Sign Up to Receive Email Action Alerts From Issa Exposed

Day 3 Live-Blogging Wrap-Up

Trial analysis

By Paul Hogarth

It’s 4:09 p.m., and the Court has adjourned for the day.  What did we learn this afternoon?  That when faced with overwhelming evidence on the value of marriage, the stability that married couples bring, that same-sex couples are just as capable of loving each other — that the opposition will sink to start scapegoating gay men, bringing out all the worst stereotypes that we’re promiscuous and spread diseases. It doesn’t matter that they cherry-pick studies that are 25 years old, when practically no one was talking about domestic partnerships — let alone gay marriage.  If there was more proof that the motivation behind Prop 8 is animus, the defense proved that once again during their cross-examination.

From a legal standpoint, I found the fact that the defense brought up the fact that gay couples cannot “accidentally” have children is very instructive.  As I mentioned briefly in a prior post, the high Court in New York — unlike California, Connecticut or Iowa — actually upheld the state law that said marriage was between a “man and a woman.”  Because since sexual orientation has not been recognized as a “suspect class” (outside of those 3 states), laws that discriminate against gays and lesbians need only have a “rational basis” to be upheld.  And it need not be the reason why the law was enacted — any rational basis that the Court can literally dream up will do.

In New York, the Court said that because straight people might “accidentally” produce children out of wedlock, that the state had an interest in letting them get married.  Whereas gay people can’t accidentally have children out of wedlock, so there’s “less of a need” to expand marriage rights.  So although that question elicited laughter, it’s clearly the legal angle they’re going for.

Again, it proves how hard it is to repeal a law on the “rational basis” test — because the plaintiffs’ burden is to prove there is no other conceivable reason to uphold Prop 8 besides sheer animus, hatred of homosexuals.  In other words, any other reason that may be justified for Prop 8 — like “tradition,” the “rights of parents” and “protecting children” — need to be linked directly back to animus.  The burden on the plaintiff will be to argue that the “out-of-wedlock” argument is irrational.

Finally, one thing I found very interesting was how much the defense relied on circular reasoning.  Not that I wasn’t surprised — it’s the only thing they have.  One of my FAVORITE moments of Dr. Peplau’s cross-examination was her answer to the question: “do you agree one of the purposes of marriage was to avoid having children born in wedlock.”  Her answer: “Well, by definition — the term ‘wedlock’ means ‘out of marriage.'”  Similarly, gay marriage opponents always argue in Court that gay marriage should not be legal because marriage has always been a “man and woman.”  Of course, it’s been that because they’ve never allowed us to get married.

It was a pleasure doing this today.  Stay tuned for tomorrow, when Rick Jacobs will be back …



  • 1. rebecca  |  January 13, 2010 at 9:27 am

    GREAT JOB, PAUL! Thank you!!!

  • 2. Holcombe  |  January 13, 2010 at 9:41 am

    yes! great job indeed, you came up to speed VERY QUICKLY!

  • 3. RW in LGB  |  January 13, 2010 at 9:27 am

    Superb job, Paul. Thank you for the running commentary– it yielded some valuable insight into the intricacies of the trial!

  • 4. Alex  |  January 13, 2010 at 9:30 am

    Wait, did they actually say we spread disease? I didn't read that in the transcript, did I miss it?

  • 5. Loren  |  January 13, 2010 at 9:51 am

    It was in Day 3 Part IV, quoted from a video of one Dr. Tam discussing his advocacy for Prop. 8.

    Lawyer now quotes Tam saying “gay marriage will encourage kids to expeirment with the gay lifestyle — which carries with it all sorts of disease.” …"I meant sexually transmitted diseases.” Tam says it’s very easy to “find reports” online that gays have a “higher proportion” of getting AIDS and syphillis than straight people.

  • 6. Alex  |  January 13, 2010 at 9:59 am

    Thanks, but that's not entirely what I'm asking.

    I understand that part of Prop 8 was them saying we actually spread disease, which was part of the misinformation campaign. That's what they do when they want to convince a mass.

    But what Paul Hogarth is talking about is the court trial now: "when faced with overwhelming evidence… the opposition will sink to start scapegoating gay men, bringing out all the worst stereotypes that we’re promiscuous and spread diseases."

    I understand that the Prop 8 defendants in this court did bring out that we aren't as monogamous, as a reason to be against marriage, did they in this court bring out the argument that we are spreaders of disease as a reason to be against marriage?

  • 7. Steve H  |  January 13, 2010 at 11:56 am

    Which, of course, invites the response that by this standard, Lesbians, who have a much lower incidence of HIV than the general population, are "God's chosen people."

  • 8. David Kimble  |  January 13, 2010 at 10:16 am

    It's again circumvental logic – they are implying this without actually saying this.

  • 9. straightfromsacramen  |  January 13, 2010 at 9:30 am

    Ugh. I can't wait until tomorrow…

  • 10. Jeremy  |  January 13, 2010 at 9:30 am

    Also, I think someone else mentioned how bizarre the reasoning was that gay men are not as monogamous, so they should be excluded from the one institution that encourages monogamy.

  • 11. J.P.  |  January 13, 2010 at 9:37 am

    when i came out to my father, he was worried because he really wanted me to be in a long lasting relationship. then when prop 8 came around, he wanted it to pass and i did not. i asked him if he thought this would help me and other gays to be in long term committed relationships. he said no.

    It SO will help!

  • 12. Alex  |  January 13, 2010 at 9:48 am

    I wonder if him being legally recognized as being married helped him be in a long term committed relationship.

    Do you have any siblings? Does he want them to be "in long term committed relationships," or does he want them to be "married?" Or are they the same in that case?

  • 13. Tom  |  January 13, 2010 at 9:31 am

    Hey Paul – awesome job today, Inspired me to donate to keep this going since the cameras are now permanently barred. I thank you so much for your efforts, the level of detail, and your personal observations. Would love to be there but happy you guys are there to keep the information flowing. Thank you.

