Sign Up to Receive Email Action Alerts From Issa Exposed
×

Liveblogging Closing Arguments: Part IV

Liveblogging

By Rick Jacobs

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

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

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

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

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

C: Not quite the same, no.

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

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

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

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

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

[UPDATE 2:11]

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

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

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

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

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

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

[UPDATE 2:14]

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

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

J: What is the citation?

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

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

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

J: Tries to interrupt

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

J: Standard in Romer was rational basis?

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

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

[UPDATE 2:26]

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

C: I don’t understand your question.

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

C: Yes.

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

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

J. But that’s what your words say.

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

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

[UPDATE 2:35]

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

J: What elements?

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

(C pauses a bit…)

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

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

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

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

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

[UPDATE 2:44]

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

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

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

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

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

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

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

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

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

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

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


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

  1. “Like” us on Facebook: facebook.com/EqualityOnTrial and facebook.com/CourageCampaign
  2. Follow us on Twitter @EqualityOnTrial and @CourageCampaign
  3. Chip in what you can today at couragecampaign.org/TrialTracker

Tags: ,

124 Comments

  • 1. K!r!lleXXI  |  June 16, 2010 at 6:57 am

    Subscribing

  • 2. Lesbians Love Boies  |  June 16, 2010 at 7:02 am

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

    DOWN?

  • 3. Kathleen  |  June 16, 2010 at 7:03 am

    COOPER: Excuse me. I am starting to lose my voice.
    JUDGE WALKER: Not a good idea.

  • 4. K!r!lleXXI  |  June 16, 2010 at 7:04 am

    Oh, my god! We're having so much fun reading transcripts! My tummy hearts! Walker is ON FIRE! ON FIRE!

  • 5. nightshayde  |  June 16, 2010 at 7:04 am

    If the state's job is to minimize irresponsible procreation, it's doing a piss-poor job.

    Even IF it were the state's job to minimize irresponsible procreation, what would either legalizing or banning ss marriage have to do with it? Someone on the Pro8 side already pretty much said that we want infertile straight couples to get married so that the fertile person won't go out and create a baby with someone outside the relationship. By that "logic," shouldn't we be encouraging GLBTs to marry same-sex partners so they won't be able to go outside their relationships to procreate?

    Aaargh. My brain hurts.

  • 6. Lymis  |  June 16, 2010 at 7:04 am

    "Procreation that isn’t bound by social obligations than the marital one is, children raised by one parent or another, but not both. It is not a phenomenon that the court has to concern itself with with ss couples."

    Tell that to the lesbian couple who is still fighting for custody of their daughter – the ones from Vermont, were the one mom moved to Virginia and found Jesus.

  • 7. Lesbians Love Boies  |  June 16, 2010 at 7:04 am

    yay!

  • 8. James Sweet  |  June 16, 2010 at 7:05 am

    Someone in the last thread was questioning how Cooper passed the bar, and a reply was that he's actually quite a skilled lawyer, and it's just that their position is indefensible. I agree, and I'd like to highlight a phrase here that I think demonstrates just that:

    "Without intrusive inquiry into fertility"

    That, to my mind, is a clever argument to parry the obvious flaw in the marriage-is-for-procreation argument. He's pointing out that it would be impossible to restrict marriage to procreative couples without obtaining information that pretty much everybody agrees is off-limits for the government.

    It's still mighty weak tea, of course, because it forces you to take the position that if it were plainly and reliably obvious which prospective marriages would result in procreation, that you would deny it to those that couldn't. For example, it forces you to say that the only reason men who have a vasectomy can get married is because of HIPPA. Still not a comfortable position to be defending…

    Really, Cooper is doing the best he can with an impossible position. Not that I'm defending him; while criminal defense lawyers have an ethical obligation to defend even the most despicable clients, civil lawyers have no such obligation. Regardless of an individual lawyers's personal views, accepting the defendants' case is a major ethical lapse.

  • 9. Jim  |  June 16, 2010 at 7:05 am

    This guy Cooper is an idiot, hell bent on proving same!

    I respectfully disagree with the judge. Cooper losing his voice would be a very good idea, but only for the side he represents.

  • 10. Alyssa H.  |  June 16, 2010 at 7:05 am

    One of my updates said this:

    The bailiff just asked Maggie Gallagher of @NOMTweets to put her feet down. How disrespectful to the court! #Prop8

    Hahah..

  • 11. JC  |  June 16, 2010 at 7:05 am

    I just can't believe, really, that we have to actually FIGHT these people so hard with millions of dollars and years and years of time based on this kind of argument. [shaking head in complete disbelief]

  • 12. Lesbians Love Boies  |  June 16, 2010 at 7:07 am

    I am beginning to wonder if some of these boneheads think that if SS marriage is made legal, then all the hetero's will convert to homosexuality.

