June 16, 2010
By Rick Jacobs
I’m at the American Foundation for Equal Rights (AFER) press conference. The set is a replay of the set at the opening press conference in May 2009 in LA when AFER publicly launched itself and the case.
Andy Pugno, General Counsel of (the oxymoronic) Protect Marriage opened by saying that now the judge can rule. Cooper said he awaits the judge’s ruling so this case can go to its next phase. Cooper ran out unwilling to take questions. We know he has no answers.
Now Austin R. Nimocks, the guy from the Alliance Defense Fund is trying to answer a question about the dangers that Charles Cooper mentioned over and over. He said that it’s about protecting the institution of marriage.
Pugno says that the court rests on the scrutiny issues.
Questioner says the argument you made says that marriage is to protect people who want to have children and those children. How does this work with married couples who cannot or do not procreate? ADF guy says that mothers and fathers are needed. And no public policy is perfect, not for stop signs, or traffic or marriage, but 99% of kids are born from opposite sex couples.
Pugno says that only a man and a woman can inadvertently have children. That’s why the state wants them to marry.
Questioner: Are you saying that ss couples cannot procreate?
Pugno: You don’t understand my answer. Let’s move on. Only men and women can procreate.
Q: SS and opposite sex couples can engage in irresponsible sex.
Pugno: Courts have right to channel (there he goes again).
Nimocks: Defending Prop. 8 is playing defense. Judge not necessarily critical of our not having witnesses. We did not need to have any. All we have to do is have rational basis. We do. Someone may not agree with that basis, but it’s still rational.
Q: Cooper said end of marriage would lead to end of society.
Pugno: I think he was quoting from Supreme Court. All of these questions are great for legislative debate where we change hearts and minds. We don’t ask judges to substitute their will for the will of the voters.
There is a phalanx of cameras here, at least 12 big TV cameras and another dozen small ones plus many, many stills.
Chad and Ted Olson and David Boies and the plaintiffs took the stage. Everyone applauded wildly. Chad is speaking. He said this is not a political campaign with bumper stickers and ads. The law and facts mattered here and the other side had trouble with that. At its core this case is about every person being treated equally. Equal protection is founding principle of country. Plaintiffs want same rights—not special rights—same rights.
I want to thank these plaintiffs before you who represent their own families and so many others across the country. I also want to thank Olson/GibsonDunn and Boies/Boise Schiller. We have become a family and we’re staying together until we get equality.
Kristin Perry thanks Chad and AFER and Ted and David for leading a legal team the likes of which we have never seen and not for a better cause. You gave two moms our day in court. Sandy and I just want the same thing everyone else has. That’s all the case is about: fairness and equality.
Paul Katami thanks everyone. Jeff and I are ordinary Americans. We work hard and pay our taxes. We want fairness. That’s all we ask.
Olson came up and grabbed Boies. “I don’t do anything without David Boies.”
Boies said, “One thing he did without David Boies was the best argument I have heard in 45 years.”
Ted thanks all the folks in both firms, AFER and the plaintiffs. We could not in this country stand any longer without doing something about a proposition that gets placed into the constitution that prohibits people from entering into the relationship that the Supreme Court says is the most important relationship.
I grew up in CA, now live in the east. Chad and the Foundation and so many others—so many names I won’t start going through them all. Every day, David and I have had in mind our clients. We don’t do a thing without thinking about them, about fighting for them. We want the judge to see that on our faces is the interest of our clients. Clients got out there everyday and put their faith in us. Very courageous people. They stand for millions as Chad has said.
We put together a team of lawyers that tries to live up to the promise. We’re a few steps ahead of where we were a year ago. Judge offered to have cameras in courtroom but Supreme Court did not allow. If there was ever a trial in the history of our country that the American people should have seen it was this trial. To see our clients stand up there and talk about their feeling and families was heart wrenching for everyone.
TO hear the most prominent experts in the world talk about discrimination and the history of marriage was terrific. Judge was one of most competent I have ever seen. He moved us along, but he gave us the opportunity to establish a record for the appellate courts and the American people.
Working with David Boies an honor. I said in my closing statement that they had few witnesses on the other side because many of them learned in deposition what it means to be cross-examined by David Boies. Two showed up and they understood why the others did not show up.
I feel very good that we did as good as we could.
Boies said if ever there was trial that should have been televised, it was this one. If it gets out of the darkness, people will be fair and this will all end. Thanks to Chad. No case without him. This has been a challenging, enormously gratifying case. I understand that when Ted finished in overflow room, people cheered. It’s now in the hands of the judge. We made a great case. I’m very hopeful that the facts and the law really will matter in this case. Facts and law are on our side.
Q: Is this the case that will go to the Supreme Court?
O: I believe it is. It is California. There is no other case in federal court that challenges a state. Whether or not we win or lose, we will appeal, I cannot imagine the other side won’t. Someone will bring this to the Supreme Court.
To your other question, of course it is civil rights. Supreme Court said marriage is key right. It also said intimate private sexual matters are a right. How can you then not say that marriage is not linked to that?
Presumptuous to say how judge will rule. Top graduate of Stanford. Chief judge. Been on bench for 25 years. Was at a law firm. I’m confident that he’ll do the best job he can. I don’t know how he’ll rule. He could rule on a narrow basis because California has such a bizarre set of rules.
I don’t know how long it’ll take him to rule. It’ll take him as long as it takes. He gave us 39 questions. He’s a very thoughtful judge.
Ocamb asks questions.
Olson: You sensed how passionate I was in this trial. There may have been a few times when I had more emotion running through my body, but felt that way all day today and most of time in trial. I need to be able to convey those emotions to the judge. Partially academic exercise because we are talking about the law. I think about discrimination.
Boies: I have no answer to the 18,000. Assuming that the plaintiffs win, what should remedy be? Answer they came up with, invalidate the 18,000 marriages. No one knows how they came up with that. I won’t predict, but I will make one prediction: the 18,000 marriages will not be invalidated.
(I paused to talk to Cleve. I missed a couple of questions.)
O: One of the judge’s questions was how did we get to this traditional view of marriage between a man and a woman. It is not correct factually that it has been that way which is why our opponents did not bring it up today.
Intimate relations, spirituality, family are not connected to their definition of marriage. It has nothing to do with it.
I could go on and on, but you heard the closing arguments.