  • 14. Mr. HCI  |  January 13, 2010 at 9:31 am

    So men & women should be allowed to marry 'cause they might accidentally have a baby.

    And same-sex couples should be prevented from marrying . . . because they have to PLAN to have a baby.


  • 15. Renee  |  January 13, 2010 at 10:57 am

    My eyes are rolling with yours, Mr. HCI. (It all locks right in this same group's opposition to the choice of terminating pregnancies, doesn't it?) It's all just to absurd and depressing. I feel ALL of the rage I felt the day Prop 8's win was confirmed. Really, rage is what it is. Having ignorant, small-minded, compassionless bigots block my civil and human rights–there's nothing like it to get the rage in me flowing. And I am a very non-violent person. It's so weird to feel it.. Time to donate to this site and the appeal of the SCOTUS's stay (and Haiti's recovery)…

  • 16. Renee  |  January 13, 2010 at 11:08 am

    Typo correction: "It's all just TOO absurd…"

  • 17. Criss Ittermann  |  January 13, 2010 at 12:38 pm

    1) I think the idea that people should get married simply to prevent a child from being born out of wedlock to be an absurd idea coming from the same folks who think in terms of "abstinence only" — so you get married because you're horny for someone? Or are we just talking about shotgun weddings?

    2) Since when does being a woman with a woman stop one of those women from being pregnant already? Oh yeah — I guess she should have married whomever male she slept with to prevent the possible pregnancy from being "out of wedlock" (see #1).

    3) Not all lesbians believe in abortion, and lesbians are not immune to rape. While I suppose the rapist could stop and ask the victim's hand in marriage first (see #1), however I'm pretty sure that's not what's on his mind at the time.

    4) What about children born before the gay couple's marriage? Like, from a former marriage or ALREADY out of wedlock? Isn't it better for the children if their parents are married — whether or not their parents are a same-sex couple?

    5) Uh — what about adopted children's parents? Shouldn't they be married? (cf #4) Gays are adopting children — period.

    The idea that "being born out-of-wedlock" is an issue at all is already absurd, but the idea that every child that a gay couple has is planned really bugs me — even when the pregnant person happens to sleep with women.

    Marriage is NOT only for people who accidentally have children, or plan to risk having children (but not out of wedlock!). Otherwise we'd be taking fertility tests to get a marriage license, or annulling marriages if a naturally-born child is not produced within a given amount of time.

    So whether planned or accidental, there are children to protect and those children would be better served with married parents.

    Is it only me, or does anyone else here feel like we're back in the Middle Ages when kings could simply kill a wife and remarry if she didn't produce an heir?

  • 18. DC Resident  |  January 13, 2010 at 1:02 pm

    Think of it as their way of covering up for pre-marital sex that results in unplanned pregnancy.

  • 19. remix  |  January 13, 2010 at 9:31 am

    Thank you Paul!! 🙂

  • 20. Sean  |  January 13, 2010 at 9:32 am

    "The burden on the plaintiff will be to argue that the “out-of-wedlock” argument is irrational."

    Could it also be argued that, instead of the "out-of-wedlock" argument being irrational, that the "out-of-wedlock" argument is not linked to Prop 8?

  • 21. Jeremy  |  January 13, 2010 at 9:36 am

    In the other thread, Katie mentioned that sterile couples are not barred from marriage, even though they would never accidentally conceive.

    I also put forth that a court would never allow say, Jews, from being barred from public schools because they have higher literacy rates.

    It is irrational to bar a group from having a fundamental right because they are not plagued by a social vice.

  • 22. Sean  |  January 13, 2010 at 9:45 am

    No, I'm not sure if you interpreted my question properly.

    In order for a law to pass the rational basis test, it must pass two criteria:

    1. The government interest must be "legitimate."
    2. The legislation in question must be "rationally related" to the interest.

    So instead of arguing that Prop 8 is "irrational," couldn't you argue that Prop 8 is not closely related to furthering the government's interest?

    The government's interest in this case being "to prevent children from being born out of wedlock."

    My reasoning is as follows. If Prop 8 is upheld, opposite-sex couples will continue to get married, and children will not be born out of wedlock.

    However, if Prop 8 is stricken, opposite-sex couples will still continue to get married, and children will not be born out of wedlock.

    In other words, no matter the ruling on Prop 8, children will not be born out of wedlock.

    And that means that Prop 8 has nothing to do with children being born out of wedlock.

    And therefore Prop 8 would (at least in that instance) fail the rational basis test.

    My question is, is this reasoning sound?

  • 23. David Kimble  |  January 13, 2010 at 9:46 am

    Great point, Sean, but this appears to be the crux of the Prop 8 argument. I agree with you on this one, too, but it appears to be the same logic employed by the Prop 8 – circular reasoning.

  • 24. Sean  |  January 13, 2010 at 10:06 am

    Er… I'm not getting how I'm using circular reasoning there. :S

  • 25. Jim  |  January 13, 2010 at 10:45 am

    Sean – I think that's great reasoning – upholding Prop. 8 does not affect or benefit the goal of "children being born out of wedlock" unless you can prove that allowing gay marriage harms marriage between heterosexual couples. Fortunately at least the Massachusetts data does not show that gay marriage harmed straight marriage and led to more babies being born out of wedlock.

  • 26. David Kimble  |  January 14, 2010 at 12:27 am

    Sorry, I don't understand why I said that yesterday, either! But then that happens to me a lot these days! (chuckles)

  • 27. terise  |  January 13, 2010 at 9:32 am

    Thank you so much for this, Paul 🙂

  • 28. Trey  |  January 13, 2010 at 9:32 am

    Thank you for all your hard work today Paul!

  • 29. Peter  |  January 13, 2010 at 9:33 am

    Very impressed with your commentary all day – hope you will continue to lend your voice to this blog!