  • 13. Roger  |  June 16, 2010 at 7:07 am

    Cooper: Only 16 states had a prohibition against inter-racial marriage. They actually made peple have illegitimate children. The purpose of marriage is to have legit children. This racial restriction is at war with that purpose.
    Judge Walker: Why isn’t the prohibition of marriage by SS couples at war with marriage for children?

    So according to Mr.Cooper gays and lesbian relationships can make babies.
    Wait…WHAT!?

  • 14. Steve Mathias  |  June 16, 2010 at 7:08 am

    You know, he keeps talking about the state's interest in the child being brought up in a married household, to minimize the dependence and thus burden on the state.

    Could this same logic not be applied to STDs? They seem to believe that we're just walking AIDS factories, however they also seem to believe that marriage reduces promiscuity. By their own argument, the rate of STD transmission would be reduced in SS individuals, which reduces the number of them who end up on disability for advanced HIV/AIDS.

    Sort of the same argument, applied for same sex marriage. By their logic, the state has a legitimate interest in promoting it, not denying it.

  • 15. New  |  June 16, 2010 at 7:08 am

    Stick around, Coop will use the Adam & Steve argument anytime now.

  • 16. Santa Barbara Mom  |  June 16, 2010 at 7:09 am

    OMG! The bailiff had to ask Maggie to put her feet down…..too bad someone can't escort her out.

  • 17. Tam Lin  |  June 16, 2010 at 7:09 am

    Mr Cooper seems to be in a hole and digging, and with each question Justice Walker upgrades the shovel.

  • 18. Phil L  |  June 16, 2010 at 7:09 am

    I know… I thought it was bad enough that she had no shoes in the courtroom, but having to be told to put them DOWN implies that she had them propped up as though there were an ottoman before her.

    I hope that the media outlets have a field day with her loaferless antics!

  • 19. Ronnie  |  June 16, 2010 at 7:09 am

    subscribe

  • 20. Jeremy Braud  |  June 16, 2010 at 7:10 am

    To read every word from the trial go to http://bit.ly/deHJiu

  • 21. Phil L  |  June 16, 2010 at 7:11 am

    I agree. Even if/when it comes to appeal it's not like their case can be CHANGED.

    As far as I know when it comes to appeal they base their decision on evidence and testimonies from the trial being appealed. If that's true, and THIS is what they're going with, I think that they won't stand a chance AT ALL!

  • 22. Ben  |  June 16, 2010 at 7:12 am

    It's really true. The state's interest if it was really interested in preventing irresponsible reproduction would best be served in all sorts of ways that this doesn't cover … including distributing condoms by the hundreds to every citizen of legal age. How's that for an option?

  • 23. Lymis  |  June 16, 2010 at 7:12 am

    "He’s pointing out that it would be impossible to restrict marriage to procreative couples without obtaining information that pretty much everybody agrees is off-limits for the government."

    Wrong, and the judge skewered this one earlier and easily. If procreation is the be-all and end-all, then you just withhold the benefits of marriage until someone pops out a kid. No intrusion at all. All you have to do is show up with the birth certificate showing both your names, and you get a marriage license.

    Of course, since, as the judge pointed out, marriage is about a lot MORE than just procreation, this isn't workable.

    But it isn't about how intrusive the question is or isn't.

    That's a lot like saying it's intrusive to ask someone to demonstrate they can drive before giving them a driver's license.

    If they want church sanction for being allowed to try to have kids, wonderful – church wedding, no benefits, no civil marriage. Pop out a kid, civil marriage.

    Of course, that scheme would still apply to same sex couples. Lesbians for sure, but gay men can still father children. Just close your eyes and think of England. Or Liza. Or an Abercrombie and Fitch ad campaign.

  • 24. Straight Grandmother  |  June 16, 2010 at 7:13 am

    YES!!!!!!!!!!!!!!!! Are you right in the courtroom?
    I am so happy you posted that. I am glad she was put in her place. This woman has no manners and she rund around the country telling all of us how to live?

  • 25. Steve Mathias  |  June 16, 2010 at 7:13 am

    Okay, so how does "The Yes on 8 position specifically references that marriage is a fundamental relationship in society and in the voter information guide itself," answer the question "Where does it show that the procreative function was a rationale for voters in upholding Prop 8?"

    Love,
    Steve

  • 26. Lymis  |  June 16, 2010 at 7:13 am

    I don't think they think they still have a chance. I think they think they still have a cash cow. A pro-gay finding in this case, and NOM will rake in MILLIONS.

  • 27. Tam Lin  |  June 16, 2010 at 7:14 am

    Consider the number of prominent homophobes who have been caught out as hypocrites. It seems pretty plausible that the defendants are bi, and unfortunate enough to have a messed up religion that tells them its a bad thing. So they assume that everybody has such a choice.

