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Live Updates from the Courtroom


By Rick Jacobs

It wasn’t our intention to liveblog this trial, but the unexpected ruling by Kennedy has shut off access to today’s proceedings for other bloggers. I happen to be in the overflow room and will be providing updates as best I can. This has been fascinating thus far.

[UPDATE] 9:30 The Prop. 8 side still wants to preserve objection that any evidence be put up that shows intent of those who fought to pass prop. 8 including the ads. The anti-marriage folks are continuing their theme: we want to control the media. We don’t want the public to have the info to make up their own minds.

[UPDATE] 9:46 The judge is probing extensively whether or not the problem would be solved if the state of California “got out of the marriage business.” He and Olson had a colloquy about whether domestic partnership for all would solve the problem. Olson had to have a note handed to him from his team to say that only opposite-sex couples over 62 can have domestic partnership. Judge Walker is very interested in seeing what change has occurred that should force the federal judiciary to enter the issue. He wants to know what evidence will show that makes the matter worthy of judgment. The judge is very, very smart. This is really, really fascinating. Olson is doing a great job in answering him. “What’s the evidence going to show that Prop. 8” intended to discriminate against gays and lesbians. Olson: no question that Prop. 8 intended to discriminate. We’ll put on evidence from the plaintiffs and others that show how they felt about the campaign, the sentiments that may have been used to motivate the voters.

[UPDATE] 9:52 What’s amazing here is that Ted Olson is talking about the grievous harm to gays and lesbians, that we’ll show there has been a long history of discrimination at the hands of the government and the people. What’s just amazing is that Ted Olson—read that again—Ted Olson is arguing forcefully that there is “no good reason” for Prop. 8. And there is no damage to opposite sex couples to marry. The history of the institution of marriage has evolved. Marriage laws the disadvantaged women or races or ethnicity that have been eliminated have strengthened the institution of marriage. This is Ted Olson!

[UPDATE] 10:10 Olson is just brilliant. He answered the judge’s point that marriage only existed for mere months, not a long established right, by saying that the court finally realized that the right exists within the California constitution, just as the US Supreme Court realizes that rights exist. Marbury v. Madison says, “the law is the law.”

And the judge just got to the big elephant: if Prop. 8 is unconstitutional, can DOMA be constitutional? Olson says we’ll have to work through that. This case may lead the judiciary to that conclusion, but it’s not the subject of this case. I personally (Olson) believe it’s unconstitutional!

Ted Olson on civil unions they “Inflict a badge of inequality.”

He goes on to say that Prop. 8 perpetuates discrimination for no good reason. It makes gays and lesbians inferior, lesser so they’ll be discriminated against and suffer irreparable harm.

[UPDATE] 10:14 More from Olson: When voters were encouraged to pass Prop. 8, religious institutions would be closed, gay activists would overwhelm the state and parents were told to “protect our children.” We’ll show that here.

Heterosexuals including substance abusers, convicted criminals are allowed to marry, divorce and remarry.

18000+ married same-sex couples can divorce and not remarry.

Thousands of same-sex couples married in other states are recognized here effective January 1st.

But fourth category is the plaintiffs whom we represent who have none of these rights.

Judge Walker: why shouldn’t courts stay out of this as Mr. Cooper says?

Olson: That’s why we have courts, to protect those who are discriminated against, when their children can’t go to school because of their skin color. We would not need a constitution if we left everything to the political process. We’d just let the majority prevail and that’s a good thing about democracy, but it’s not so good if you are different, new. It causes gays and lesbians unrelenting pain. We have the courts to take our worthy, upstanding citizens who are being hurt to be protected by the courts. That’s why we are here today.”

Now, turning to Terry Stewart for San Francisco.

[UPDATE] 10:16 Judge Walker wants to know the evidence that shows that CA would get $3 billion in economic benefit if we have same sex marriage. Terry Stewart said we’ll show that. And we’ll show that Prop. 8 proponents used scare tactics to show that there is a “culturally triumphant gay movement” that will harm children.

Judge Walker pushes here back to economics. Where is the evidence that denial of marriage economically injustices San Francisco.

Stewart: Hate crimes are caused by this sort of thing and that costs the state.

Judge Walker: What’s link to Prop 8?

Stewart: Prop. 8 reinforced messages that gay relationships are inferior. That message leads to hate crimes. Harms individuals and state economically because it has to prosecute those hate crimes.