    I've been refreshing this at work every 10-15 minutes. So wish I could see it on video or even be there.

  • 30. Holcombe  |  January 13, 2010 at 9:42 am

    Can we be there? Would we be allowed in? Should we not organize a big trip to SF?! 🙂

  • 31. cnm  |  January 13, 2010 at 9:33 am

    Paul, your commentary was superb and I clung to my seat all day heavy on the 'Refresh' button. Thank you for your contribution, it is immensely appreciated.

  • 32. Daniel  |  January 13, 2010 at 9:34 am

    Thank you, Paul. Excellent job. I've been glued to your coverage all day.

    As to the possibility of gay people to "accidentally" conceive – perhaps the plaintiffs should have asked Dr. Peplau if an infertile, or sterilized, or post-menopausal heterosexual person can "accidentally" conceive.

  • 33. stephanie lynn  |  January 13, 2010 at 9:34 am

    The “out-of-wedlock” argument IS irrational: if same-sex couples can't legitimately get married, all of their children will necessarily be illegitimate (e.g., born out of wedlock). Sheesh.

  • 34. Mr. HCI  |  January 13, 2010 at 9:35 am

    Excellent point!

  • 35. Jeremy  |  January 13, 2010 at 9:37 am

    Yes, it comes back to the possibility of procreation as being the sole reason for marriage, ignoring the elderly or the infertile of course.

  • 36. Jason  |  January 13, 2010 at 9:34 am

    Thank you so much Paul!

  • 37. robert wright 1 of 1  |  January 13, 2010 at 9:35 am

    Please, if you blog again tomorrow, put a note at the end of the thread if it is done for the day. I've been refreshing the page on the last thread for a while, assuming that you would note that court had adjourned as the previous blogger had on days one and two. Also, could we get a little more of what is being said, rather than the summary? I had some problems because you made mention of testimony that mentioned things that were previously said, but not noted in your coverage. The Prejean stuff is part of that, you mentioned a follow up question about her, but never noted the original question…Thanks Paul, for all your work.

  • 38. Barb  |  January 13, 2010 at 9:50 am

    I concur. I was going back to the home page, thinking a new thread must be up. Let us know ###end### so we can stop refreshing and look for the next blog.

  • 39. draNgNon  |  January 13, 2010 at 2:48 pm

    I too have been looking for the Prajean reference…

  • 40. Jonathan  |  January 13, 2010 at 9:35 am

    Thank you for keeping us updated! It's very much appreciated!!

  • 41. LT  |  January 13, 2010 at 9:35 am

    Thank you!

  • 42. Steffi  |  January 13, 2010 at 9:37 am

    Love you guys for this!
    and I smiled at these arguments you were repeating here 🙂

  • 43. Shannon  |  January 13, 2010 at 9:37 am

    what about the rampant STD's among straight people???

  • 44. Tony  |  January 13, 2010 at 9:38 am

    I hope the plaintiffs return and smash the "out of wedlock" rationale. If the state has a vested interest in ensuring that children are not born out of wedlock, then why prohibit same-sex couples from being married, ensuring children of same-sex couple are all inherently born out of wedlock?

    Please, everyone keep up the good work. My heartfelt appreciation.

  • 45. Jim  |  January 13, 2010 at 10:47 am

    Good point as well. Lesbian couples' children will all be born out of wedlock.

  • 46. Benjamin Geiger  |  January 13, 2010 at 9:38 am

    If you'll forgive my picking of a nit:

    "Wedlock" is the state of being married, so marriage would (in some strange universe) be to prevent children from being born out of wedlock.

    Was this a transcription error or did the attorney and witness get it backward?

  • 47. Todd in NYC  |  January 13, 2010 at 9:38 am

    Thanks Paul, fantastic job!!!

  • 48. Nick  |  January 13, 2010 at 9:38 am

    Fantastic job Paul, and Thank you so very much!

  • 49. Urbain  |  January 13, 2010 at 9:39 am

    Paul, you've done a MAGNIFICENT job. Thank you!

    The burden on the plaintiff will be to argue that the “out-of-wedlock” argument is irrational.

    It seems to me that the "out of wedlock" argument could be made, at least for lesbians.

    Let's say a gay woman is raped as part of a hate crime against homosexuals. She becomes pregnant. Because of her Christian beliefs, she is not sure that she should have an abortion. If she and her lesbian partner were able to be married, they would be able to provide some modicum of stability to the child that was "born out of wedlock."

  • 50. Steffi  |  January 13, 2010 at 9:54 am

    let's assume a gay woman will get artificially inseminated – this child will be born out of wedlock as well, won't it?

  • 51. Kevin  |  January 13, 2010 at 11:36 am

    Nonsense. Many Christian denominations accept openly gay people. And many people would choose not to have an abortion regardless of their religious beliefs or even lack thereof.

    That said, even if she voluntarily got pregnant through artificial insemination or any other means, the fact remains that unless she was allowed to marry her lesbian partner, or was forced to marry a man she was not in love with, her child would still be born out of wedlock.

  • 52. michael  |  January 13, 2010 at 9:39 am

    The "Protect Marriage" blog is funny.

    Their headline is: "Plaintiffs Continue to Lose Ground on Day Three", after the headline from yesterday: "Second Day of Trial is Positive for Defense"

    Such smugness. Not a very attractive trait, and SO subjective.

  • 53. Bry  |  January 13, 2010 at 9:43 am

    Considering (pardon the smug on MY part) we've been dismantling everything they've thrown at us

  • 54. Matty  |  January 13, 2010 at 9:57 am

    What I think is most telling about the Protect Marriage blog is that they spoon-feed opinions to their readers (all, of course, in their favor) rather than publish the actual transcripts of the proceedings to allow the reader to form their own opinion.

    They also have turned off any commentary on their blog.