  • 28. Steve V  |  June 16, 2010 at 7:16 am

    It feels like Cooper wants to say "God says homosexuals are gross and God is never wrong" and he knows he can't say that in a court of law.

  • 29. DreamyAJ  |  June 16, 2010 at 7:17 am

    I never wanted to have kids, and now I can't. I guess that means I should never have gotten married, and now that I can't have kids, I should be required to divorce? I didn't ever _have_ to get married, but I wanted to. Why was that OK?

    IMHO marriage is as much, if not more, about property rights and responsibility than about children. I have the right to share my property with an opposite sex spouse but LGBT isn't entitled to same property rights with same sex partner? WTF?

  • 30. Santa Barbara Mom  |  June 16, 2010 at 7:17 am

    That's a great visual!

  • 31. Lesbians Love Boies  |  June 16, 2010 at 7:18 am

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

    Doesn't the above statement PROVE that we are discriminated against?

  • 32. Lymis  |  June 16, 2010 at 7:18 am

    "Neither partner with respect to the same-sex couple represents a concern about irresponsible procreation with a third party."

    And yet, in the trial, they kept claiming that sexual orientation isn't innate or immutable, because lesbians so often change teams and end up with men.

    Not saying that's so, but these people can't seem to pick a lie and stick with it.

    Where exactly do they think these lesbian moms are getting pregnant? Not all of them are doing it via clinics. But then, we can't have RESPONSIBLE procreation with third parties, can we?

  • 33. MaskedBandit  |  June 16, 2010 at 7:20 am

    "We’re not suggesting that there is a distinction between gay and opposite sex couples with respect to those considerations, but there is a distinction in terms of procreation. Neither partner with respect to the same-sex couple represents a concern about irresponsible procreation with a third party."

    Being gay or lesbian makes you attracted to your own gender, but it doesn't render you infertile. If your partner is bi or just susceptible to having sex with anyone while drunk, it's perfectly possible that they might "irresponsibly procreate."

  • 34. Steve Mathias  |  June 16, 2010 at 7:21 am

    Absolutely, but bear in mind in this case we're not talking about whether gays are discriminated against, but whether it is legal to do so, and whether there is legitimate state interest in doing so.

    Love,
    Steve

  • 35. Straight Grandmother  |  June 16, 2010 at 7:22 am

    OhhMyGAWD! This is that monkey trial all over again. we cannot make this sh*t up-

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

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

    He TOTALLY does not answer the judges question!!! I am not a constitutional lawyer but I know a dodge when I see one.

    He should simply have a tape recorder and every time the judge askes a question should play the same tape. he give the same answer to every question. Hey my grandkids were, to use their term, "procreated" exactly like the Judge said. Does the state not have an interest in my grandchildren???

    All Cooper ever does is talk about same sex couples he NEVER talks about same sex couples and thier children. Even when asked by the judge he simply won't talk about it.

  • 36. Lymis  |  June 16, 2010 at 7:22 am

    I'm waiting for, "But your Honor, gay sex is icky!"

  • 37. Steve Mathias  |  June 16, 2010 at 7:22 am

    I think, as is so often the case, bisexual people are being ignored here.

    It's certainly possible for someone to be in a loving same sex marriage, and still get a little opposite-sex action on the side that leads to unintended pregnancy.

  • 38. Roger  |  June 16, 2010 at 7:23 am

    Is it just me or does it seem like he's basically saying that marriage is good for kids and nothing about why we should discriminate based on gender?

    You know you're f'd when the Judge's questions to the other side make a better case for your case than your own arguments.

  • 39. R Lavigueur  |  June 16, 2010 at 7:24 am

    Not to mention the fact that Cooper's statement seems to assume that none of those same-sex couples include a bisexual individual.

    Honestly, does even Cooper believe 'because straight couples can't be trusted not to accidently have kids, they all need to be married (after which they of course, will not cheat, ever, as has been demonstrated by history)' is strong enough to even merit the term arguement?

  • 40. Steve Mathias  |  June 16, 2010 at 7:24 am

    And is it me, or did he dodge talking about procreation, and go into child-rearing?

    Mr. Cooper, they are not the same subject.

    Love,
    Steve

  • 41. Straight Ally #3008  |  June 16, 2010 at 7:24 am

    So the Prop 8 side is in favor of birth control and sex education, right?

    *crickets chirping*

  • 42. Richard A. Walter (s  |  June 16, 2010 at 7:24 am

    That is all their case is about–talking in circles.

  • 43. New  |  June 16, 2010 at 7:25 am

    I found Coop's defense very discriminatory at times.

  • 44. liz mullen  |  June 16, 2010 at 7:25 am

    I am horribly outraged and saddened, as 1 of the 36,000 married gay people in the state of ca, that I am unable to witness the legal proceedings that will directly affect my own marriage, yet I was able to witness every ounce of oj simpson's trial. How is this possible in america?

