010 at 5:12 am

    From FDL:

    M: well the slaveholders may have had religious basis for their views and therefore it was inappropriate to impose others’ relgiious values on them.
    THOMPSON: OBJECTION, outside scope of direct
    WALKER: Well, if he would answer the question directly that he is asked, Mr Boies might not have to go so far afield in his questions trying to understnad his views on Prop 8. OVERRULED, Mr THompson.

    B: Is it right for a religious majority in America today to impose its views on a minority, in the USA or in CA?
    M: I think the principle –
    B: Yes, No, I don’t know?
    M: Well I think whats you are getting at, is it correct for a majority to impose its views…

    B: I have no further questions

    Walker; Questions from AG office, redirect?
    (…)

  • 143. Leslie in Concord  |  January 26, 2010 at 5:14 am

    I'm curious about that comment about Scalia — you're the only person I've seen with that opinion. More info?

  • 144. Lymis  |  January 26, 2010 at 5:14 am

    No, there were originally six. It's been like an Agatha Christie novel, with them disappearing one after the other. Unfortunately for the Prop 8 side, their original depositions are still allowable as evidence, so they ended up effectively being witnesses for the plaintiffs. Oops.

  • 145. DonG  |  January 26, 2010 at 5:14 am

    James, here is some food for thought. The Cal. Supreme Court upheld the existing gay marriages when they upheld Prop 8. Since the plaintiffs here (us) filed a complaint for injunctive and declaratory relief, what would prevent Judge Walker from granting the temporary injunction? After all, at the hearing on the motion for a temporary restraining order, he postponed his decision, pending the outcome of the trial.

  • 146. James Sweet  |  January 26, 2010 at 5:14 am

    Thanks. That was my best guess, but it was hard to tell.

  • 147. jayjaylanc  |  January 26, 2010 at 5:14 am

    They will appeal to the 9th District Court of Appeals (whichever side loses this one), then whoever loses that will appeal to the SCOTUS for cert. Those will probably be much shorter trials, though, as they don't admit new evidence on appeal. They review the court record and the evidence admitted in this trial and review whether or not the case was decided correctly according to the law. And there's no guarantee that SCOTUS will grant cert in the first place, although it probably depends on who won the appeal and whether Kennedy has more weight in the left or right pocket of his robe that day.

  • 148. Al  |  January 26, 2010 at 5:14 am

    This is like watching Jeff Dunham's Peanut go absolutely hysterical in laughing. If Miller's married, I would suggest he rent somewhere else for a while.

  • 149. Alan E.  |  January 26, 2010 at 5:14 am

    Alyssa, This would be a great question for a Civics or US History teacher in your school. See if you can pull him or her aside and have a conversation. Your teacher will probably appreciate it just as much as you.

  • 150. Joe  |  January 26, 2010 at 5:14 am

    You're correct, Kim. Give to Ceasar what is Ceasar's, give to God what is God's. Unfortunately the Mormons can't separate the two either.

  • 151. Kim  |  January 26, 2010 at 5:15 am

    We NEED a Law and Order episode based on this case!! Does anybody know the producers/writers? It practically writes itself.

  • 152. James Sweet  |  January 26, 2010 at 5:15 am

    I think it is the 9th Circuit that would grant the stay, but IANAL.

    From what I have read, there is a very tiny chance that there will be another "window" when same-sex marriages are allowed, in between appeals, but this is extremely unlikely.

  • 153. James Sweet  |  January 26, 2010 at 5:16 am

    My guess is that SCOTUS would grant certiorari either way. I'm sure Scalia would just lo love to set a precedent on this…

  • 154. James Sweet  |  January 26, 2010 at 5:20 am

    george, go away, I am so sick of your idiocy.

  • 155. Lymis  |  January 26, 2010 at 5:20 am

    Remember that with Lawrence v. Texas, the last big gay rights trial, this level of trial happened around 1998 or 1999, and the Supreme Court didn't issue a decision until 2003 or so.

    This is important, and yes this chunk is coming close to over, but unless something really strange happens, this won't be resolved for years.

  • 156. Barb - Lesbians Love  |  January 26, 2010 at 5:20 am

    T: Did you review all 427 documents in appendix?

    M: I tried to.

    Thompson (T): Please relay methodology of understanding progressive religious involvement in Prop. 8?

    M: Did extensive reading. Pew website provides important information.

    In other words, he tried to become an expert witness.

  • 157. Urbain  |  January 26, 2010 at 5:21 am

    This testimony really deserves to be aired publicly. This is so important to the very essence of America — that the religious majority does not impose its views on the minority. This is HUGE.

    In a society where the far right is attempting to rewrite history to show that the United States is "a Christian nation," I think today's testimony and cross-examination must be aired over and over again on the media.

    While I am against proposition 8, I think that issues like those talked about today are much bigger than just gay issues.

  • 158. Chana  |  January 26, 2010 at 5:21 am

    Lawyers?? How does the Supreme Court decide to take a case? Does the fact that they took the ludicrous don't broadcast Prop 8. case tell us anything? (I'm asking because I don't know how this works).

    Also, granted that they may not care whether they lose at this level. Doesn't it behoove them to make a better showing, at least? Shouldn't they want to make it as easy as possible for "their" SC justices to choose in their favor? It's struck me (in addition to how expert our experts were) how well prepared they must have been by counsel, because they seemed to know a lot about what kinds of questions would be asked (not that they wouldn't have known the answers, but these questions are a far cry from what you'd get at a history conference, presumably where they usually present). It seems like the Prop 8 folks made some pathetic stab at getting Miller to read certain things, but if they had prepared him for the kinds of questions likely, wouldn't all this have been a little less embarressing? What's the strategy behind not doing that?

  • 159. Tom B.  |  January 26, 2010 at 5:22 am

    I believe the judge is asking Dr. Miller the questions, but I could be wrong.

  • 160. Joe  |  January 26, 2010 at 5:23 am

    Seriously? I thought they were joking about him going to Harvard!

  • 161. James  |  January 26, 2010 at 5:23 am

    Or he may have meant all over the US.

    He's doing a really good job at getting and blogging the info and some people talk really fast.

  • 162. Ronnie  |  January 26, 2010 at 5:24 am

    "and the beat goes on!"

    He lied…..that's a no no…..DUNCE CAP! ….anybody?

  • 163. Joe  |  January 26, 2010 at 5:26 am

    Yeah the had no problem going on cameras before Prop 8 passed though.

  • 164. Roy  |  January 26, 2010 at 5:27 am

    here's your T-shirt Mr. Miller

  • 165. Kohai  |  January 26, 2010 at 5:29 am

    I don't think SCOTUS will take this case, it solves major political problems nationwide, DOMA, DADT, 30 states with Marriage amendments and such.

    Along with the obvious fact that there really not any difference in the mind of the secular between heterosexual marriage and other types of marriage, the system will change in a direction that significantly reduces litigation nationwide.

    It is true that the potential exists that polygamy will gain support, but what reason is polygamy illegal? the same reason ss marriage is restricted, morality.

    The religious institutions of this country have no right to the secular decision-making process, yet they keep at, the only weapons they have are rhetoric and religious propaganda. They win many battles by fiat, literally they say "Fried toads are immoral!" and before you know it you can no longer find fried toad on the menu.

    And it always takes a court case to get reality put back on the menu.