    This is classic "cult" behavior. Control the flow of information. Do not encourage accessing information outside of the group. Allow no rebuttal or negative thought.

  • 55. michael  |  January 13, 2010 at 11:16 am

    That's what religion is all about.

    Don't question. Just believe what we tell you.

  • 56. David Kimble  |  January 14, 2010 at 1:47 am

    Yeah, that is synonymous with the best way to grow mushrooms – keep 'em in the dark and feed 'em BS

  • 57. JAB  |  January 13, 2010 at 9:39 am

    Great work on this historic trial! Thanks.

  • 58. Scott Terry  |  January 13, 2010 at 9:40 am

    Hey Paul…great job you're doing….made me contribute as well. I don't know if you attended the Working Together for Equality conference in SFran last fall, but if you did, I met you there. I was showing my Prop8 art piece at that conference, and was kind of thinking about bringing it to the courthouse to display outside…if you think that would add anything to the fire. It tends to get people stirred up, so I thought I'd throw that out there. If so, just let me know and I'll figure out how to get it there….Thanks….and thanks again for your coverage of the courtroom!!

  • 59. Billie  |  January 13, 2010 at 9:41 am

    Thank you so much for everything. <3

  • 60. Bry  |  January 13, 2010 at 9:41 am

    Well if we look at their website we can see how truly delusional these people are, I'm terrified we'll still lose but I'm giddy at how phenomonally infantile our opponents appear to be. So far we've been able to refute and top everything they say and "they're" the ones in the lead? In the lead to the dump maybe. Great commentary, I've been refreshing as much as everybody else, I'm looking forward to the slaughter tomorrow

  • 61. missdk  |  January 13, 2010 at 9:59 am

    So true. And all their comments are closed. Hmmm…

  • 62. Elw  |  January 13, 2010 at 1:38 pm

    In the lead to the dump…lol!

  • 63. MJFargo  |  January 13, 2010 at 9:42 am

    You're a prince among scholars! Thank you!

  • 64. David John Lawrence  |  January 13, 2010 at 9:43 am

    I realize it's been a very long time since I had sex with a woman and even longer since I had a sex education course, but . . . I wasn't aware a heterosexual couple could "accidentally" breed. What, a jar of jam falls to the floor in the kitchen and the resulting noise scared the spermatazoa out of a male and into a female?

  • 65. Benjamin Geiger  |  January 13, 2010 at 9:48 am

    Birth control failure, primarily.

    And when birth control consists of "don't worry, baby, I'll pull out", failure is common.

  • 66. Steffi  |  January 13, 2010 at 9:51 am

    never heard of mary? and I have an aquaintant too, who got pregnent and had an examination confirming she was a virgin 😉

  • 67. Rebecca  |  January 13, 2010 at 3:46 pm

    Never heard of "Splash Conception", oh Ken of the oh-so-eloquent commentary?

  • 68. Tea Dough  |  January 13, 2010 at 9:43 am

    My gratitude goes out to you as well, Paul, for yours and the Courage Campaign's diligence in keeping our community alive and in the know with what's going on with OUR fight.

  • 69. Steven  |  January 13, 2010 at 9:44 am

    First, thanks to Paul and all of you involved in getting this information out (since creeps, crooks and our own Supremist Court wants it mostly secret! *snark*)

    "a “rational basis” to be upheld. And it need not be the reason why the law was enacted — any rational basis that the Court can literally dream up will do."

    Sigh…and that is what is so frustrating about many legal issues. When I think that "the law" will stand on the side of sanity and reason…PHWTTTT! Nope.

  • 70. Jim  |  January 13, 2010 at 10:50 am

    I don't get it so all they need is some quasi-rational basis? If the populace votes in an unconstitutional law, the courts can't overrule it?

  • 71. Steffi  |  January 13, 2010 at 9:46 am

    this reads as if the yes on8 guys are getting afraid and thus complain about everything that didn't went well for them as injustice 😀

    and btw. on the children out of marriage question. the possibility of artificial insemination would increase the nr. of children out of marriages, wouldn't it? cause lesbian couples who wanna get a child will have to bear it outside of a marriage since they can't marry….

  • 72. Andrew  |  January 13, 2010 at 9:47 am

    Thank you so much for blogging today. It was most appreciated. Your comments and insights were very helpful and I hope you keep adding them as the trial goes on.

  • 73. Rob  |  January 13, 2010 at 9:51 am

    This is fascinating stuff and I'm learning a lot from this. Thanks so much for doing this blog!

  • 74. Brad  |  January 13, 2010 at 9:52 am

    Thank you, Paul, for your phenomenal work. The Supremes threw a curve, and you hit a home run.

  • 75. Ronnie  |  January 13, 2010 at 9:53 am

    I have been on the edge of my bed all day. I live in NJ and you would not imagine the things I had to read on the MB. Several of my screen names have been banned. lol. The whole accidental pregnancy defense is hilarious. And the fact the the judge already seems annoyed by this moss character is great. You are doing a really good job. i Have been reading it to my mother all day and she never graduated high school but understands everything that you are saying. For her and myself I thank you so much.

  • 76. lightandstorm  |  January 13, 2010 at 9:55 am

    "In New York, the Court said that because straight people might “accidentally” produce children out of wedlock, that the state had an interest in letting them get married. Whereas gay people can’t accidentally have children out of wedlock, so there’s “less of a need” to expand marriage rights. So although that question elicited laughter, it’s clearly the legal angle they’re going for."

    Then follow up with the argument that gay couples will necessarily have to either adopt (helping the out of wedlock and orphaned children of the world) or get a surrogate/donor. The possibility of lessening the number of kids in the foster care system is a definite good thing in society's interest. Surely a being with a stable gay couple is better than going from home to home forever.

  • 77. Jim  |  January 13, 2010 at 10:39 am

    The New York court argument of "less of a need" is weak. What about all the other factors and functions of marriage?