  • 45. Richard A. Walter (s  |  June 16, 2010 at 7:25 am

    subscribing

  • 46. John  |  June 16, 2010 at 7:26 am

    I'd like to thank Cooper for just making our case:

    J: Standard in Romer was rational basis?

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

  • 47. MaskedBandit  |  June 16, 2010 at 7:26 am

    Children of same-sex couples are an impossibility for those who oppose same-sex marriage, with the exception of those couples who blatantly violate nature via science. (Those children obviously aren't really children, but more like androids or puppies.) Therefore, there's no need to talk about them, because they can't exist even if they do exist.

    At least, that's the impression that I've gotten from anti-gay activists.

  • 48. Steve Mathias  |  June 16, 2010 at 7:26 am

    Blame a Supreme Court that gets more conservative with every appointment.

    Remember, Justice Stevens was appointed as a conservative, at least at the time he went in. Now he's considered a liberal voice on the court.

    Scary, isn't it?

    Love,
    Steve

  • 49. Straight Ally #3008  |  June 16, 2010 at 7:27 am

    To give them every possible benefit of the doubt, I think it would be more likely that people would come out of the closet and live honestly as opposed to denying their own sexual orientation and entering into sham marriages.

  • 50. Bill  |  June 16, 2010 at 7:27 am

    Was Magpie REALLY barefoot in the courtroom with her feet up???

    I thought he was joking.

    Why on EARTH would she do that??

    This has freaked me out more than any of the asinine statements from their lawyers…

  • 51. Steve Mathias  |  June 16, 2010 at 7:27 am

    I wish that did make our case, but Romer was talking about different legal rights, and couldn't establish state interest.

    The truth is, if the plaintiffs can establish even the most remote, non-animus-based, reason for this Proposition, we lose.

    Love,
    Steve

  • 52. nightshayde  |  June 16, 2010 at 7:27 am

    No, no, no. As long as people don't have premarital sex, it doesn't matter. People should only be getting married in order to have children — so there's no reason to tell them how to NOT have children.

    If only we could just all be like the Duggars. *shudder*

  • 53. MaskedBandit  |  June 16, 2010 at 7:28 am

    Blame the Supreme's. They bought the idiotic rhetoric that the pro-8 side was endangering themselves and their private lives if the trial was broadcast. The judge originally wanted it to be broadcast.

    Never mind that only two witness showed up, and both are known public figures.

  • 54. Joey  |  June 16, 2010 at 7:28 am

    OMG, is this guy Cooper serious???? Why doesn't he just come out and say "Your Honor, we just hate the gays!?" I think that would make a clearer argument than the argument he is trying to give.

    P.S. i too will donate to the cause :-)

  • 55. Kerri  |  June 16, 2010 at 7:29 am

    I totally hear you on that. My life has been intrusively affected and we aren't there to witness the outcome? seriously.

  • 56. John  |  June 16, 2010 at 7:31 am

    :-(

  • 57. John  |  June 16, 2010 at 7:33 am

    Wait a minute . . . they petitioned Walker today to nullify the 18K marriages that were performed, and now their attorney says, "No, your honor. That is not our position at all."

    Excuse me?

  • 58. elia  |  June 16, 2010 at 7:34 am

    and the judge has just backed him into a corner …
    "JUDGE WALKER: That it is — because it is a
    gender-specific right.
    MR. COOPER: That.
    JUDGE WALKER: That's what you are saying.
    MR. COOPER: Yes, I am. The right is —
    JUDGE WALKER: Gender specific. "
    http://www.equalrightsfoundation.org/action/follo

  • 59. Steve Mathias  |  June 16, 2010 at 7:34 am

    No need to get upset yet, though, John.

    So far, their star witness (and only witness) was so bad that we were able to cite him as evidence supporting gay marriage.

    Also, their reasoning (procreation) cannot be applied retroactively to the act of voting against it, and I don't think he's described it being in any campaign literature. Only child-rearing seems to have been mentioned in the context of the trial.

    Love,
    Steve

  • 60. Straight Ally #3008  |  June 16, 2010 at 7:34 am

    It's like the Louis C.K. clip I posted earlier.

    "Your honor….THEY'RE F—IN' QUEE-AH!"

    >;-D

  • 61. Lesbians Love Boies  |  June 16, 2010 at 7:35 am

    Perhaps they got scolded by the media over it, wet their pants and then decided it was someone else who requested that…not us.

  • 62. Steve Mathias  |  June 16, 2010 at 7:36 am

    "Your Honor, I would like the witness' testimony to be stricken from the record."

    "But he's your witness."

    "Yes, Your Honor, but he's also devastating to our case."