This is amazing. We have tried for years to get these messages into the court of public opinion. Now, thanks to Chad Griffin and Bruce Cohen and the funders of the foundation, we have Ted Olson, Terry Stewart and a very, very smart chief federal judge asking the questions we want everyone to think about.

[UPDATE] 10:24 Terry Stewart is listing the prejudices that exist and how they negatively impact government because of the harm done to people.

Judge Walker asks the Attorney General representative: If Pro.8 violates constitutional, why did the AG allow Prop. 8 on ballot?

AG: There is no duty or responsibility for the AG to review the constitutionality or not of an initiative.

Judge: May I have a brief on this?

As lawyer, I was involved in pre-election challenge to initiatives, said Walker. Judge Walker seems incredulous that AG does not review constitutionality of props.

Judge: Did AG take a position on Prop. 8 before election?

AG; I don’t know.

– Note: Brown was opposed to 8! Everyone knows that. Why does his own staff not know that?

Judge Walker just asked for better information from the AG’s rep.

[UPDATE] 10:28 Only five states have same sex marriage and three of those had it imposed on them by judges, same way it came to California. So Cooper is going to argue strongly that the people can decide, that judges have to stay out. This is a a classic case of the role of the judiciary. Fascinating that Olson is on our side.

Cooper says, “CA has been generous” in providing rights to LG. Says that gays and lesbians have secured so many legislative victories by building a huge group of folks and groups including the newspapers, unions, corporations, hollywood, religious leaders. Gays and lesbians have enormous political power. Prop. 8 and Prop. 22 provides only a special regard for institution of marriage.

So he’s going to show that the gays are really powerful.

He quotes Obama that marriage is between and man and a woman.

Marriage has ancient and powerful religious connotations as Obama says.

[UPDATE] 10:35 Judge Walker said if obama’s parents had lived in VA, their marriage would not have been legal.

Cooper said, “race has never been a restriction” enshrined in marriage.

People in the overflow room laughed.

Judge asks how evidence will show that racial restrictions were different than LG.

Cooper: Never an issue. Marriage was always between a man and woman. IT’s all about procreation.

Judge: Is that the only reason for marriage?

Cooper: “Pro-child” institution. People laughed again.

Judge: Are the other values of marriage, such as companionship, secondary?

Cooper: Evidence will show that marriage will be de-institutionalized.

Judge: What is evidence going to show to support that?

Cooper: Our expert, Mr. Blackenhorn will show that the preponderance of historical and social leaders agree that this the naturally procreation sexual act that is protected, that it’s pro-child.

(So this guy is going down the rabbit hole. He’s attacking the very essence of the modern family, that family that has one parent, that adopts. He’s making this about whether the gays will hurt children. I think he has to lose. I really do. It’s not internally consistent.)

NOTE: This post was getting really long. A second post is now up here. Follow the continuous updates there.

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  • 1. Mary Ellen Broderick  |  January 11, 2010 at 3:24 am

    This is great to read…..finally the words unconstitutional!!!

  • 2. wesley gray  |  January 11, 2010 at 3:31 am

    Excited to hear that we are moving in the right direction..

  • 3. Eric C. Bauman  |  January 11, 2010 at 3:32 am

    Rick, you are better than YouTube! Thanks for doing this.


  • 4. tony clements  |  January 11, 2010 at 3:33 am

    fantastic. keep it up.

  • 5. nancy c  |  January 11, 2010 at 3:37 am

    This is awesome…

  • 6. Mary Ellen Broderick  |  January 11, 2010 at 3:43 am

    love the little commentary re laughing in the gallery. I am reading it and thinkning did this guy just say what i think he said re marriage all about procreation! OMG

  • 7. Chris Miller  |  January 11, 2010 at 3:51 am

    If marriage about pro-creation, then older Americans, and indivisulas that do not have the ability to procreate (either because of medical reasons or self-imposed reasons) should not be able to marry. I have been waiting for that argument!!!

  • 8. marc  |  January 11, 2010 at 5:24 am

    this blog would be much more helpful if the author would refrain from editorializing in each paragraph – such as "this is amazing!"

    i want a serious, detailed account of the trial – the opinion/exclamations are very distracting. we're all on the same side – you are lucky enough to be in the court – please just stick to the facts!

  • 9. peter paul  |  January 11, 2010 at 6:27 am

    oh thank you for doing this!