  • 166. Joe  |  January 26, 2010 at 5:29 am

    Yeah but their own witness said that the whole point of the judicial system was to keep the majority in check, so by their own admission (under oath), it's just the justice system doing it's own job, no? :-)

  • 167. inMA  |  January 26, 2010 at 5:30 am

    Wow. Miller took off his top hat to answer stock answers for the defense!

    I bet they thought if Miller answered any of Boies questions directly, there would be more ass-whooping than there would be if Miller just said "I don't know" a hundred times.

    Perhaps the Religious Right should re-read the part of the bible where it says "You reap what you sew."

  • 168. Jake G  |  January 26, 2010 at 5:30 am

    Just a little side note from a young man raised mormon and still living in Salt lake city utah. The Mormons still feel that polygamy is gods law and that while they cant/dont practice it on earth it still exists in the heavens. Out of context it sounds really crazy but if you did an in depth study of the doctrine it falls right in line to believe that polygamy is practiced in the 'eternities'(the after life).

  • 169. Caleb  |  January 26, 2010 at 5:30 am

    I'm totally blown away by the majority of documents that Miller "studied" were provided by the defense's counsel.

    I think there are some yet-to-be-seen fireworks to come out of this revelation. It's very good (for Miller's own neck) that he admitted to this… rather than perjure himself.

    Not so good for the D-I's necks.

    For you legal-eagles out there: witness tampering? Sua sponte?

  • 170. Eddie  |  January 26, 2010 at 5:30 am

    "Defendants rest." Does that mean they are not calling more witnesses?? I'm confused.

  • 171. DonG  |  January 26, 2010 at 5:31 am

    When the trial is over, the losing side can appeal to the 9th Circuit Court of Appeals. When the 9th Circuit issues their opinion (and the 9th Circuit is the most liberal of all the Circuits), then the losing side can petition for certiorari in the US Supreme Court. The judges read the petition and take a vote. If 4 of the 9 decide to take the case, then the parties submit legal briefs and the case is scheduled for oral argument.

  • 172. elmo  |  January 26, 2010 at 5:32 am

    AG: One of things that people can do is go to court to challenge AG’s title and summary

    Judge Walker: Can AG do more than provide a neutral title and summary for the initiative?

    M: Different in different in states?

    Judge Walker: We’re talking about California. The question is can the AG do more?

    M: AG can take public position.

    Judge Walker: That’s not my question. You don’t know? Is that your answer?

    Oh.
    Dear.
    God.

    If a judge ever stepped in and bitchslapped one of my expert witnesses like that, I would — I mean — I would just —

    Really. There are no words.

    Well, one of the things I would do is to head straight to my laptop and pull up Monster.com, because if I had done such a crap job of preparing the witness in the first place, I'd sure as heck be looking for another job.

  • 173. Joe  |  January 26, 2010 at 5:32 am

    Not to mention the state trial judge in Loving v. Virginia quoted the bible in his reasoning to maintain the ban on interracial marriage, and I quote: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

  • 174. Andrew  |  January 26, 2010 at 5:32 am

    Not only is polygamy not their policy, but it has been the church's policy for some time now to excommunicate members who practice it. The feds wouldn't let Utah be admitted to the union until the prophet had that revelation.

    Of course, that's the mainstream LDS church. The much smaller funamentalist LDS offshoot does still practice polygamy. They're small enough that they don't matter to Prop 8 though, even if they did support it.

  • 175. Eddie  |  January 26, 2010 at 5:33 am

    Nice! And a towel, maybe.

  • 176. Laurie  |  January 26, 2010 at 5:34 am

    Yes, this makes sense. Thanks!

  • 177. jayjaylanc  |  January 26, 2010 at 5:34 am

    Rob Reiner is heavily financing the plaintiffs on this, and you can bet he's been feverishly gathering as many transcripts as he can in preparation for a screenplay treatment.

    This may be our generation's "Inherit The Wind".

  • 178. Alyssa Ri  |  January 26, 2010 at 5:34 am

    oooo okay. Wow… so there's basically there's going to be 2 trials in total for this… one right now and another trial again for the Supreme Court, right?

  • 179. DonG  |  January 26, 2010 at 5:35 am

    The defendants have 1 more witness (perhaps 2, depending on what documents are submitted, but most likely just 1). Then the defendants will rest.

  • 180. James Sweet  |  January 26, 2010 at 5:35 am

    So I think Miller didn't do too bad on redirect. Thompson allowed him to explain why his views on ballot initiatives changed since 2001, which goes a little ways to restoring Miller's credibility. And he was able to reiterate the factual aspects of his initial argument, which are fairly compelling if taken in a vacuum. (Of course, the judge will put those arguments in the full context, where they don't fare quite so well…)

    I did find it interesting that the judge had a number of follow-up questions. It sounds like Walker was very frustrated by this witness..!

  • 181. jayjaylanc  |  January 26, 2010 at 5:35 am

    Hopefully without the "losing the trial" aspect, though.

  • 182. Eddie  |  January 26, 2010 at 5:35 am

    Thanks, DonG.

  • 183. James Sweet  |  January 26, 2010 at 5:35 am

    I think Rick may have mistyped. That confused me as well.

  • 184. Prup (aka Jim Benton  |  January 26, 2010 at 5:35 am

    James, responding to this and several other comments you and others have made, a trial in SCOTUS is strictly on the briefs presented, and (usually) one hour per side of oral argument. No witnesses are called, no testimony is heard. The only thing, other than the original trial record and the attorney's briefs and oral argument that is used are any amicus briefs allowed by the Court.

    On the other hand, there is considerable question as to the composition of the Court, or what it will be once the case is heard. Stevens, who is 90, has said he will probably be retiring after this term, and while Ginsberg has fought a great fight against her cancer, it is, eventually, a fight she can't win. I would expect Republicans to filibuster any Obama appointment, which could mean a 7 person court which could divide 4-3. There is some question whether this could allow a rehearing once the vacancies were filled.

  • 185. Ginger  |  January 26, 2010 at 5:36 am

    What is AG!??

  • 186. inMA  |  January 26, 2010 at 5:36 am

    By the way, we should all keep an eye on the Marriage Protection Act.

    Essentially, it reinforces that marriage is only to be 1w/1m but it also forbids any federal judge from hearing our greviences…which is completely against the Constitution (as is denying us marriage rights) but the neo-cons apparently do not care about the Constitution…unless it's to protect their hate speech & gun usage.

    The MPA is introduced year after year – they're not giving up. Read about it here

  • 187. James Sweet  |  January 26, 2010 at 5:37 am

    No, three. One right now, one at the Circuit Court, and one at the Supreme Court.

  • 188. Desert Verdin 1 of 1  |  January 26, 2010 at 5:37 am

    Yo Georgie-Porgie.

    Why should a woman buy the pig when she can get the sausage for free?

    Amiright??

  • 189. rf  |  January 26, 2010 at 5:37 am

    attorney general

  • 190. Marci Walley  |  January 26, 2010 at 5:37 am

    I was thinking the exact same thing, James. I believe it is this very thing that will sink us in SCOTUS. You only need to leave the conservative supreme court judges a sliver of opportunity to uphold prop 8, thus putting us back about 20 -30 years.