  • 78. Andy W  |  January 13, 2010 at 9:57 am

    Paul, Thanks for the running commentary, it helps me understand that what I know to be right isn't as easy to prove in a court of law.

  • 79. Billy  |  January 13, 2010 at 10:00 am

    pardon my ignorance of process and limited knowledge of the meanings of all these terms, but is there a way that through this trial homosexuality may be deemed a suspect classification and avoid the need to meet rational basis?

  • 80. Sean  |  January 13, 2010 at 10:04 am

    Logically, I think you should at least be able to get a quasi-suspect class for homosexuals, seeing as homosexuality is based on sex.

    Prop 8 necessarily classifies people according to sex. In order to see whether it's legal to marry a man, you need to see what the other person's sex is. That's a sex-based classification, and sex-based classifications are already subjected to intermediate scrutiny.

    However, I don't think courts have recognized laws that use a homosexual classification as a quasi-suspect class. And I don't think Olson et al. are shooting for that angle anyway.

  • 81. Ronnie  |  January 13, 2010 at 12:31 pm

    At least we have class trailer trash!

    You're the one that needs help, its called anger management troglodyte or dose your kind only do jerry springer.

  • 82. Rebecca  |  January 13, 2010 at 3:50 pm

    Once again hammering away at us with your rapier wit, Ken. Way to respond with intelligent debate.

  • 83. Dan  |  January 13, 2010 at 11:10 am

    Yes, the plaintiffs are arguing that gays are a suspect class. There is a four-part test to determine whether or not a group of people should be deemed a suspect class:

    (1) whether the group has been discriminated against historically (proponents are not disputing this)

    (2) whether the group's defining characteristic bears any relationship to their ability to contribute to society (proponents are not disputing that whether you are gay bears no relationship to your ability to contribute to society)

    (3) whether the trait is "immutable" (i.e., can you change the fact that you're gay — this IS being disputed)

    (4) whether the group is politically powerful or not (also being disputed)

    So, whether gays are a suspect class will turn on whether or not the court thinks that gays can choose to be gay, and whether he thinks they (we?) have political power.

    This is, of course, an oversimplification. For example, the California Supreme Court said that it didn't matter whether being gay was "immutable," because it would be unfair to ask people to change their identity so drastically even if they could. Also, some cases say that political power is either a lesser factor or not one at all.

  • 84. Dan  |  January 13, 2010 at 11:24 am

    Just to add — if you're interested, you can read more about gays as a suspect class on pages 95-100 of the California Supreme Court's ruling in In Re Marriage Cases (which is here:…. Start with, "Having concluded …."

    In terms of the four factors I mentioned, I thought the second might be a bit unclear. An example of a group of people whose defining characteristic DOES affect whether their ability to contribute to society is the mentally retarded. (Or so the US Supreme Court said in this case:…. ) There are "real and undeniable differences between the retarded and others," according to this Court, and therefore it makes sense to have laws that treat them differently.

  • 85. David Kimble  |  January 14, 2010 at 1:55 am

    Thanks Dan, for a very positive addition to this! Kudos!

  • 86. Russ  |  January 13, 2010 at 10:01 am

    Thanks so much for today. I really appreciate you taking the time to document what you heard and saw and to include your prespective.

  • 87. David (San Diego)  |  January 13, 2010 at 10:05 am

    I am a licensed child psychotherapist and sometimes wish I could be called to testify in this case when the question of the effects upon children arises. I sincerely hope someone points out that heterosexual parents are significantly more likely to sexually or physically abuse a child than gay parents. This research certainly exists.

    p.s., in case a decision maker reads this, I am at Rady Children's Hospital in San Diego and I have provided expert testimony for the dependency court here.

  • 88. Jason  |  January 13, 2010 at 10:06 am

    I find it very funny that the Protect Marriage Blog has closed it's comments.

  • 89. Bonobo  |  January 13, 2010 at 10:49 am

    No Jason. You can't close something that was never opened.

  • 90. Robert a.  |  January 13, 2010 at 10:07 am

    I don't deserve my paycheck this week because I've gotten nothing done – too riveted to the refresh button. NonetheIess, I want to add my thanks to Paul for his work today. I really appreciate the legal insight and analysis. Everything I've read gives me hope and your insight helps me temper that.

  • 91. GP  |  January 13, 2010 at 10:11 am

    Great Job Mr. Hogarth! It was nice of you to blog of all of us who can't be in the courtroom today (or any other day). And thank you for your legal commentary and analysis. I really do hope that Judge Walker gets the ball rolling and rules sexual orientation as a suspect classificiation.

  • 92. Josh  |  January 13, 2010 at 10:12 am

    Thank you Paul. Fantastic work!!!!

  • 93. jc  |  January 13, 2010 at 10:15 am

    re: #35….this is why I find the lack of video coverage of this trial so disturbing, the fact that the other side can spin things the way they are doing. Yesterday they came out and, if I recall correctly, told reporters how things were going their way. If everyone could view precedings for themselves the truth would be unequivocal.

  • 94. jc  |  January 13, 2010 at 10:18 am

    proceedings, don't know where precedings came from! lol!

  • 95. Jim  |  January 13, 2010 at 10:34 am

    Yes clearly the Prop. 8 side is losing badly. It has taken a ton of punches.

  • 96. Ronnie  |  January 13, 2010 at 11:46 am

    It seems ken hubert has a little pent up homosexual tendency's. Looks like Barbie left him for her very own mo.
    Don't worry ken I'm sure there's a cure for whole not being anatomically correct thing. It's called grow a pair bobble head.

  • 97. Rebecca  |  January 13, 2010 at 3:54 pm

    Well, Ken, if you were literate, which you are demonstrably not, you could read the trial transcripts which obviously show the defense's absurdly weak case.

