Sign Up to Receive Email Action Alerts From Issa Exposed

Liveblogging Day 3: Early Morning


By Paul Hogarth

Good morning!  My name is Paul Hogarth, and I’m the Managing Editor of Beyond Chron (  I’ll be your Courage Campaign live-blogger for the trial today.  I’m in the overflow room of the Federal Building, literally the only place where you can watch it on video — thanks to the Supreme Court injunction.  We’ll hear later today if the injunction is lifted, but for now I’ll do my best to brief you all on what’s goin’ on …

[UPDATE] 8:49 The Defense’s cross-examination of History Professor Chauncey continues, and they’re asking him about how much — as a historian — public opinion on same-sex marriage has changed in recent years.  The fact that in 2000, Vermont Governor Howard Dean was denounced for supporting civil unions.  Lotsa statsitics on polling data are being thrown about.  The generational shift is noted — young people support it 4 times as much as their grandparents.

Thompson: “Spring 2004 was a decisive turning point in public opinion on gay marriage, correct?  It’s hard to think of any group whose opinion has changed more quickly, correct?”

Based on the line of questioning, they’re clearly trying to show how “radical” treating same-sex couples equally — that it’s a recent phenomenon.  It’s a bit surreal listening to it, because anyone must ask — why is quick change towards acceptance bad thing?  But the courts are an inherently conservative institution (conservative with a small “c.”)  You don’t win a case in court by arguing innovative ideas; you argue based upon precedent, so that Judges can feel safe knowing that what they’re doing is consistent.  Interestingly, however, two of the most noteworthy and landmark Court rulings — Brown v. Board of Education and Roe v. Wade — read very differently from most cases, because they rely a lot less on precedent than upon sociological data.

[UPDATE] 8:59 Thompson is now cross-examining Professor Chauncey about changing medical and psychological opinions on homosexuality.  It’s very apparent, based on his line of questioning, that Thompson is making Chauncey admit that things are just hunky dory for gays and lesbians — that we’ve “moved beyond” discrimination.  That shows like “Will and Grace” are popular, that “Philadelphia” and “Brokeback Mountain” were successful box office hits, and that gays have a “powerful ally” in House Speaker Nancy Pelosi.  I’ve been concerned by how many times that Chauncey is agreeing with the cross-examination’s line of questioning, until Thompson asked him about changing public perceptions at Yale.

Chauncey: “I would hardly call Yale a bellwether of public opinion in the United States.”

Thompson: “Thank heavens.”

[UPDATE] 9:11 Thompson says “it is true that Americans believe that homosexuals are more likely to get AIDS than heterosexuals, correct?”   Ummmh … doesn’t this kind of prove we still have a long way to go?  Again, the line of questioning — and the defense is trying to prove — that gays are a powerful lobby.

The reason he’s asking all these questions is that one of the three legal factors to determine who is a “suspect class” is whether the group is politically vulnerable.  If sexual orientation is deemed a “suspect class,” it would be a big breakthrough for us — because then any law that discriminates against them would have to pass strict scrutiny.  So far, only three state courts — California, Iowa and Connecticut — have recognized sexual orientation to be a “suspect class” and not coincidentally all three of those state supreme courts granted marriage equality for that reason.

[UPDATE] 9:17 Thank you for the comments!  I’m new at this live-blogging, and it’s hard.  It’s hard to transcribe the line of questioning, because it’s going rather quickly.  But I will take the feedback to hear about separating that from my commentary.  For those of you who don’t know me well, I used to intern for EQCA when I was in law school, graduated from Golden Gate in 2006 and have written extensive legal analysis at Beyond Chron on the issue of marriage equality.  So I hope my commentary is helpful.

[NOTE] I’ve moved on to a second thread, because this one was getting a bit long. Click here for the new post.

Tags: ,


  • 1. Rover Serton  |  January 13, 2010 at 2:09 am

    Funny how "Whites only" drinking fountains seem so wrong now and were accepted as normal reatively recenty. Perhaps, once someone notices it's discrimination, it is obviously discrimination.

  • 2. Brian  |  January 13, 2010 at 2:11 am

    Thanks for doing this, I'm pressing refresh on the browser about as often as I can manage waiting for the next update. We all appreciate your work on this blog.