    Just look at the justification for not allowing video in the court. I am afraid we are doomed. I hope I'm wrong, but I see the writing on the wall.

    Someone, please convince me I'm wrong!

  • 191. pgbach  |  January 26, 2010 at 5:38 am

    It is important to remember that a case on appeal is heard de novo. Rather, an appellate case is limited to the the law applied to the case "from below." It is at trial that you have your best odds of prevailing. In addition, appellate courts choose to take an appeal unless otherwise setforth in statutory law. If an appellate court chooses to take a case, it is with the presumption that the case was correctly decided below and hence, the burden is on the appellant to show otherwise (a very high hurdle). SCOTUS grants cert in very few cases. The Prop8 case offers SCOTUS little reason to get involved such as conflicting case law between 2 or more CCAs. Contrary to popular belief, SCOTUS loves to avoid getting involved. So, what does this mean vis-a-vis the Prop8 case.

    First, the evidence presented at trial was disasterous for the defense (pro Prop8) side.

    Second, the judge will take the case under advisement, render a verdict, and may/may not write an opinion based upon the evidence & the law. Note, it is mostly likely the judge will issue a written opinion.

    Third, presuming the plaintiff's (anti-Prop8) side prevails, the defense can ask the trial judge for reconsideration which is all likelihood he would deny and enter final judgment for the plaintiffs. Only then can the defense file an appeal with the CCA.

    Fourth, there are several possible treatments for the case by the CCA. The most likely is a hearing before a 3-judge panel where only issues of law may be argued. However, in the CCA may choose to render judgment based solely on the "filings" in the case. Filings are written legal briefs (papers). Remember, an appellate court hears a case with the presumption that the case was rightly decided in the lower court.

    OK, enough Federal civil procedure for now… the above gets us well into mid to late 2010….

  • 192. jayjaylanc  |  January 26, 2010 at 5:38 am

    Any expert witness whose primary response to cross is "I don't know" or "I haven't read that" will frustrate a judge. It redounds more on the defense than it does on Prof. Miller, though. The lawyers are supposed to be better at finding and preparing expert witnesses than this.

  • 193. Russell V  |  January 26, 2010 at 5:38 am

    Federal Constitutional Amendments are so hard to pass anyway, needing 2/3 of both houses AND 3/4 of the states. I cannot believe this could happen. Then again, there's Hitler to consider. Yet I don't see this in the U.S. The relig. right has overplayed it's hand in that regard. There aren't enough sheep in the flock to pull that off.

  • 194. Ginger  |  January 26, 2010 at 5:38 am

    Oh thanks

  • 195. Kimeron  |  January 26, 2010 at 5:39 am

    Can you imagine what being a student of this windbag must be like? Miller is such a TOOL!

  • 196. waxr  |  January 26, 2010 at 5:40 am

    M: . . . See it as a way to allow people to express their popular sovereignty.

    "popular sovereignty" was the theory used by Stephen Douglas to allow settlers of U.S. federal territories to decide whether to enter the Union as free or slave states.

  • 197. Andrew  |  January 26, 2010 at 5:40 am

    I think the point is the church would eventually be 'forced' by public opinion–not the law–to recognize gay marriages. Exactly the same way they were 'forced' to admit black men to their priesthood by public opinion, not by anti-discrimination law.

    Churches are free to discriminate however they please. Always have been.

  • 198. Jason  |  January 26, 2010 at 5:40 am

    "If you want to resort to fear-mongering conspiracy theories – there are arguements that polygamy logically follows same-sex marriage. Could the LDS church have spent all this money campaigning against same-sex marriage with the goal of losing in the Supreme Court and paving the road for acceptance of polygamy?"

    Mouse, that's actually false.
    Polygamy flows from heterosexual marriage, always has.

    Polygamy, as it is usually practiced is serial marriage, NOT group marriage. A man may have 6 wives, but that means he has 6 marriages, each marriage consisting of one man and one woman.

    You'll note that none of the iniatives, or the federal attempts to block gay marriage said anything about how many marriages a person could have simultaneously — a rather glaring omission when they say they're trying to stop polygamy.

  • 199. Desert Verdin 1 of 1  |  January 26, 2010 at 5:41 am

    Failure to present a reasonable case does not equal ineffective assistance of counsel sufficient to warrant a do-over.

  • 200. Alyssa Ri  |  January 26, 2010 at 5:41 am

    UGGGGGGHHHH this is going to take like 3 years 'til we actually get the final decision or ever later!

  • 201. James Sweet  |  January 26, 2010 at 5:41 am

    Contrary to popular belief, SCOTUS loves to avoid getting involved.

    This is true in general, but remember that they already got involved in this trial (granted, from a completely different angle) against a dissenting opinion that questioned why the court even granted cert, let alone ruled against the broadcast.

    You make a good point about the presumption that the lower court's decision was correct, but really… do you think Scalia gives a crap about that in regards to this case?

  • 202. Glenn I  |  January 26, 2010 at 5:42 am

    What, you've never heard of "wingnut welfare"?

    wingnut welfare queens [are] people who:

    a.) Have very little talent.
    b.) Work in the right-wing media machine, think-tank circles, or the Republican Party.
    c.) Are employed solely on their willingness to act as shills for the GOP or wingnuttery in general.

  • 203. bJason  |  January 26, 2010 at 5:44 am

    T: Defendants rest.

    That's what he typed!??!!??!!!

  • 204. James Sweet  |  January 26, 2010 at 5:44 am

    Yeah I got really confused. Sorry about that.

  • 205. Barb - Lesbians Love  |  January 26, 2010 at 5:45 am

    What does the below conversation mean? It was between Judge Walker and Miller, right before they went to lunch, after Thompson had said No Further Questions of Miller. (not 100% positive that M was not actually Moss though)

    Walker: Never appropriate for the judiciary to intervene in the intitiative process?

    M: No your honoe

    W: When is it appropriate?

    M: When an initiative violates the federal constitution?

    W: That justifies the courts getting into?

    M: Yes, this is the first time it’s been in a federal court, and can I explain….

    W: Well you make an interesting comment that referenda make a check of the Lockner era judicial activism, so when it is appropriate for the courts to get involved against initiatives?

    M: When a well-understood constitutional principle is being violated. When you have interplay between popular majority and judicial review.

    Walker: Should it be checked?

    M: It should be checked in COngress or state legislature.

  • 206. Jack  |  January 26, 2010 at 5:45 am

    I believe it is also possible that the Federal Court of Appeals could place an injunction on marriage if Prop8 is overturned, at least until they make a judgment.

  • 207. inMA  |  January 26, 2010 at 5:46 am

    Ploygamy for the most part is rooted in religion whereas same-sex marriages are not.

  • 208. Barb - Lesbians Love  |  January 26, 2010 at 5:46 am

    BTW, the above is from the FDL site.

  • 209. elmo  |  January 26, 2010 at 5:47 am

    Oh sure, but these aren't media people — they're supposed to be trial lawyers! The audience isn't their fellow wingerati, or Fox Nation, but an actual honest-to-FSM Federal judge with a lifetime appointment and no patience for fools and charlatans.

    Leaving aside the merits of the guy's testimony, he was just so freaking evasive and disingenuous that even the judge picked up on it. That's just poor witness prep, and there's no excuse for it. Unprofessional and disappointing.