  • 98. jc  |  January 13, 2010 at 11:08 am

    when i originally posted this,number 35 was 'bry's post stating:

    "Well if we look at their website we can see how truly delusional these people are, I’m terrified we’ll still lose but I’m giddy at how phenomonally infantile our opponents appear to be. So far we’ve been able to refute and top everything they say and “they’re” the ones in the lead? In the lead to the dump maybe. Great commentary, I’ve been refreshing as much as everybody else, I’m looking forward to the slaughter tomorrow"…

    just wanted to clarify since it looks like the posts have moved around for some reason….

  • 99. jc  |  January 13, 2010 at 10:16 am

    My apologies, I forgot to add that I am immensely grateful we have this format to know what's going on, rather than relying on what is being said afterwards! Thank you all for your hard work and dedication!

  • 100. Patrick  |  January 13, 2010 at 10:27 am

    My partner, FTM, and I had twin boys born last august, 2009, and while not entirely by accident, it certainly could happen in our relationship. He is legally male, and thus we like all other gay couples, are barred from marriage. Our three children (one adopted toddler, and the newborn twins) do not have the benefit of married parents. My partner is not covered on my insurance as we cannot marry. While I would agree our situation is less common than the average gay male couple, we suffer the same discrimination. And yes, there ARE some gay couples who can have "accidental" pregnancies resulting from their monogamous relationship! It is ignorant to believe that despite the wide variety of life found in nature, all human relationships would look and function in the same way.

  • 101. Query  |  January 13, 2010 at 10:28 am

    Does anyone know if there are any protests happening outside of the courtroom or in DC?

  • 102. jc  |  January 13, 2010 at 11:25 am

    what a big man you are ken hubert.

    seems there's a trailer park missing it's idiot…

  • 103. mike finn  |  January 13, 2010 at 10:29 am

    How can anyone assert that here is still racism in this country when a show like Good Times was on T.V. or Guess Who's Coming to Dinner was released in theaters?

  • 104. MrsMorty  |  January 13, 2010 at 10:29 am

    Fantastic job, Paul. Thank you for stepping in! Now go rest those typing fingers. 🙂

  • 105. Jim  |  January 13, 2010 at 10:32 am

    Thanks very much for this site and your work. Being a California resident Prop. 8 has affected me to the point that I almost don't want to live in this state anymore even though my family is here. I feel rejected by my own society – and I moved here from Massachusetts thinking that I was moving to an open and liberal state.

    This is clearly the most important civil rights issue of our times. The dialogue that is going on right now and the issues being discussed have needed to be discussed and addressed by our institutions for a long time. It is a travesty that this is not being broadcast in some format. I wish all could see this and start to form their own opinion.

    I am worried about the Supreme Court decision pressed by right-wing Prop 8 advocates to keep this trial in the dark. It is going to be a hard fight and I hope this game isn't rigged by conservative influences to begin with. Either way I hope the side of right will prevail and I will no longer be a second class citizen in the United States of America.

    God bless.

  • 106. Jim  |  January 13, 2010 at 10:55 am

    I'm sorry you have so much hatred. Gays are everywhere, even in Indiana or wherever you're from. God bless.

  • 107. Renee  |  January 13, 2010 at 11:06 am

    Okay, now go back to your cave, Ken Hubert.

  • 108. Nicole A  |  January 13, 2010 at 11:09 am

    Jim, unless you are married to your same sex significant other, you are in 3rd class/Steerage, my friend. Thanks to Prop 8, 2nd Class is reserved for the 18,000+ couples who married during the window last year. We now have 3 classes of citizens here in California. It breaks my heart and makes me want to move Mass too! Shame on the people of California.

  • 109. Ronnie  |  January 13, 2010 at 11:30 am

    oh ken hubert you are just as simple as your name. Gods opinion doesn't hold up in a court of law. well because she's on tour with Cher, for the millionth time. In in her eyes you will always be the person who threatened to beat someone with a bat. Not exactly something Jesus would do. See you in hell buddy, make sure to pack SPF infinity thumper.

  • 110. Ronnie  |  January 13, 2010 at 11:18 am

    Don't mention "god" to me, you don't know him or you wouldn't be threatening to beat someone with a baseball bat!

  • 111. Jim  |  January 13, 2010 at 11:33 am

    1 Peter 4:8-10 (New King James Version)
    8 And above all things have fervent love for one another, for "love will cover a multitude of sins." 9 Be hospitable to one another without grumbling. 10 As each one has received a gift, minister it to one another, as good stewards of the manifold grace of God.

  • 112. Renee  |  January 13, 2010 at 11:45 am

    No, really, go back to your cave. And once you're there, get back under a rock–and you stay there. Alternatively, Ken Hubert, read a history book. Or a sociology book. Or actually meet a gay person. You could start with the one or two that are undoubtedly in your family, or live down the street, or who work with you. Your choice: Pathetic and stupid OR educated and humane.

  • 113. Dave Babler  |  January 13, 2010 at 12:33 pm

    Since the mods are being so slow to approve posts…. I'm going to take the links out of my lower post but copy the text…I hope they get around to moderating soon so my message to this troll gets him the help he needs.

    You’re a troll.
    Here’s why.
    1. Bombastic personal attacks against a community as opposed to – reasoned, lucid, well thought out dissent.
    2. Your obvious emotion and frustration is showing through your posts.
    3. You come here and arrogantly think you can start a conversation and get it to revolve around yourself.
    I suggest you seek psychiatric help, if you do not have health insurance there here are 2 websites to help you find free Mental Health Care in Indiana (I assume that’s where you are from)

    —websites removed because moderators are not "on the ball" here.—

    If not, simply google “Free Mentalh Health Care” followed by whatever state you live in.
    Best of luck to you, get well soon.

  • 114. Rebecca  |  January 13, 2010 at 3:57 pm

    Look around, Ken. You're the "freak" on this turf.