  • 3. Alan E.  |  January 13, 2010 at 2:11 am

    Paul, if you get a chance to read these comments, please separate events and your commentary. It's easier to know what is actually going on as opposed to what you are thinking.

  • 4. Pender  |  January 13, 2010 at 2:13 am

    I think the proponents' strategy behind arguing that gay acceptance has come a long way very quickly is to show that we are not politically powerless and thus not a protected class entitled to heightened scrutiny, plus to make the implicit case that the courts should not step in while society is in such a rapidly-changing state but rather should wait for an equilibrium to develop.

  • 5. Brian  |  January 13, 2010 at 2:14 am

    This is a very powerful and dangerous argument.

  • 6. Vast Variety  |  January 13, 2010 at 2:21 am

    That is exactly what they are trying to show. The counter to that is of course the fact that the 31 times it has been brought to a vote on a state wide level equality has failed.

  • 7. Marlene Bomer  |  January 13, 2010 at 2:54 am

    And not just only on marriage equality too! Look at what happened in Kalamazoo, Mi last year when the bigots forced a ballot measure to repeal an ordinance banning discrimination based on sexual orientation AND gender identity!

  • 8. Pyoung  |  January 13, 2010 at 2:13 am

    Yay! Thanks for being there today, Paul. I was waiting to see what might happen on the Prop8TrialTracker. I appreciate the hard days work you have ahead of you.

  • 9. Joe Decker  |  January 13, 2010 at 2:15 am

    Thank you so much for this!

  • 10. FishyFred  |  January 13, 2010 at 2:16 am

    One of the Tweets:

    "T now positing increased fed funding to address hiv aids as evidence of increased political support for gay people"

    I'm offended that the defense thinks of HIV/AIDS as the "gay disease." What year are we in?

  • 11. Patrick Regan  |  January 13, 2010 at 2:22 am

    Paul, Your commentary is helpful. Thanks for trying to separate it though, makes it easier for us to understand what is said by you and what is said by others.


  • 12. Lymis  |  January 13, 2010 at 2:23 am

    Politically vulnerable.

    31 states have passed gay marriage bans. Only half the states have provisions protecting basic job and housing security. Anti-gay assaults are a significant component of hate crime statistics. We are the only group with a federal law in place saying that states can ignore each other about our marriages.

    One of two major political parties has keeping our non-equality as an actual party platform item.

    But Will & Grace got good ratings.

    So I guess it is a wash.

  • 13. Kyle  |  January 13, 2010 at 2:53 am

    LOL. Isn't it amazing how they spin it?

  • 14. Dwane Porter  |  January 13, 2010 at 2:24 am

    Anyone who engages in unprotected sex is opening themselves to getting AIDS. To say that homosexuals are more like to get AIDS becuase they are homosexual is bullshit expecially since current studies show that the larget group of grown AID cases are unfortunately black women.

    Would Thompson have the "balls" to say that being a black woman makes someone more like to get AIDS?

    My second thought would be – why does the possibility of contracting a disease an issue here? Should we bar people from marriage becuase they may or may not get a disease?

  • 15. Marlene Bomer  |  January 13, 2010 at 2:57 am

    In years past, Dwane, heterosexual couples were required to have a blood test to insure neither one of the parties carried a social disease for some reason or another.

  • 16. newengland  |  January 13, 2010 at 7:51 am

    That's not the reason for the blood test. Blood tests were only to show if the blood types of the individuals marrying were compatible for bearing children. Had nothing to do with social diseases.

  • 17. DebraCJ  |  January 16, 2010 at 10:25 pm

    This is a late (Jan 17) comment on newengland below–the blood test was a VDRL which tested for syphilis. It had nothing to do with blood typing or hving children.

  • 18. Jessica  |  January 13, 2010 at 2:25 am

    Thanks so much for your great coverage, Paul!

    In terms of the "politically powerful/vulnerable" issue: I've always wondered how that works with groups that are such a small minority of the population. No matter how organized and persuasive the LGBT lobby is, we're still such a tiny part of the electorate to ever have meaningful power (at least when it comes to initiatives for the popular vote), correct? Would love to hear others thoughts on this point.

  • 19. Kyle  |  January 13, 2010 at 2:55 am

    Exactly right. And then they call it "democracy at work" when the minority doesn't garner enough support from the majority. Why isn't this argument pounded home?