  • 210. Dave T  |  January 26, 2010 at 5:48 am

    In other words, "I tried to read, but there were too many words! So I checked out some links that I googled."

  • 211. Caleb  |  January 26, 2010 at 5:48 am

    I'm curious: can the court ever penalize a lawyer for repeatedly objecting on grounds that no basis?

    In particular, I'm thinking about the D-I's leading the witness objections during cross of Miller and direct of Tam.

    If I understand this correctly, leading is permitted during cross, and (slightly more limited — but still permitted) in direct with a hostile witness.

  • 212. JonInSF  |  January 26, 2010 at 5:48 am

    It doesn't look like Miller is EVER going to be over Macho Grande.

  • 213. James Sweet  |  January 26, 2010 at 5:49 am

    It is true that the potential exists that polygamy will gain support, but what reason is polygamy illegal? the same reason ss marriage is restricted, morality.

    This is actually not quite true. There are serious practical barriers to government recognition of polygamy as well.

    Same-sex marriage could be legalized today with nary a change to existing laws and regulations, other than to stop discriminating based on gender. Polygamy, on the other hand, would require a complete overhaul of both state and federal laws and regulations pertaining to taxes, inheritance, medical visitation, etc. It's not even clear what polygamy would mean in that case. Can you file a joint personal income tax return for five people??

    This is not to say that it shouldn't necessarily be recognized by the government (I waffle on it myself… I have no problem with polyamorous relationships, of course, but I am not sure that recognizing plural marriage is entirely practical). But it is a whole different issue than same-sex marriage, with a whole different (and much harder) set of challenges.

  • 214. Kimeron  |  January 26, 2010 at 5:50 am

    I think that the SCOTUS is not so much socially right wing as they are corporatists. They were placed on the court by Repubs whose sole goal was to allow corporations more and more leeway politically and economically, which at least initially will benefit "pro-business" Repubs. But, I hold a little hope that socially, they take things more seriously, at least one of the terrible five!

  • 215. Andrew  |  January 26, 2010 at 5:51 am

    This will be appealed, no question.

    One question I have for the legal types among us is can this court (or the 9th, or even the SCOTUS for that matter) find that gays are a suspect class *without* first finding that Prop 8 has a rational basis?

    It seems courts are reluctant to decide if a suspect class exists before it becomes necessicary to do so.

    I'm imagining a nightmare scenario where a lower court finds that Prop 8 passes the rational basis test, but qualifies for and fails under strict scrutiny. Then the SCOTUS steps in, says "Nope, not immutable, not politically powerless, not suspect class. Defer to lower court's ruling that it's constitutional under rational basis. Game over."

    Or what happens if this court finds no rational basis, but then 9th circuit finds that there is. Would the 9th circuit remand back here to determine if strict scrutiny is appropriate, or do they decide that themselves?

  • 216. Josie  |  January 26, 2010 at 5:52 am

    I hate to feel happy about humiliation, but in this case, I'm setting aside any feelings of pity and just Hoping and praying this is the best they have! :) Oh, just wondering; when the word "homo" pops up, is that an exact quote, or an abbreviation?

  • 217. george  |  January 26, 2010 at 5:53 am

    Hey Desert Verdin –

    When 'er the ladies gonna figure out that the sausage is always free for the askin' ; gettin' the boys to buy the milk is the tricky part.

  • 218. Barb - Lesbians Love  |  January 26, 2010 at 5:54 am

    @ Richard Cortijo "I just figured out what SCOTUS was LOL LOL (i totally thoguht ti was some sort of religious organizatoin or something at first)."

    That's so funny. In some ways, they are : )

  • 219. James Sweet  |  January 26, 2010 at 5:54 am

    I think Judge Walker is exploring the witness's competency, in an area near and dear to his judicial heart. It is no surprise that a federal judge might have a strong reaction to the assertion that ballot initiatives provide a check on the judiciary, rather than the other way around…!

    Miller's answer was kind of a non-answer… he basically said that when the judiciary is correct, then they are a check on ballot initiatives; and when the judiciary is wrong, then ballot initiatives are a check on them. Which probably went some way to placating Walker, though — "Oh, this guy isn't anti-judiciary, he's just retarded."

  • 220. Caleb  |  January 26, 2010 at 5:54 am

    I think Walker was going after the "ballot initiatives act as a check against activist judges" insinuation made by Miller. That assertion by Miller would give any judge pause — and to question Miller's reasoning. It turns the whole checks-and-balances (executive, legislative, judicial) rationale on its head.

  • 221. Ronnie  |  January 26, 2010 at 5:54 am

    Therefore this if no freedom of religion in the country because people are told that even though your religion states that polygamy is natural it is illegal…… this what i get from this:

    You can practice your religion In America as long as you do it the way I want you too.

    "ILLEGAL!"

  • 222. Barb - Lesbians Love  |  January 26, 2010 at 5:54 am

    Homo is abbreviated

  • 223. erasure25  |  January 26, 2010 at 5:55 am

    Wow, that's scary. Would that not go against our system of Checks and Balances? Like saying the President can enact laws or declare war without Congress approval?

  • 224. fiona64  |  January 26, 2010 at 5:55 am

    Dear Ben:

    I <3 you.

    Dear George:

    Not so much. How's the sand today?

    Love,
    Fiona

  • 225. rf  |  January 26, 2010 at 5:55 am

    homo is an abbreviation. can you imagine trying to type this much? I can't. Also, had someone actually said homo, i think we'd get some interesting comment from the typist…

  • 226. James Sweet  |  January 26, 2010 at 5:56 am

    I’m curious: can the court ever penalize a lawyer for repeatedly objecting on grounds that no basis?

    Yes, contempt of court. However, IANAL, but I don't think Thompson was anywhere near that. Attorneys are given a lot of leeway, and judges tend to only intervene when it is making it difficult to continue the trial.

  • 227. fiona64  |  January 26, 2010 at 5:56 am

    George wrote: When ‘er the ladies gonna figure out that the sausage is always free for the askin’

    Sorry, Georgie, but I must decline your "generous" offer. I like men.

    Love,
    Fiona

  • 228. Kimeron  |  January 26, 2010 at 5:56 am

    I completely agree Mike!! SItting here glued to my computer screen!!!

  • 229. fiona64  |  January 26, 2010 at 5:57 am

    If he does, I hope he points out that the quote is by Gandhi. :-)

  • 230. trineb  |  January 26, 2010 at 5:57 am

    It would be an awful strategy to try to lose at this level w/ subpar lawyers then try to win with a powerhouse like Ken Starr at the appellate level. Everyone knows this case is going to be appealed and that SCOTUS will likely grant cert b/c it is such a contentious issue with ripe issues to adjudicate on. The main issue why you don't go with poor lower court legal team is b/c the trial record is all that can be argued at the appellate/SCOTUS level. Whatever is not in the trial record and the briefs will not be allowed in for appellate review. Also, Moss, as I understand it, is quite a good litigator. Boies and Olson are seriously the crem de la creme…I don't think many would want to fight them. Simply put, Prop 8 has pretty weak arguments on all of the merits and most strong lawyers don't want to represent a stinker of a case.

  • 231. elmo  |  January 26, 2010 at 5:57 am

    The judge has the inherent power to control his courtroom, and that power is pretty broad. At the same time, most judges — particularly in a bench trial — are reluctant to be too heavy-handed in exercising that power.