  • 63. Kathleen  |  June 16, 2010 at 7:36 am

    As far as I can tell, all Cooper's arguments as to "why the state and every state and every society for the millennia has attempted to channel naturally procreative sexual conduct between men and women into an enduring union, an enduring stable union for the sake primarily of the children" makes a really good case for encouraging marriage of opposite sex couples who want to have children together. I don't see what it has to do with denying ss couples the right to marriage. If anything, it would seem to bolster the argument that if ss couples want children together, they should be encouraged to do it within the confines of this greatly respected institution of marriage.

  • 64. Frijondi  |  June 16, 2010 at 7:37 am

    Single parents, take note: if Prop. 8 is upheld, Maggie and friends will take an interest in you nest, and start dreaming up all kinds of legislative ways to make your lives more difficult. No matter how responsible you are, or how loving, your very existence is an affront to their 1950's vision of how the world should be.

  • 65. gayathomemom  |  June 16, 2010 at 7:38 am

    "JUDGE WALKER: And religious discrimination is
    of course prohibited as one of these fundamental rights
    and subject to such scrutiny and the state imposes some
    classification based on religion and religion is
    certainly not an immutable characteristic. "

    Ha!

  • 66. Lymis  |  June 16, 2010 at 7:38 am

    Not so much.

    if they (I think you meant Defendants, or Defendant-Intervenors) can establish a non-animus based reason for the proposition, it MIGHT pass rational basis – and they sure aren't making a good case here, since the apparently are relying on "facts" like babies can only happen when you are married and gay people don't have any kids.

    But the stage is well and truly set for this case to establish federally that LGBT people are subject to at least quasi-suspect, and more likely suspect classification – meaning that stricter scrutiny applies.

    Walker has very clearly offered both sides chances to defend or attack that suspect status – and the Plaintiffs took it and ran, while the D-I's just got run over by it.

    I notice the D-I is not trying to claim any more that we aren't discriminated against, or to establish how politically powerful we are. He's not trying to fight suspect classification at all.

  • 67. Straight Grandmother  |  June 16, 2010 at 7:39 am

    Correction in my post above this
    All Cooper ever does is talk about same sex couples he NEVER talks about same sex couples and thier children. Even when asked by the judge he simply won’t talk about it.

    should say this
    All Cooper ever does is talk about OPPOSIT sex couples he NEVER talks about same sex couples and thier children. Even when asked by the judge he simply won’t talk about it.

  • 68. Straight Ally #3008  |  June 16, 2010 at 7:40 am

    They’ve gone to great lengths to talk about the religious beliefs of many who supported Prop. 8. Hardly remarkable that religious people are involved. It’s part of our tradition from abolitionists to civil rights and it’s constitutionally protected

    Right, the Bible was never used to justify slavery, ever. It was only used by the abolitionists. Yes indeed.

    Seriously, guys, when everyone reading this is dead and gone, some fundamentalist Christians of the future will talk about how instrumental they were in securing gay rights.

  • 69. Lymis  |  June 16, 2010 at 7:41 am

    No, they didn't petition to nullify them. They petitioned to declare them invalid. There is a difference.

    If they are held invalid but not nullified, then they'll get no marital benefits in California, but their marriages will still be portable to Iowa, Massachusetts, DC, Canada, etc.

    My husband and I were married in California during the window, but live in Illinois. Our marriage is unrecognized here. That's what they are asking for California to do.

  • 70. Sapphocrat  |  June 16, 2010 at 7:41 am

    This part was, IIRC, foreshadowed in DI's response to Judge Walker's questions: "If that couple gets married – all of the social norms that come with marriage – that encourage fidelity, operate to society’s benefit, in the sense that the fertile member of that couple will be less likely to engage in sexual relationships with third parties that lead to irresponsible procreation."

    IMO, it _absolutely_ proves we are being discriminated against.

    Furthermore, the illogic — that marriage automatically discourages hetero cheating, so a straight spouse is less likely to "accidentally" procreate — is ludicrous, especially in light of the DI's assertion that sexual orientation (especially for lesbians) is not immutable.

    Meaning: If we go with that stupidity, just for the sake of argument, then can Cooper argue that either partner in a lesbian relationship is likely to "accidentally" procreate outside her marriage (after all, in Coop's world, we're not really lesbians, are we)? Or would he be forced, following his own "logic," to admit that same-sex marriage would inhibit lesbians from straying, and thus reproducing "accidentally" (thus "encouraging fidelity," thus _strengthening_ society at large)?

    (Hope that made sense — it's been on my mind since reading the DI's lame responses yesterday, but I'm not sure I can articulate the idea very well yet.)

    P.S. In this argument, Cooper is parroting Maggie Gallagher's long-held conviction that marriage is the only way to keep straight men from cheating on straight women. Read some of her longer papers, and you'll see Maggie believes all men are brainless, irresponsible idiots, who need women to impose moral standards on them, lest they wander through life like brute beasts, schtupping anything that moves.