  • 115. Nicole A  |  January 13, 2010 at 11:01 am

    Great job, Paul. Your insights were incredibly helpful. Can we look forward to your Comments on Rick's blogging tomorrow? I hope so.

  • 116. Eden w/ the Courage  |  January 13, 2010 at 6:00 pm

    Yes, you will! Paul will be back with us every day for most of the rest of the trial, providing analysis, especially on legal issues.

    See you all in the morning, trial trackers!

  • 117. Shun  |  January 13, 2010 at 11:04 am

    Great job!
    It's absolutely absurd that we cannot watch this on Youtube, but thankfully we have people like you to keep us up-to-date on what is going on.

    Being a Chinese American that grew up in SF, I am very offended and hurt by what William Tam did. When my own mom told me that she would vote yes for prop 8 for fear of gay marriage being taught to my niece, I was horrified (though I am not out to her yet unfortunately). I now realize that Mr. Tam may have been responsible for brainwashing her, since he appears on programs that my mom probably watched.

    This trial has been very educational and motivational for me. I now know what kind of ppl exist in my own community, and also learned a lot about the history of gay rights and the challenges we may face in the future. I hope that I can contribute, in a way I not know how yet, so that we can finally enjoy the rights we deserve.

  • 118. Dave Babler  |  January 13, 2010 at 11:26 am

    Thanks for keeping us updated; I'm annoyed and offended we cannot watch this on the internet, and am grateful for the service you are providing.

  • 119. Ronnie  |  January 13, 2010 at 11:55 am

    No ken that would be the job of your priests such as father grabby hands!

  • 120. judy west  |  January 13, 2010 at 11:44 am

    Thanks thanks and Thanks for the great job!

  • 121. Shun  |  January 13, 2010 at 11:51 am


  • 122. Frederick Kahrs  |  January 13, 2010 at 11:51 am

    “Well, by definition — the term ‘wedlock’ means ‘out of marriage.’”
    Actually this is incorrect… Were you misquoting or had she got it wrong? Here is the definition of wedlock (I think you or she meant, "Out of wedlock".)
    Main Entry: wed·lock
    Pronunciation: ˈwed-ˌläk
    Function: noun
    Etymology: Middle English wedlok, from Old English wedlāc marriage bond, from wedd pledge + -lāc, suffix denoting activity
    Date: 13th century
    : the state of being married : marriage, matrimony

    — out of wedlock : with the natural parents not legally married to each other

  • 123. Ronnie  |  January 13, 2010 at 11:52 am

    That was so funny I choked on your rosary.

    Actually what is funny is that you are the one that wants to beat people with a bat while calling someone a mental defect. Don't you have a triple k meeting at walmart to go too. Don't forget your full zip white hoodie. I hear its cold isle out house cleaner.

  • 124. Renee  |  January 13, 2010 at 11:52 am

    Hey everyone, could Ken Hubert be any more of poster child of ignorace and bigotry (and the violence that goes with those charming traits)? High-larry-us.

  • 125. Ronnie  |  January 13, 2010 at 11:53 am

    Yeah its with you miley cyrus and her stripper pole sprogenwaggon

  • 126. Tony Douglass in Ca  |  January 13, 2010 at 11:56 am

    Excellent coverage, can't get enough!!

    It still dumbfounds me that religious whack jobs can fund legislation, pushing their beliefs on to other people, and it passes and becomes law!!

    I hope the courts can see past their circular reasoning, and see the bigotry and hatred behind it.

    Religion has no business in government, stay out!!

  • 127. Miss V  |  January 13, 2010 at 12:11 pm

    Wait a minute. So heterosexuals alone should have the right to marry because they don't treat marriage as a sacred institution — they have premarital sex (and hence might slip up and get pregnant). They don't care enough about the bonds of family to get married before they start one, and that's why marriage — the basis of that family — should be reserved only for them.

    Ladies and gentlemen, we are down the rabbit hole.

  • 128. Kate  |  January 13, 2010 at 12:26 pm

    …as far as couples who "might accidentally get pregnant" go, it's not like they STAY married. don't all those couples getting knocked up, married and divorced increase the divorce rate more than anything else?

    and why do we care about the effing divorce rate so much anyways?

  • 129. Dave Babler  |  January 13, 2010 at 12:35 pm

    Please see my post above; I do think you need mental help.

    Everyone, starting "now" ignore this troll.

  • 130. D Albert  |  January 13, 2010 at 12:51 pm

    Is there a way to flag postings? I'm not bothered when people disagree with me or even think I'm a horrible person for being gay; however, I do have a problem when they say they want to physically hurt me. I do not take kindly to threats, such as the one by Ken Hubert, "[P]lease protest close to me. [M]y baseball bat needs some exercise." Then again…maybe we should leave it up. Many of us have been dealing with these sort of comments for years. It might do us some good for others who are indifferent to see it.

  • 131. Renee  |  January 13, 2010 at 12:57 pm

    Well, if the prosecution taps into this blog, they'll be able to use the rantings and threats of the notorious Mr. Hubert as futher evidence that homosexuals are obviously a "suspect class."

  • 132. Ronnie  |  January 13, 2010 at 1:19 pm

    I have been dealing with way worse then him here in jersey since that circus passed though. People actually threatened to kill me, hang me, burn me on a cross. How they can do that based on an anonymous message board is beyond me but I was threatened none the less. At least I really got to stretch my comedic What sucks is that those comments like that got deleted, so when I talked to the police they said there was nothing they could do since it is a public MB unless they send a threatening to my private email. However if they don't get deleted from this site there might be a way to report a hate crime or at least have evidence that somebody is threatening people.

    Something to think about before posting…..yeah?

  • 133. jc  |  January 13, 2010 at 1:01 pm

    thought that up all on your own, did you?