    The "leading the witness" objection is to the form of the question, not to the substance of the information being sought. It's essentially complaining that the other side is taking a shortcut they shouldn't be allowed to take. So since this is a bench trial, the judge knows perfectly well what is going on, and knows that he can judge the testimony with that objection in mind (that the testimony is essentially being "suggested" by the question).

    The main penalty that the judge will impose, in this kind of situation, is to get pissed off at the constant objections and bear the tactic in mind when the time comes to determine which side has greater credibility. The constant objections will start to appear to be a tactic, to throw Boies off his game. Judges do not like such things.

  • 232. Will  |  January 26, 2010 at 5:58 am

    This guy is like Tam. Yes-No-Yes-No. What a joke!

  • 233. James Sweet  |  January 26, 2010 at 5:59 am

    Copy-paste of something I said above:

    Same-sex marriage could be legalized today with nary a change to existing laws and regulations, other than to stop discriminating based on gender. Polygamy, on the other hand, would require a complete overhaul of both state and federal laws and regulations pertaining to taxes, inheritance, medical visitation, etc. It’s not even clear what polygamy would mean in that case. Can you file a joint personal income tax return for five people??

    This to me is the most important difference between same-sex marriage and polygamy (there are many other differences, of course)… Government recognition of polygamy is challenging and maybe not even practically feasible; government recognition of same-sex marriage is simple.

  • 234. Scott  |  January 26, 2010 at 5:59 am

    All this time I thought this case was at the 9th Circuit. Now I realize it's just in the NoCal District Court. So does that mean this is going to get appealed *twice*? This domestically partnered Oregonian is watching the trial with slightly less baited (sic) breath now.

  • 235. Ronnie  |  January 26, 2010 at 5:59 am

    Ok people so I think I figured something out:

    In one of the videos for prop ha8te the older guy said the all americans, gay and straight, have all the same rights to marry the opposite gender in the eye of the law…..

    So!… in all actuality they are promoting adultery because we all know that when a LGBT person takes that route they will mostly likely cheat on their heterosexual spouse…it's a fact not speculation!

  • 236. JonInSF  |  January 26, 2010 at 5:59 am

    That is a critical question. In theory, a zealot will not compromise, will not back down, will not cease and desist. The most you can hope for is to put them in an untenable situation where if they act as per how they perceive they should (as opposed to, for example, how, you know, Jesus actually said they should act) then they loose much more than they think they would gain. Which legal protections will do, at least until the cop's back is turned.

    But that is sub optimal. And nobody is a pure zealot. It does not win hearts and minds and ideally we wantour enemies to become our allies. So the question becomes, how do you defeat your eny without crushing them?

    I do not know if in this situation that any sort of reasonable accommodation can be made between the two camps. I want to believe there is, but i have a feeling that it will be only when the churches' tax-exemp status is removed that we may see them, battered and bloody, finally accept the hands being offered to them by non-religous folk.

    But getting there will be, indeed, brutal and bloody.

  • 237. James Sweet  |  January 26, 2010 at 6:01 am

    Yes. I am not familiar with MPA, but there is no way a statute that tried to prevent judicial review would ever be allowed to stand. The judiciary, as you might imagine, does not take kindly to that idea…

    You would need a constitutional amendment in order to make a particular piece of legislation not subject to review.

  • 238. fiona64  |  January 26, 2010 at 6:01 am

    I've known her for years IRL. We don't always see eye-to-eye on issues, but her position is always well-argued. I respect her tremendously.

  • 239. Gary A  |  January 26, 2010 at 6:01 am

    I cant wait for this to be over and decided (in our favor of course) I just came back from the social security office to get ss #s for my two little girls. I had to put my name as "mother" because thats the only way it can be done. What a fucking joke, but its just not funny anymore.

  • 240. Josie  |  January 26, 2010 at 6:01 am

    Thanks! I was a little confused there…

  • 241. James Sweet  |  January 26, 2010 at 6:03 am

    Also, in response to Ronnie, the court has generally upheld that a neutral law that happens to ban a particular religious practice does not run afoul of the constitution as long as the state has a compelling interest in banning the practice. Human sacrifice, anybody?

  • 242. michael  |  January 26, 2010 at 6:04 am

    Hey everyone… I missed you guys…Just able to get on and read and OMG….WTF???? Pretty much sums it up of me!

  • 243. Andrew  |  January 26, 2010 at 6:04 am

    Well, as long as you don't have an odd number of spouses, and if same sex marriage is legal, you could start to approximate state recognition of polygamy. Just have your extra spouses marry each other. :)

  • 244. Ray Harwick  |  January 26, 2010 at 6:05 am

    Yep. I realized my mistake afterward. Thanks for chiming in.

  • 245. James Sweet  |  January 26, 2010 at 6:06 am

    Admittedly, she's occasionally more "stridently" antitheistic than I am, and that's saying something because I'm pretty damned "strident" myself :) But yeah, her stuff is always extremely well argued and well articulated.

  • 246. Trans  |  January 26, 2010 at 6:08 am

    Try being trans and have it happen every day Gary. Or people telling you stupid things like you can't go to the bathroom. Now that's retarded and not funny at all.

  • 247. Darth  |  January 26, 2010 at 6:08 am

    Yeah, it's a harder sell when it's your "expert" that's incompetent.

  • 248. Andrew  |  January 26, 2010 at 6:09 am

    Initiatives aren't, but constitutional amendments are. And, in the context of California and this case, were. The state courts settled that one.

    Thankfully, amending the federal constitution is a wee bit harder.

  • 249. Mikey  |  January 26, 2010 at 6:14 am

    http://en.wikipedia.org/wiki/Antonin_Scalia#Race….

  • 250. James Sweet  |  January 26, 2010 at 6:15 am

    IANAL, but I think witness tampering is more in regards to when you interfere with the other side's witness. It is standard practice to coach one's own witnesses. After all, you want them to know what is coming.

    Again IANAL, but I don't think there are likely to be additional legal repercussions about Miller's revelations — but what it does do is completely invalid him as an "expert". There is nothing inherently wrong with defense counsel providing factual information to a defense witness… but the whole point of an expert witness is that this is supposed to be somebody who is familiar with the field in which they have been designated and can therefore give a balanced view of the totality of thought in their field. (e.g. remember the plaintiff's witnesses making comments like, "Yes, I have heard of so-and-so, but his work is not particularly well respected because of such-and-such") If most of what an "expert" witness says was spoon-fed to him from the attorneys, then the judge can safely assume that his or her testimony does not reflect the totality of thought in the field, but rather is a cherry-picking of what the defense would like to highlight.

  • 251. Reagan  |  January 26, 2010 at 6:16 am

    The Supreme Court usually only takes cases where the law is not very well settled. Often happens when different appellate courts come to different conclusions. This case will go all the way up just to prevent the same issue from being tried in Texas, then New York, and so on

  • 252. Phil  |  January 26, 2010 at 6:16 am

    i wish the defense or judge had probed the notion of "judicial activism" which is republican/conservative shorthand for "a decision we don't agree with"…

  • 253. Desert Verdin 1 of 1  |  January 26, 2010 at 6:18 am

    "Ineffective assistance of counsel" is a professional responsibility standard for attorneys.