  • 20. Ann  |  January 13, 2010 at 2:26 am

    Paul, thank you so much for doing this. I'm sure it's very difficult. There are many of us out here, gay and straight, hanging on your words and hoping for the right outcome — equality.

  • 21. gero  |  January 13, 2010 at 2:30 am

    You are doing a great job….thanks so much.

  • 22. rpx  |  January 13, 2010 at 2:30 am

    Many thanks for doing this. It would be helpful if you would save your editorilizing until the break. A little bit now and then is okay, but less is more (until the break then tell me all you are thinking!)
    BTW I write from France.

  • 23. Jonathan  |  January 13, 2010 at 2:33 am

    Keep up the excellent work – and while I agree that some segmentation of commentary versus actual reporting is necessary, please do not curtain your analysis, since THAT, in fact, also aids in our interpretation of how the trial is proceeding.

  • 24. DonG  |  January 13, 2010 at 2:35 am

    Keep up the commentary; it's helpful to know why a question is being asked, not just what the question is.

  • 25. Brian  |  January 13, 2010 at 2:35 am

    I hope on the political powerlessness issue, we at some point discuss Frank Schubert's comments after equality was removed in Maine. He said that this was a liberaly, secular state, the Yes on 1 campaign was vastly outspent, that if a vote on equality was to prevail anywhere, it should have been there — yet he won. That is a very powerful argument for our side. As is, for that matter, Obama's comments on marriage being between a man and a woman (which the Prop 8 people have used repeatedly), and his refusal to move on DADT and DOMA.

  • 26. Micha  |  January 13, 2010 at 2:36 am

    Please put comments in [brackets] or {braces} or something. Should be easy to do on the fly, and clearly identifies reporting from opinion.
    (We do value your opinion!!! Just want a bit more clarity!)

  • 27. Chris  |  January 13, 2010 at 2:36 am

    nice job. Thompson's snarky comments seem to undermine his own purpose "Thank heavens" is just filled with vitriol — amazing that he can't control it even when it is in his clients best interest.

  • 28. Britanny  |  January 13, 2010 at 2:40 am

    You're doing just fine! Keep up the good work.

  • 29. AB  |  January 13, 2010 at 2:43 am

    Great work. Keep it up. You have support all the way from Kansas.

  • 30. Chris  |  January 13, 2010 at 2:46 am

    I'm a straight military guy from Texas and I thank you for keeping me updated. What is it with bigots not wanting transparency?

  • 31. CharlesMA  |  January 13, 2010 at 2:47 am

    Thanks for all your work! Straight ally from Boston here. I do feel it may be impossible for a court to force an unwilling nation to change (SCOTUS does not always have the final word), but if we can win hearts and mind and force people to confront their own bigotry, all the better. And I second Micha's idea–put [brackets] around your analysis.

  • 32. Meghan Stabler  |  January 13, 2010 at 2:48 am

    Awesome job Paul !! thanks !!

  • 33. Paul  |  January 13, 2010 at 2:48 am

    Agree with Patrick Regan and prx. Division of labor. There will be plenty of detailed analysis and commentary from others after the day is done. Unique to the CC blog is that it's been like a transcript of the proceedings. Nobody else is doing this. Since the YouTube isn't presently available, the CC's "transcription" is our one and only way to get a "sitting in the courtroom" experience. And . . . thanks for doing this for us.

  • 34. Tom  |  January 13, 2010 at 2:49 am

    Hey Paul – you are doing a great job. Just having someone there to give us a general idea of what is going on is better than nothing. Keep up the awesome job!

  • 35. Michael  |  January 13, 2010 at 2:51 am

    you're doing great! thank you! especially your insight and law background. brackets may be helpful, but don't cut out the commentary please!

  • 36. David B. Cruz  |  January 13, 2010 at 2:55 am

    Brown v. Board of Education cited Professor Clark's doll study and other psych studies in its controversial footnote 11, but I think it's overstatement to say it relies "a lot" less on precedent than sociology.

    And as for Roe v. Wade, it does rely on medical understandings of pregnancy, abortion, and their risks in formulating the trimester test that used to govern laws restricting abortion. Its use of "sociological data" was largely confined to disputing the supposed unbroken antiquity of abortion bans. And its reproductive liberty precedents Griswold v. Connecticut and Eisesnstadt v. Baird were very important to the analysis.

    But thanks for the descriptive blogging.