  • 71. Steve Mathias  |  June 16, 2010 at 7:41 am

    I personally laugh that they brought up abolition and civil rights.

    Did they forget they were the ones arguing the losing side there too?

    Love,
    Steve

  • 72. Frijondi  |  June 16, 2010 at 7:42 am

    Correction: "in you next" (although "in your nest" would also work.)

  • 73. Sapphocrat  |  June 16, 2010 at 7:43 am

    Bingo, Exactly.

  • 74. Nikki  |  June 16, 2010 at 7:44 am

    Walker laying doubt as to the importance of immutability wrt strict scrutiny.

  • 75. Nikki  |  June 16, 2010 at 7:46 am

    Yeah, Coop, we gays and lesbians are SO politically powerful. gag.

  • 76. 109  |  June 16, 2010 at 7:46 am

    I remember following the trial in January. . . I'd forgotten how stupid the defense sounded. It all comes back now.

  • 77. Sandy Snyder  |  June 16, 2010 at 7:46 am

    I didn't read all the comments, so apologies if this has been mentioned, but a recent study shows that kids of lesbian parents do better than their peers. Here's one reference link: http://www.newscientist.com/article/dn19014-child

  • 78. Lymis  |  June 16, 2010 at 7:48 am

    "the court has identified race because the central concern of the 14th Amendment was to eliminate all insidious racial classifications. Sexuality is not an immutable characteristic."

    So, um, insidious sexual classifications are still good to go. This is what you want your legacy to be?

  • 79. Steve Mathias  |  June 16, 2010 at 7:48 am

    That's sort of a fun distinction. It's like saying "Here, we gave you some rights, now get the hell out of our state."

    Love,
    Steve

  • 80. Lymis  |  June 16, 2010 at 7:49 am

    Sorry, you should have read the other comments. The Defendant-Intervenors have conclusively showed that gay and lesbian people can't have children.

    Imaginary chlldren are not covered under the 14th Amendment. Or something.

  • 81. Straight Grandmother  |  June 16, 2010 at 7:50 am

    Joey you are so right!!! U2 Straight Ally

  • 82. Kathleen  |  June 16, 2010 at 7:50 am

    Here's why they say they're not arguing marriages should be annulled:

    Their position is that if Walker holds that Prop 8 is unconstitutional ONLY for the reason that some California ss couples can marry and others can't, then Walker shouldn't remedy the situation by striking down Prop 8; he should instead annul the marriages. However, they claim that mere fact (some ppl can marry, others can't) does not make Prop 8 unconstitutional. Thus, they say they're not arguing marriages should be annulled.

    Got it? I know….

  • 83. 109  |  June 16, 2010 at 7:51 am

    We're quite fortunate that the case got a judge who seems to appreciate rationality, and can tell a real argument from a bad one. If this fool Cooper can been a lawyer, I'm sure there are illogical fool judges out there too.

  • 84. Richard Cortijo  |  June 16, 2010 at 7:52 am

    OMG OMG this is better than any TV show…I can almost see Mags fat disgusting toes stinking up the courtroom along with Mr. Coopers rhetoric!

  • 85. JoshT  |  June 16, 2010 at 7:53 am

    So, I have a question here… it seriously seems to me he's saying heterosexuals should get married to prevent accidental pregnancies…. Am I right? So preventing homosexual marriage will immediately stop random one night stand pregnancies that have been going on for centuries?

  • 86. Lymis  |  June 16, 2010 at 7:54 am

    Was that before or after the house dropped on her?

  • 87. Wren  |  June 16, 2010 at 7:55 am

    Aren't they? :) Kidding, kidding!

  • 88. Nikki  |  June 16, 2010 at 7:56 am

    Okay, who didn't close their 'bold' font tag?

  • 89. Richard Cortijo  |  June 16, 2010 at 8:00 am

    hahahahaha

  • 90. Frijondi  |  June 16, 2010 at 8:00 am

    Yes, because homosexuals remind people that sex doesn't have to be procreative. Two infertile heteros going at it at least look like they could be procreating; therefore, letting them get married won't give the young folks any ideas.

  • 91. Sapphocrat  |  June 16, 2010 at 8:10 am

    Oh, I thought it was because if we let gays marry, straight men will suddenly realize they can, you know, turn gay, run away to San Francisco, get married, and share a gorgeous flat at 18th & Castro. The anguish of not being able to measure up to all that is what fuels the Maggie Gallaghers of the world.

    (No, really: I think that _is_ what fuels the Maggie Gallaghers of the world.)

  • 92. RebeccaRGB  |  June 16, 2010 at 8:11 am

    I don't know if this is what you're quoting, but here is the complete quote from Liar Liar:

    Fletcher: Your honor, I object!
    Judge: Why?
    Fletcher: Because it's devastating to my case!
    Judge: Overruled.
    Fletcher: Good call!