  • 254. Mouse  |  January 26, 2010 at 6:19 am

    Go to gravatar.com and link a photo to your email address, then it won't matter if there's another Sean; people will still be able to tell you apart.

  • 255. Ozymandias  |  January 26, 2010 at 6:20 am

    Ronnie,

    I have seen that argument used – and in response I ask how they would feel if their straight son or daughter married a Gay or Lesbian? How would their child feel knowing that their spouse had no sexual interest in them?

    And you're right – Gays either dating or marrying the opposite sex because society 'says so' just about never ends well.

    Love,

    Ozy

  • 256. OS2Guy  |  January 26, 2010 at 6:20 am

    Just a quick question gang: if we win this case, if Judge Walker decides the Prop 8 initiative was wrong/improper will same-sex marriage be reinstated once again in California until it is ruled upon by the Supreme Court? Is that the likely scenario or will the ban on ss marriage continue despite the outcome of this trial?

    (I ask because we run one of the largest gay-dating sites for San Francisco gay men and many have asked that very question. I do not know how to respond.)

  • 257. Mykelb  |  January 26, 2010 at 6:22 am

    The one thing that Congress can do to even the score for the SCOTUS decision on allowing corporations unfettered access to buy our Congress, is to change the SCOTUS by changing the number of seats as is their right by the Constitution. They could say "we now want 13 justices" on the court, and then proceed to seat new progressive justices.

  • 258. Desert Verdin 1 of 1  |  January 26, 2010 at 6:22 am

    It is a federal court within the 9th Circuit's jurisdiction. When the case is appealed, the 9th Circuit judges will hear it.

    See here: http://en.wikipedia.org/wiki/United_States_Court_

  • 259. Mouse  |  January 26, 2010 at 6:23 am

    You can be sure that's not what they will be reporting as the outcome of his testimony.

    Despite all of us here, this trial is practically invisible. They can spin it however they want to their followers who won't be bothered to check facts.

  • 260. James Sweet  |  January 26, 2010 at 6:26 am

    What I have heard is that most likely a stay will be issued, and there will not be another window.

  • 261. Scott  |  January 26, 2010 at 6:27 am

    I would say it's highly likely that if the plaintiffs win, the judge will order a stay pending appeal. The pre-Prop 8 period was unique in that the court ruled a law unconstitutional, and the public had to go through the whole process of collecting signatures and getting the initiative on the ballot before they could challenge the ruling. An appeal in this situation would be automatic, so they'd seek to prevent a repeat of what happened in CA by putting everything on hold until there was a final resolution.

  • 262. Mykelb  |  January 26, 2010 at 6:27 am

    I wouldn't want him back home :) Who needs a loser father who impeaches himself on the stand?

  • 263. Bill  |  January 26, 2010 at 6:28 am

    What planet do you live on?

    The ALREADY attack us directly.

    Most violent hate crimes against the LGTB community are done by 'religious' folks. Folks that love God and hate fags. I mean, the latest hate crime in NYC was carried out by a twenty-something year old man who actually had the Leviticus bible verse condemning gays tattooed right on his arm. Word for word. Right across his shoulder.

    For some reason, that scared me even more than the Matthew Shepherd crime. Not in any way to imply one was worse than the other.

    I am talking specifically about the attacker. Can you even imagine the amount of hatred one must have inside their heart to be driven to tattoo an anti-gay biblical sentiment on your arm for all eternity? SO that every time you went swimming, or went for a jog, or had sex with your spouse, the world is confronted with that expression of hatred????

    Boggles my mind, damages my spirit, assaults my very humanity.

    And the religious have the nerve to assume moral superiority???? Indeed.

  • 264. Mikey  |  January 26, 2010 at 6:29 am

    Mistrials happen when:

    * The court determining that it lacks jurisdiction over a case,
    – 9th circuit, how can they not?
    * Evidence being admitted improperly,
    – Everyone is being real careful about this.
    * Misconduct by a party, juror, or an outside actor, if it prevents due process,
    – Hmm. For some reason I think that the defense will be the ones to engage in misconduct, if there is any that would deny due process, I'm sure they'll think of it.

    There are two more reasons for mistrial involving jury conduct, which are irrelevant because there is no jury.

    (I read encyclopedias in my spare time for fun)

  • 265. Scott  |  January 26, 2010 at 6:29 am

    Well that's disappointing. When this whole thing started, my husband sent me a link to a kos article about the trial, which said the ruling would be binding on all states in the 9th circuit. That's what I get for trusting the liberal blogs he reads to do their research.

  • 266. Patrick Regan  |  January 26, 2010 at 6:31 am

    IANAL, but I would echo some of the other comments on this one. The courts know that this will be filed for appeal. My guess is that they will make it so that there isn't another window. I'm not sure of the legalities of this, but I am pretty sure that's possible.

    Love,
    pat

  • 267. Bill  |  January 26, 2010 at 6:31 am

    LINK TO 'TATTOO' GAY HATE CRIME STORY:
    http://www.towleroad.com/2009/10/antigay-nyc-beat

  • 268. Linda  |  January 26, 2010 at 6:32 am

    You take it out of their hands by going to SCOTUS. As Supreme Court Justices they are sworn to act fairly.

    We can 'aid' in this process by getting the FACTS of this trial as publicized as possible. The public has to know that this is a religious bullying issue.

  • 269. Russell V  |  January 26, 2010 at 6:32 am

    Yeah, that's what I wrote earlier somewhere above (or in the last thread). The script has written itself.

  • 270. Ozymandias  |  January 26, 2010 at 6:32 am

    I had heard of MPA, but didn't know that it seems to specifically target Judicial review for DOMA – damn, that's definitely scary… and it seems to me that the Judiciary is considered a 'clear and present threat' to DOMA remaining as a law.

    Looking at the co-sponsors shows one lone Democrat – James Marshall of Georgia's 8th District. That's disappointing. I also see Jason Chaffetz of Utah… wish I could be surprised. *sigh*

  • 271. Tom B.  |  January 26, 2010 at 6:33 am

    IANAL, but I'm guessing that the most likely outcome will be the Prop H8'ers arguing for a stay on the overturning pending appeals.

  • 272. Desert Verdin 1 of 1  |  January 26, 2010 at 6:33 am

    The right to marry means nothing without the right to marry the consenting adult of one's choice.

    -paraphrased from Loving v. Virginia

  • 273. Desert Verdin 1 of 1  |  January 26, 2010 at 6:35 am

    No it's not, Trans. It's not funny at all.

    I have a trans U.S. friend who is in a relationship w/ a woman in the U.K. Talk about difficult!

  • 274. Caleb  |  January 26, 2010 at 6:35 am

    Thanks. Great points.

  • 275. chris  |  January 26, 2010 at 6:36 am

    I think we should be ready with cameras for the gay bashings that will happen when the prop 8 side loses; then we can erase their fake "victim" meme they've been yelling ever since prop 8 passed.

  • 276. OS2Guy  |  January 26, 2010 at 6:36 am

    Okay. So the most likely or logical outcome of this trial would be that things stay "as they are" (no ability to legally marry in CA) contingent on a Supreme Court ruling.

    (Thus, any ss couples who were hoping to hire a wedding planner and send out the invitations could do still so, but they would have to marry out-of-State where applicable residency laws were met, if any, and SS marriage was legal)

    Have I got that right?