  • 37. truthspew  |  January 13, 2010 at 2:57 am

    I appreciate the live blogging which means you have a device in the court that is capable of transmitting data. I wonder too, does it have a recorder on it? Even if we only got audio feeds it would be fantastic.

  • 38. Pat  |  January 13, 2010 at 3:00 am

    Hello from South America.
    I just found your blog and I'll be following every update.
    THANK YOU for your work, Paul.
    Good luck to all!

  • 39. Rhonda Ross-Brooks  |  January 13, 2010 at 3:12 am

    Thanks, Paul, for your efforts. They are greatly appreciated! And thanks for the commentary as well. I personally find it important to understand the whys and wherefores of a particular line of questioning.

  • 40. ofstoneandice  |  January 13, 2010 at 6:02 am

    Thank you for taking up the torch on Rick's behalf! I must say that I'm profoundly grateful to you guys. I was so disappointed to learn that the decision to broadcast the trial had been challenged and put off on hold. It's a great relief to have someone there to be our eyes and ears for the time being.

  • 41. Marina Vasquez  |  January 13, 2010 at 8:13 am

    The problem with proposition 8 is that people that voted for this proposition made the most important decision that affects the life of other people and not their own. Marriage should be the decision of two people and not the decision of the public.

  • 42. SFNative  |  January 13, 2010 at 9:03 am

    This morning, the defending attorney in the Federal Prop 8 Trial argued about moving past gay discrimination, saying essentially that "You all have Brokeback Mountain and it even got awards – gay discrimination is over."

    The following is a partial list of at least 40 acts of discrimination that have occurred against LGBT people since the release of Brokeback Mountain in the Fall of 2005:

    1 – Florida school district north of Jacksonville refuses to allow Gay-Straight Alliance clubs to be formed at Yulee Middle and Yulee High schools.
    2 – Hospital employees only allowed the biological parents of a girl who stopped breathing to be with her in the ER of Long Beach Memorial, while making anti-gay comments to the two husbands who parent the girl with a lesbian couple.
    3 – Lesbian couple denied the right to be with each other in the emergency room for over an hour at a hospital in Fresno, California,even though they are legally together.
    4 – Boss stops saying hello to employee in New York state after finding out that the employee is gay.
    5 – Couple not allowed to kiss each other, no matter how innocently, on the Main Street Plaza property in Salt Lake City, Utah.
    6 – Adam Lambert's kiss with his band-member censored on television during the CBS Early Morning news show and Barbara Walter's special on ABC.
    7 – Gay couples denied the right to bury their partners in Rhode Island because it is seen as disturbing by the Rhode Island governor.
    8 – Hotel worker at the Arte Hotel in Brentwood, Tennessee, was fired after being outed by a former employee of the company.
    9 – Gay person unable to use benefits guaranteed by the Family and Medical Leave Act for a domestice partner on his own insurance in Kentucky
    10 – Gay people not allowed to donate blood.
    11 – Insurance investment employee in West Virginia fired because he is gay by tampering with his personnel record, making him look like a bad employee.
    12 – Transgender person not hired at a McDonalds in Orlando, Florida, as the manager said "We don't hire faggots."
    13 – South Florida television station WPLG fires news anchor Charles Perez for being gay
    14 – Gay people discharged from the military for coming out as gay, 11 alone in January 2009.
    15 – Gay people not allowed to adopt in Florida
    16 – Gay couples now allowed to adopt in Arkansas
    17 – Lesbian couple and kids denied family discount admission rate at The Lava Hot Springs in Idaho.
    18 – Gay couple forced to remove rainbow flag by Cambria Ocotillo Homeowners Association in Mesa, Arizona
    19 – Trans Student Ejected from Nimitz High School in Texas because of her gender expression due to "violation of male dress code."
    20 – Gay people denied dating services provided by eHarmony dating website.
    21 – TABC agents and police officers raid the Rainbow Lodge gay bar in Fort Worth, Texas and arrest numerous gay people, throwing one person down to the ground while using zip-ties to handcuff him, before he was sent to the intensive care unit at Fort Worth’s JPS Hospital with bleeding in his brain.
    22 – Police illegally targets the Eagle gay bar in Atlanta, GA, raiding the bar and forcibly searching and detaining 19 individuals, many of them eldery and wounded veterans, throwing them to the floor and harassing them simply for being in a bar having a drink.
    23 – Gay couples pay different income taxes because of the Defense of Marriage Act.
    24 – Gay people denied the right to marry in 45 states in the country, including California due to the passage of Proposition 8.
    25 – Gay people denied the right to domestic partnerships in many states.
    26 – FedEx Kinko’s filters Gay Ad Network from self-serve computers.
    27 – Corona del Mar High School in Newport Beach, CA, canceling the student production of “Rent” because of objections to gay characters in the musical.
    28 – Teen commits suicide due to being harassed for being perceived as gay at Mentor High School in Mentor, OH, endured name-calling, teasing, constant pushing and shoving and hitting in front of school officials who should have protected him.
    29 – Two gay men who kissed while inside Chico's Tacos restaurant in El Paso, TX were ejected by restaurant guards, and the ejection was endorsed by a police officer who cited a sodomy law, unaware that the law was overturned by the Lawrence v. Texas case in 2003.
    30 – Gay person has to pay taxes on the market value of the health insurance he provide to his husband
    31 – Jackson Memorial hospital in Miami, Florida, barred lesbian from seeing her dying spouse.
    32 – A sixth-grader committed suicide after relentless bullying, including anti-gay slurs at the New Leadership Charter School in Springfield, GA, while the quality of interventions by school officials remain unclear, though an suicide act so desperate by one so young is a clear reminder of how schools can become torture chambers for students perceived as different.
    33 – Professional photographer in New Mexico refused to take pictures of a gay couple's commitment ceremony.
    34 – Lesbians tossed from Seattle Mariners baseball game in Seattle, WA for kissing.
    35 – Masculine lesbian was thrown out of a West Village restaurant in New York City, NY after the city's Pride parade when she used the ladies room because the bouncer declared that she was too masculine to be in the ladies room and refused to look at her identification, ejecting her and her entire party.
    36 – Brotherhood Mutual Insurance Company, based in Fort Wayne, Ind., told West Adrian United Church of Christ in Adrian, Mich., that its denomination's gay-affirming stances made it a 'higher risk' for property and liability insurance. The company's decided to not submit a quote to the organization because the organization 'publicly endorses or practices the marriage of same-sex couples' and 'publicly endorses or practices the ordination of the homosexual clergy."
    37 – Gay couples are not allowed to legally sponsor an immigrant partner into the country.
    38 – Teachers at the Secondary Technical Education Program in the Anoka-Hennepin School District in Minnesota harassed a student for being gay, saying that the boy's 'fence swings both ways,' the student had a 'thing for older men', and the boy 'enjoys wearing women's clothes'.
    39 – A CBS News producer who was physically gay bashed was warned by the CBS News Senior Vice President not to speak out about the incident because it was controversial, and when he argued that she was violating the network's anti-discrimination policies, the VP engaged in a systematic campaign of retaliation which eventually led to his being fired.
    40 – Lesbian teen not allowed to wear a suit to her prom in Catoosa, GA.

    Moreover, in a debate of contenders for the Republican nomination for President in 2007, former Wisconsin Governor Tommy Thompson said that employees should have the right to fire workers if they are gay.

    Furthermore, it has been argued that Brokeback Mountain was subjected to discrimination itself. The movie scored a 87% Metacritic rating and won 16 best picture awards including the Golden Globes, New York FCCA and Los Angeles FCCA. However, the film lost the Best Picture Oscar award to Crash, a movie with a 69% Metacritic rating and winner of 5 best picture awards. It is widely believed that it was because Brokeback Mountain's subject matter was gay-themed and this argument is supported by reports that some members of the Academy were so opposed to the subject matter of the film that they refused to even view Brokeback Mountain before voting. Not to mention that Ang Lee's speech for winning the Best Director Oscar was censored in China.

  • 43. Patrick Regan  |  January 13, 2010 at 9:06 am

    Thank you so much for doing this. I’m not gay, I don’t live in California, but this is very important to me.

  • 44. David Dayton  |  January 13, 2010 at 5:48 am

    That's the only way equality will ever be won is to have the "not gay" join in large numbers stating or feeling that it's important to them.

  • 45. Super Colon Cleanse&hellip  |  May 11, 2011 at 11:25 am

    Get Healthy With A Colon Cleanse…

    […]just below, are some totally unrelated sites to ours, however, they are definitely worth checking out[…]…

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