  • 93. RebeccaRGB  |  June 16, 2010 at 8:14 am

    Killing the bold

  • 94. RebeccaRGB  |  June 16, 2010 at 8:15 am

    Or maybe not. Sorry.

  • 95. New  |  June 16, 2010 at 8:19 am

    "Sexual orientation is not an immutable trait that is an accident of birth."

    "Sexuality is not an immutable characteristic."

    If sexual orientation includes HETEROsexuality, what is his point?

  • 96. Richard A. Walter (s  |  June 16, 2010 at 8:39 am

    The ones that run in MagPie's crowd probably are. After all, isn't she friends with Dr. Rekers?

  • 97. Joe  |  June 16, 2010 at 8:50 am

    Actually that was just the number when Loving struck down the ban on interracial marriage. Closer to 30 did in 1948 and almost 40 have had a ban at one time or another.

  • 98. Sheryl  |  June 16, 2010 at 8:52 am

    New, to their interpretation it means that if one chooses their sexuality then everyone can be heterosexual and already has the right to marry. Now, ask one of them when they made the choice to be heterosexual, blank stare but never a time in their life when they consciously decided to be heterosexual.

    Sheryl, straight Mormon mother to a wonderful son, who just happens to be gay.

  • 99. Joe  |  June 16, 2010 at 8:54 am

    There's several comedies that have been made exactly to that effect. :-)

  • 100. Joe  |  June 16, 2010 at 8:57 am

    They made it up "post hoc" I believe is the legal term. :-)

  • 101. Joe  |  June 16, 2010 at 9:00 am

    "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." That was the Virginia State Supreme Court's reasoning in upholding the ban on interracial marriage.

  • 102. Chris B  |  June 16, 2010 at 9:07 am

    He said this several times in the last post, and here he says it again:

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

    Basically he is saying that without marriage, the human race will die out. I think he never had that "special" talk with his father about where babies come from. Marriage is not sex, and sex is not marriage.

    As for the invasive fertility test, couldn't we just say that women over the age of 55 (or so, please don't be offended) should be considered infertile and therefore the state has no interest in them getting married? That would definitely save the state tax dollars, right?

    He keeps banging on the reproduction/children drum. But CA allows gay people and single people to adopt-that seems to be at complete odds with his rationale. CA also allows (and pioneered?) no-fault divorce. If the state has an overwhelming interest in creating marriages for the sake of the children, wouldn't it have an equal interest in making divorce as difficult as possible?

  • 103. Bryan  |  June 16, 2010 at 10:29 am

    I know, right?!? And doesn't his argument imply horrible things about adopted kids, too?

  • 104. Richard A. Walter (s  |  June 16, 2010 at 10:34 am

    Yes, it does. And as an adult who was adopted as a child, I resent those implications.

  • 105. Jeff jones  |  June 16, 2010 at 10:48 am

    CREDIBLE EVIDENCE in regards to the whole "are children better off with two gay parents?" issue.

    Required reading : Lesbian and Gay Parents and Their Children: Research on the Family Life Cycle (Contemporary Perspectives on Lesbian, Gay, and Bisexual Psychology) by Dr. Abbie Goldberg.

    "In fact, studies show that  girls raised by same-sex parents are more likely to want to be doctors and lawyers (30 percent more aspire to such jobs than their mom-and-dad-raised counterparts), while boys–well, boys still feel they can be anything they want. Lesbian mothers (the data on gay dads is currently limited) raise kids who play with both dolls and trucks and, in general, ignore all those years of social conditioning regarding gender roles." –change.org

  • 106. Josh  |  June 16, 2010 at 11:39 am

    Ok, their argument is that marriage is for the children, "minimize irresponsible procreation." So wouldn't that dictate that the most responsible parents should be first on the list of those qualified for marriage? Since g&l couples plan to be parents and only have children when they are ready, wouldn't they be the most qualified parents of all?

  • 107. Stogiebear  |  June 16, 2010 at 1:24 pm

    If the state's interest to control irresponsible procreation is so great that's an easy one to fix: mandatory sterilization of all prepubescent children. Upon marriage to an opposite-sex person and signing a binding immutable legal document stating they give up all legal recourse to the courts to divorce, they may have surgery to reverse the sterilization. Irresponsible procreation taken care of. NEXT!

    But, that's not really what it's about. Is it?

  • 108. Sean  |  June 16, 2010 at 2:06 pm

    Wow. There’s really no other way to say this: they’ve lost this one. Completely and utterly. Cooper doesn’t know what he’s talking about and Maggie over in the corner is doing nothing but hurting their case.

    I’m still baffled they think they stand a chance.