    I thank you for the quick response.

  • 277. Lesbians Love Bois  |  January 26, 2010 at 6:39 am

    What are some outcomes in past equal right trials that got to SCOTUS?

  • 278. Tom  |  January 26, 2010 at 6:41 am

    Let's chip in and get Rick a nice long hand massage after this is over. His fingers must be screaming with all that typing. Heck — make it a full spa weekend!

  • 279. David  |  January 26, 2010 at 6:41 am

    Yes, there may indeed be that many, but my question is how many of them are actually registered voters?

  • 280. Ronnie  |  January 26, 2010 at 6:43 am

    True…that is the logical next step for them seeing as today the activism has already started in the very court that this trail is taking place in……Thank God or whoever for video phones!

  • 281. Steffi  |  January 26, 2010 at 6:45 am

    yesterday I laughed at Miller's Performance.
    Today I feel real pity for him. I feel really really sorry for him. It must be hard to be smashed like that in front or a Judge.
    I think he did our case good…

  • 282. Trans  |  January 26, 2010 at 6:45 am

    For me Gary, none of it's any fun anymore. The hatred increases, and basic courtesy and respect is out the door. I can't imagine having a relationship between the UK and US .

  • 283. fiona64  |  January 26, 2010 at 6:47 am

    Loving v. Virginia, Brown v. Board of Education, Romer v. Evans, Lawrence v. Texas …

  • 284. Ronnie  |  January 26, 2010 at 6:47 am

    What are you talking about Steffi….. the judge joined in out……He asked very little questions and stepped in very little but when he did they were like a slap in the face to the witness…..that I got whiplash!

  • 285. charles2  |  January 26, 2010 at 6:48 am

    I am a bit of a Mormon expert, and yes they deny it now, and excommunicate now – but have a strong belief that it will be one of the top rewards in the afterlife.
    Single women are encouraged to remain single and aspire to being the n-th wife of a good church leader, rather than live in sin in this world.
    So YES, they DO believe in polygamy.

  • 286. James Sweet  |  January 26, 2010 at 6:49 am

    Plessy v. Ferguson….. :/

  • 287. Steffi  |  January 26, 2010 at 6:50 am

    Missed (all of) you, too. I wasn't able to comment a lot and could only catch up on the proceedings around afternoon(late evening here) the last three days of the trial
    but while reading I shouted at the screen saying WTF and Oh my god! :)

  • 288. James Sweet  |  January 26, 2010 at 6:54 am

    James, responding to this and several other comments you and others have made, a trial in SCOTUS is strictly on the briefs presented, and (usually) one hour per side of oral argument. No witnesses are called, no testimony is heard

    Thanks for correcting me on that one.

    I think the defense got enough off of Nielsen's cross-examination of, uh, I forgot the plaintiff's witness' name, but you know who I mean… There was enough dithering about the difficulty in defining LGBT that I think it gives Scalia the ammunition he needs to write a halfway-reasonable sounding opinion justifying his bigotry. As you say, the question is who will have the majority…

  • 289. jayjaylanc  |  January 26, 2010 at 6:54 am

    Dred Scott :(

  • 290. David  |  January 26, 2010 at 7:00 am

    As a former member of the Church and my mother is still very active – yes, they believe poligamy will again be practiced, during a time called, "ADAMONDIAMON", this is after the second coming, I think, if I remember my "Mormonism" correctly. By the way, I went on a 2 years Mormon mission in 1973 and the entire time I felt like a part was dying, since I knew then, I was gay.

  • 291. Becky  |  January 26, 2010 at 7:00 am

    So..according to their logic, if we win this case then we're powerful?
    Missed you all. Nice to be back with my new family.
    Love, Beck

  • 292. Lesbians Love Bois  |  January 26, 2010 at 7:01 am

    According to twitters David Blankenhorn is up now.

  • 293. inMA  |  January 26, 2010 at 7:01 am

    Actually Kim yes, I do!

  • 294. Bonobo  |  January 26, 2010 at 7:02 am

    Do we know what side that guy was on that was escorted out of the courtroom? All I heard was that he was shouting expletives, no mention who he was unhappy with, or perhaps he was just 5150?

  • 295. James Sweet  |  January 26, 2010 at 7:03 am

    Somebody else commented on that. He was yelling about Jesus, so… take a guess :p

  • 296. obsidianraine  |  January 26, 2010 at 7:03 am

    SCOTUS taking the case.

    Question: If No on 8 wins and there is an appeal and the 9th Circuit upholds, will the decision apply only to California, or will it have ramifications on the Federal Level?

    If only to Cal, then you could see the possibility of SCOTUS taking a pass on this. If Federal ramifications, I do not see how they could avoid taking the case … huge can of worms …

  • 297. Ronnie  |  January 26, 2010 at 7:04 am

    I can think of a few people I would like stone….Mylie Cyrus for instance…..just because she annoys the hell out of me.

  • 298. Ronnie  |  January 26, 2010 at 7:06 am

    David Becham?………SWEET!

    Oh no you said BLANKenhorn……hehehe

  • 299. Scott  |  January 26, 2010 at 7:06 am

    Yep, of course marrying out of state would be purely symbolic. There's nothing in this ruling that's going to stop you from hiring a wedding planner and sending out invitations, though.

    My husband and I got "domestically partnered" last July and have since been planning a ceremonial family-and-friends thing for this coming July. Unless the court rules against Prop 8 and makes the ruling binding for all 9th Circuit states, our status isn't going to change. But that's not going to stop us from having the ceremony, which we were planning long before this trial ever started. We've had an amendment on the books for years up here in Oregon but recently got domestic partnerships, which confer every state right of marriage. I believe California is the same.

    In short, have your ceremony and get whatever legal recognition you can. Don't let the years of legal stalemate stop you. You don't need the government to sanction a ceremony! :)

  • 300. Jane  |  January 26, 2010 at 7:07 am

    I've finally had time to read today's info. OMG — I'm with Steffi — I'm starting to feel bad for this guy. Is he a "paid" expert? They needed someone in a "field" with a "title", they fed him the documents, which he obviously did not digest well.

    They couldn't find anyone else who was in the field with the title that would buy into this, regardless of what they're paying.

    It's like a bad reality show & he's gotten his taste of fame. Maybe he'll have beers with the balloon boys dad.

  • 301. Brett  |  January 26, 2010 at 7:14 am

    Seems that several people are talking about the Supreme Court, but it's important to remember that the case will most likely also go through the Federal Appeals court prior to going to the Supreme Court.

    It's been a few years since I took a constitutional law course in college, but based on what I remember, I believe the below is true.

    If Walker's decision were to overturn the law, they defendants would most likely file for an emergency injunction with the Appeals court to prevent the decision from having effect until an appeal could be heard. As much as we don't want to wait, this makes the most sense because it will create an absolute mess if there's another window. Even more so if the ruling has an impact on other states with bans or DOMA/DADT.

    To the best of my knowledge, the appeal is NOT automatic in the dictionary definition of the word, but it's automatic in the sense that there's no way the defendants will let this rest if they lose the case. (Much the same, the plaintiffs won't let it rest if they lose the case.)

    I think both sides agree that this will inevitably make it to the Supreme Court, and hopefully we'll finally be recognized as equal citizens under the law. Unfortunately, Walker's decision will take time, the appeal will take time, and being heard and ruled on by SCOTUS will take time, so we're still a LONG way away from a final word.