  • 10. Jack  |  January 11, 2010 at 7:01 am

    I absolutely agree with Marc. I wish the author would stop with all the editorializing. The purpose of making the court proceedings pubic is so that we can hear both sides, allowing the public, me included, make up our minds from what we see/hear. I believe that the supporters of Prop 8 are wrong on the issue, but would appreciate the effort to make the reporting as neutral as possible. The biased comments steal from the validity of the reporting.

  • 11. David  |  January 11, 2010 at 8:26 am

    RE: [UPDATE] 9:52: I'm a little confused. Why is this amazing? Isn't that what he's supposed to do? Or is opposing council using these arguments? Maybe when you get time you could give us a list of the participants and a little about each one? Thanks for doing this.

  • 12. arun  |  January 11, 2010 at 11:00 am

    Is this a commentary on Olsen's abilities or a blogging of whats happening.

    quote BEGINS
    Marbury v. Madison says, “the law is the law.”

    my response is WTF ?

  • 13. arun  |  January 11, 2010 at 11:02 am

    Of course Olsen is a brilliant guy. Thats why hes a part of such an important case.
    So, please stop reminding us.

  • 14. Ben  |  January 11, 2010 at 11:48 am

    Thank you for doing this. I would like to ask for folks at the trial to please make it clear that the "Yes on 8" people do not speak for all heterosexuals. As a straight and happily married man, I would be even happier to live in a country where gay and lesbian adults would have the same rights to marry as my wife and I have. As a man of faith, I insist that "Yes on 8" people do not have the divine monopoly on interpreting scripture. I read the same texts and understand them differently. And as a father, I am not at all concerned that the marriage of gays and lesbians would in some way inflict harm on my children. On the contrary, if gays and lesbians could marry, my children would grow up in a society with more love and less hate. And that is what it is all about. I'm waiting for the commercial featuring a white southern man who says, "What do I care if two gay men marry. It doesn't make me any less straight. Why would it make you less straight?" The homophobia in our country has to be addressed directly.

  • 15. Richard Walter (soon  |  February 7, 2010 at 12:33 pm

    Ben, your children re so privilieged to have a father like you! You are amazing!! I only wish everyone here could be there when my husband and I get married in a few months. For me, it would be the same as having my entire family there to celebrate. But since it will be such a huge schlep for most of you, tune in to my FB page for the electronic photo album to appear.

  • 16. David Kimble  |  February 7, 2010 at 12:43 pm

    "On the contrary, if gays and lesbians could marry, my children would grow up in a society with more love and less hate."
    THANK YOU, Ben, from the bottom of my gay heart – you give me hope in the future in America!

  • 17. Robert  |  January 11, 2010 at 12:19 pm

    "Cooper: Never an issue. Marriage was always between a man and woman. IT’s all about procreation."

    This is brilliant. If this is their argument, I want to see it before the Supreme Court. Because logically, *all* non-procreative marriages (involving a woman who is past menopause, where one partner is sterile, where the partners use birth control, etc.) should be invalidated.

  • 18. Felyx  |  February 7, 2010 at 12:38 pm

    Let's start with Maggie….we sure don't need any more of her type!

    (Oh damn….she's probably one of those that CAN breed.)

  • 19. Richard Walter (soon  |  February 7, 2010 at 12:42 pm

    Unfortunately, you are right, Felyx. After all, she had a child out-of-wedlock, so that point has been proven. BTW, you mentioned NC in another thread. What part of NC? Anywhere nar Fayettenam?

  • 20. Jane  |  January 11, 2010 at 1:00 pm

    They used procreation the first time they lost in court. You'd think they'd remember that — but when asked about the elderly and infertile they really did say — it would be sad, but those people shouldn't be allowed to marry either — just imagine what the pre-marriage testing would be like!

  • 21. DJ Shiva  |  January 11, 2010 at 1:39 pm

    Thank you SO much for this blog! I found it via a friend on Facebook, and I am spreading the word.

    I so wish we could watch this.

  • 22. Beth Taylor  |  January 11, 2010 at 2:16 pm

    I am a straight former Mormon and I strongly believe that marriage should be for all adults (straight, gay and lesbian). It's time for discrimination against gays and lesbians to end in this country (as well as throughout the world).

    Great blog Rick!!

  • 23. Richard Walter (soon  |  February 7, 2010 at 12:34 pm

    I for one, am so glad we have this forum. I am just now getting to catch up on the early days of the site, but I am thoroughly amazed even more by the great work and the outpouring of community here.

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