  • 134. Grace  |  January 13, 2010 at 1:19 pm

    Thank you Paul for your coverage of this trial in Rick's absence. I'm glad to hear you both will be continuing to cover the trial- the more information available to the public about the actual material covered in the trial, the better. It's painful to remember just how many hateful, damaging stereotypes and myths are out there. However, it's really important for America to face its prejudices, instead of brushing them under the rug as a minor issue. The coverage by this blog did inspire me to donate, and as a rather poor college student it's not very often that I part willingly with my money. I look forward to both your contributions of your eyes, ears, and insights as the trial continues.

  • 135. Jeannette  |  January 13, 2010 at 1:19 pm

    Thanks Paul. Amazing work.
    I felt as if I was there.
    You'll never know how much it was appreciated.

  • 136. Rebecca  |  January 13, 2010 at 4:06 pm

    Community, I just want to say how very thrilled I am to be a part of you, and how very proud I am at how smart, passionate, and generally decent you are!

    Thanks so much to our diligent livebloggers!

  • 137. Amanda  |  January 14, 2010 at 12:31 am

    As a member of al marriage that is not legally recognized, I find this very upsetting:

    …gay people can’t accidentally have children out of wedlock, so there’s “less of a need” to expand marriage rights. So although that question elicited laughter, it’s clearly the legal angle they’re going for.

    I personally feel that marriage is the foundation of any family, and wouldn't consider having children without being married (we did it WITHOUT government recognition, because we live in MI) which is what made me finally decide to pop the question.

    Yes, there is a deliberateness to starting a family in a same sex relationship that is not required in an opposite-sex one, but the prohibition still leaves the children of gay parents illegitimate. And I still have to decide between moving somewhere that will give me and my child rights and legitimacy before my partner gets pregnant and delivers, or (more desirably) letting her have the comfort of her mother, sister, and years-long friends during her first pregnancy and delivery.

    It's the difference between immediate and hassle-free protection, and a long, expensive legal proceeding. It's also the difference between a young couple not having any support and a web of loved ones to help guide us through the most life-changing event that is likely to ever happen to us. How can this not be discrimination?

  • 138. Miss V  |  January 14, 2010 at 1:43 am

    Excellent points, Amanda, and it goes back to the point that Hogarth was making about the defense's argument being circular. Basically what the argument comes down to is this: We need marriage as an option for heterosexuals, because they might accidentally have a kid and they should be able to have that kid in wedlock. Gays can't "accidentally" have kids, so we don't feel we need to extend marriage rights for the same reason. So no gay marriage. But gays do have children — it's a fact. Therefore, since there is no gay marriage, any children gays do decide to have will, by necessity, be raised out of wedlock, thus completely undermining the point that's the basis for their entire argument — that it's desirable from the state's perspective to see all children born and raised in wedlock. It's kind of circular, except that when you complete the circle, the argument actually nullifies itself.

    The only other option we can assume the defense meant to give to homosexuals under this is not to have children at all. And that's definitely not on trial here. And it sounds dangerously close to animus to me.

  • 139. M Berry  |  January 14, 2010 at 12:35 am

    Thank you for the fantastic coverage of the trial. The legal analysis/interpretation is extremely helpful.

    Thank you to the Courage Campaign for making this blog happen.

    I watched the interview w/ Ted Olson and David Boies on Rachel Maddow and cried my eyes out. If you haven't watched it yet, I highly recommend it.

  • 140. Olivier  |  January 14, 2010 at 12:46 am

    I'm having a hard time getting their arguments to line up. They say Gay marriage shouldn't be allowed bc they don't want to be forced to teach their kids about gay marriage before sex ed comes around. That in itself doesn't make any sense to me. Secondly, they are now saying that states have an interest in heterosexuals getting married because they might accidentally reproduce, aren't we now talking about a need to discuss sex ed, but this time bc of irresponsible straight people? Thoughts?

  • 141. Scott Terry  |  January 14, 2010 at 12:56 am

    Their arguments will never line up. That's a funny little detail to religious mentality…..things don't actually have to make sense. The real battle here is not between bigots and gays. It's between religious bigots and people of free mind.

  • 142. MikeB  |  January 14, 2010 at 1:44 am

    Hey –

    Hope you don't mind some counter argument here:

    1. My guess is that the Protect Marriage blog turned off comments because people here were relentless in commenting there. Generally, conservative blogs have fewer commenter than liberal blogs (e.g., DKos vs. RedState or FreeRepublic)

    2. The "accidental pregnancy" argument -silly as it might seem- is necessary to establish why heteros who do not intend to have children (or who have been considered sterile) are still eligible to get married under a marriage=procreation standard.

    You'll likely hear that post-menopausal women can accidentally get pregnant. And, to counter the elderly couple counterarguments to the procreation standard, that non-breeding heteros serve as a public example (in what has already been testified to by plaintiffs as a public institution) of the only coupling that leads to the ideal biological family unit.

    If it makes you feel better to post over and over again about the seemingly silliness of the accidental pregnancy argument, go for it. Frankly, repetitious posts make for very boring reading.

  • 143. This Afternoon Testimony:&hellip  |  January 14, 2010 at 6:54 pm

    […] cross-examination didn’t really push legal theories like they did yesterday — e.g., asking Dr. Peplau if gay people don’t “accidentally have kids.”  What they sought to do today with Dr. Meyer was to impeach his credibility by questioning the […]

  • 144. tires rack&hellip  |  May 11, 2011 at 3:55 pm

    Blog Browser…

    […]while the sites we link to below are completely unrelated to ours, we think they are worth a read, so have a look[…]…

  • 145. Tegaderm&hellip  |  May 11, 2011 at 5:18 pm

    tegaderm corporantion…

    […]Honestly this is a great site worth poining a link at […]…

  • 146. James Long&hellip  |  September 3, 2011 at 12:18 pm

    Free Movies…

    […]while the sites we link to below are completely unrelated to ours, we think they are worth a read, so have a look[…]…

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