  • 302. Caitlin  |  January 26, 2010 at 7:16 am

    I've read that there will likely be a stay granted to the bad guys–meaning that nothing will change until this has reached the highest court that will hear it.

    On a related note, does anyone have any doubt that the Supremes will grant cert and actually hear the case? What about the idea that they'll refuse to hear an appeal from the Ninth Circuit until there's a circuit split? That would leave some very interesting conflicts of law issues.

  • 303. Alan McCornick  |  January 26, 2010 at 7:23 am

    Astonishing. Is it that the defense doesn't understand what an expert witness is? Or that they can't find any? I'm not sure whether Boies is shooting fish in a barrel or whether he's just a really good lawyer. So far I have no reason to doubt both those conclusions are accurate.

  • 304. Lymis  |  January 26, 2010 at 7:27 am

    Actually, I don't think that is as unlikely as it should be. There is a possibility if the Court knows that they cannot possibly rule against it, and yet don't want to legalize same-sex marriage nationwide, that they could just not hear it until they were forced to deal with a circuit split.

    Similarly, depending on what the Massachusetts lawsuit is doing at the time, they could choose to hear this one, hold this one and hear that one, or combine the two if the issues seem similar enough. I think that last is very unlikely, though if both cases hinge almost entirely on suspect class status, it might happen.

  • 305. Lymis  |  January 26, 2010 at 7:30 am

    They'll say that, but the plaintiffs lawyers have made a great case that African-Americans have had far more wins in the court, including the 14th Amendment, and they are still a suspect class (which includes the politically powerless or politically challenged idea). To claim that one circuit court case constitutes more power than a US Constitutional Amendment (not to mention all the other case law that considers race) is absurd.

    They'll claim it, but it won't hold up.

  • 306. Polydactyl  |  January 26, 2010 at 7:40 am

    I can. Try getting your partner a green card when the only real way to immigrate these days is via blood relation or marriage… let me just say that if I could have married her myself our lives would be a LOT simpler. Shame neither of us wanted to live in the UK, we could have just gone to get married there!!

    Ironically I know a F/MtF couple who, because the one of them was born male, can get married… even though they are both legally F. Take that, neocons.

  • 307. Shira  |  January 26, 2010 at 7:42 am

    @#7, trust me, Scalia is a guaranteed vote to uphold Prop 8. He only comes out against making distinctions for things like affirmative action. He is all for discrimination based on sexual orientation – he dissented on Lawrence v. Texas!

  • 308. Callie  |  January 26, 2010 at 7:42 am

    I know the discussion has moved on with the new thread, but I just have to add this here because there was so much discussion about religion in this.

    I don't care what the major religions think of me and my relationship. If they want to teach that being gay is immoral or whatever, fine. But making up bold-faced lies and then paying out big money to spread those lies to the unwitting and unaware because you have a bully pulpit isn't okay. In fact, it's remarkably UNChristian to do so. If you want to undermine my rights as a citizen, do so with the truth not with lies. The other thing that is obvious and not okay is the obvious violation this is of the Constitution, not the seeking initiatives or having a day in court or even pursuing your ideology through the legislative process. It's a violation because it's a blanket lie. These people are false prophets using their religious cover to spread lies.

    It makes me want to sue all the major religions for character defamation and slander. It's one thing to go up against us and say the truth that they think we're immoral and don't want to recognize our relationships. It's quite another to spread lies just to win.

    Then again, if they went to the general public and said, "We don't want them to be able to marry because we don't want to recognize their relationships as legitimate or even equal," then John Q. Public would probably shrug at them and say, "Then don't recognize them. You're a church so you don't have to, now sit down and be quiet."

  • 309. rpx  |  January 26, 2010 at 8:00 am

    Okay I'll bite. What impressed you the most? Aside- How nice that you were able to see it for yourself, this I hope will go down in the history books and you will always have the satisfaction of having actually seen it in action.

  • 310. Frank  |  January 26, 2010 at 8:04 am

    Let's indulge ourselves in a little optimism and say that we do win this round. Then it gets appealed all the way up to SCOTUS. What happens in the meantime? In that short window could SSM be the law of the land? Could same sex couples get married at least in CA?

  • 311. B  |  January 26, 2010 at 8:22 am

    DonG's comment about a law being passed due to animus may be too restrictive. If you look at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?… you can find the Supreme Court decision. The majority's opinion included the following: "A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. '[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973).'"

    So, it might be sufficient to show animus on the part of the people who drafted or filed Prop 8, not the voters who passed it. Of course, there is a perfect witness for that – WIlliam Tam, who was one of the five individuals who filed Proposition EIght.

    This could lead to a narrow ruling where Proposition Eight in invalidated because of compelling evidence of animus on the part of those who filed it and the animus shown by a string of defamatory advertisements. If so, it might not be directly applicable elsewhere, but would create a disincentive to libel gays and lesbians in the future. Guess we'll have to wait to see what happens.

  • 312. Ronnie  |  January 26, 2010 at 8:24 am

    Can we do that Callie?….can every LGBT American join together in a class action suit to sue for defamation of character?

    I had that same thought……and I would totally be up to doing that.

  • 313. Frank  |  January 26, 2010 at 8:28 am

    Barb, love the addition to your name!

  • 314. Richard  |  January 26, 2010 at 8:50 am

    And I just LOVE Judge Walker's reference to the pot calling the kettle black! PRICELESS!!

  • 315. Marlene Bomer  |  January 26, 2010 at 9:12 am

    Jim (aka Prup) — I'm going to have to disagree with you on this one.

    Sotomayor, once all the kerfuffle about her "wise Latina" quip died down, got a slam dunk 68-31 confirmation by the Senate. If more centrists like her are on the bench, they'll counterbalance the bigots on the court (Scalia, Scalito, and Thomas).

    I think Kennedy will vote on our side, because I he voted to block both A2 (Romer v Evans) and Lawrence v Texas, and in fact wrote the majority opinion for both decisions! But we shall see once it reaches the Court.

    Kennedy's also from the Ninth District (San Franciscan, too!), so there's a good chance he'll vote in our favour.

  • 316. Marlene Bomer  |  January 26, 2010 at 9:31 am

    Andrew — Another poster in another thread mention that the church back in the 70s nearly lost their 401(c)(3) tax status if they didn't start admitting black men to their priesthood, and lo and behold their chief high all-wise what'shistitle had a "convenient" revelation and decreed black men WEREN'T cursed by god and thus could be priests.

  • 317. Roger  |  January 26, 2010 at 9:34 am

    "if God be for us, who shall be against us? Who shall lay any charge against God's elect?

    "it is God that justifieth, who is he that condemneth?

    "it is Christ who died, yea rather that is risen again, who sitteth at the right hand of God, Who maketh intercession for us!"

    (Romans 8;31,33,34)

    Sounds very pretty sung by a good soprano, but somehow I don't think Judge Walker will admit a recording into evidence..

  • 318. Roger  |  January 26, 2010 at 9:48 am

    Would you agree, my namesake, that Professor Miller is getting rogered?

  • 319. Liveblogging Day 11: Part&hellip  |  January 26, 2010 at 11:16 am

    […] Liveblogging Day 11: Part III […]

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