  • 109. Steve Mathias  |  June 16, 2010 at 2:06 pm

    I’m glad to see he at least made her respect the court. I can’t even fathom taking off my shoes in a court room, especially when I’m one of the parties to the process.

    On a side note, it’s hard to imagine how we can lose, but I know we still can. If we do, I will be very, very disappointed.

    Love,
    Steve

  • 110. Lymis  |  June 16, 2010 at 2:06 pm

    I swear he just said that children conceived in vitro aren’t people.

  • 111. Prop. 8 Closing Argment: &hellip  |  June 16, 2010 at 2:09 pm

    […] [NOTE] This thread was getting a little long, so we switched over to a new one. […]

  • 112. Ron  |  June 16, 2010 at 2:20 pm

    For the life of me I cannot understand why Judge Walker did not cite the bigot for contempt of court and slap her with a whopping fine!! Putting her bare feet up in a federal courtroom! That was her blatant f— you to the judge, a juvenille, arrogant, incredibly low-class move. Ah, Maggie, what a standard-bearer you are! LOL

  • 113. Skemono  |  June 16, 2010 at 3:04 pm

    No, that's from Judge Bazile's opinion. He was the judge in their initial trial, not part of the State Supreme Court.

  • 114. Top Posts — WordPre&hellip  |  June 16, 2010 at 5:03 pm

    […] Liveblogging Closing Arguments: Part IV By Rick Jacobs The last thread was getting a bit long so here is a new one. Cooper: Only 16 states had a prohibition […] […]

  • 115. James Sweet  |  June 17, 2010 at 1:30 am

    Hardly remarkable that religious people are involved. It’s part of our tradition from abolitionists to civil rights

    Exactly. The vast majority of religious groups were against abolition and against civil rights, just like the vast majority are against gay rights today. It's part of our tradition for religion to impede progress!

    And mark my words, in 50 or 100 years, religious apologists will rewrite history so that those praiseworthy-but-in-the-minority churches that have supported gay rights will be perceived as having been in the majority, with nasty evil secularists being the ones opposing gay rights.

  • 116. James Sweet  |  June 17, 2010 at 1:34 am

    gender limitation is the definition of marriage.</blockquote

    Wait, gender limitation is part of the definition, or it is the definition?

    If Cooper is really saying the latter, is he saying that if he is in a room alone with his mother, they are married? Ew!!!!

  • 117. Tara Metier  |  June 17, 2010 at 4:27 am

    Acually yes. A study by Emory University in 2009 found this out too. The researchers estimated that a constitutional ban on gay marriage raises the rate [of H.I.V. infection] by four cases per 100,000 people.

  • 118. Richard A. Walter (s  |  June 17, 2010 at 5:52 am

    Thank you , Dreamy AJ. Also, marriage is about wanting to have a legally binding, recognizable covenant with your beloved that each of you will take care of the other, and that in those situations where there are children involved, that you are also providing for their health, safety, and welfare. Is it selfish of gay couples to want to marry so that their children are more stable, and so that we are able to do an even better job of providing for them? That is what the anti-SSM folks are saying. That we are selfish for wanting marriage along with all of its rights and responsibilities.

  • 119. Erica  |  June 17, 2010 at 7:20 am

    ok look d00d if gays get married, it DOES NOT stop straight couples from marrying and having kids. He is saying marriage is for procreation and we need to protect it. Well you straight folks can still get married and have your babies even if gay folks get married too, we aren't stopping you. His argument is stupid.

  • 120. Erica  |  June 17, 2010 at 7:23 am

    omg right? like what a disrespectful twat. what the hell was she thinking? WHO SERIOUSLY THINKS BEING BEFORE A JUDGE BAREFOOT IS OKAY?!

  • 121. Erica  |  June 17, 2010 at 7:25 am

    OMG you have the best point
    hahahahah they're all a bunch of b00bs

  • 122. Sarah  |  June 18, 2010 at 9:16 pm

    I noticed that Cooper, during all his talk of the "traditional form" and structure of marriage didn't mention what the true TRADITIONAL form is: one man, many women.

    Which means the LDS is full of it, and their one and only (admittedly slim) argument falls right over and dissolves into nothingness.

  • 123. If Family Feud covered th&hellip  |  June 21, 2010 at 7:32 pm

    […] the #prop8 tag. I read the Courage Campaign’s prop 8 trial tracker obsessively. They wrote 6 live-blogging posts. I read firedoglake.  I watched the AFER press conference, which you can find info […]

  • 124. Prop 8: Because I Said So&hellip  |  March 21, 2012 at 5:54 pm

    […] Maggie Gallagher apparently decided to go barefoot, and put her feet up for all to  enjoy.  The Courage Campaign reported that "The bailiff just made Maggie NOM put her bare feet down. She is so […]

Having technical problems? Visit our support page to report an issue!