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Liveblogging Day 3: Thoughts on My Lunch Break

Trial analysis

By Paul Hogarth

The Court is now on lunch break — having concluded the testimony of Professor Chauncey.  I had a tough time doing a rough transcript earlier in the morning, injecting my opinions and legal analysis along the way.  But I think such commentary is more appropriate during these intermissions — so I can focus more on transcribing what’s being said.  Now that we’re on break, here are my thoughts.

Dr. Tam’s video was critical in showing how an irrational fear of gays motivated at least some supporters of Prop 8.  Kids growing up with gay parents isn’t going to change whether or not we have gay marriage — so the bigots who want to take away our rights to marry aren’t just against that — they simply don’t want us to exist.  I don’t see how we can’t prove that hate was at least A reason.

Meanwhile, the defense tried this morning to prove that Prop 8 was motivated by other reasons.  They don’t “dislike” gays — they just believe in the “tradition” of marriage, “protecting” the children, or allowing parents the freedom to choose how they want to raise their kids.  Just because there are bigots out there, they said, there was still a rational basis for why Prop 8 passed.

The reason that’s effective is because the federal courts — at least not yet — have not found sexual orientation to be a “suspect class,” so laws that discriminate against them are okay as long as some rational basis can be found to justify it.  (If gays are a “suspect class,” then the burden is on the law to prove it was passed for a compelling reason that was narrowly tailored through the least restrictive means.)  But Romer v. Evans (1996) showed when the US Supreme Court overruled an anti-gay ballot measure in Colorado, IRRATIONAL BASIS (i.e., bigotry) is not acceptable — even though gays are not a “suspect class.”

I’m not sure, however (and I’ll have to re-read the case) if Romer explicitly said that animus alone could not invalidate an anti-gay law.  If so, you also have to prove that there was no other possible justification for passing Prop 8 besides bigotry.  Therefore, the plaintiffs also must prove not only that Prop 8 was passed by bigots — but that there simply was no other reason to pass it.  The most effective way to do that is to link the other reasons cited back to bigotry.  That’s what the plaintiff side did this morning.

One of the most persuasive moments (in my opinion) was when Chauncey said segregationists and those who opposed interracial marriage truly and honestly believed they were upholding “tradition.”  This was effective because it means the “tradition of defining marriage” simply comes back to a hostility against gays and lesbians.  I hope the plaintiff side elaborates on this point further.  We can certainly prove that bigotry motivated Prop 8.  But we also should prove that the other reasons being cited — “tradition” — really come back to irrational bigotry in some other form.

Chauncey’s rebuttal to the “gay marriage will be taught in public schools” line that — “do we object to teaching interracial marriage” — also nicely fell into that line.  When Prop 8 supporters talk about parents having the right to raise their children, and “protecting” them, it really is based on an irrational fear of homosexuals — that leads back to the bigotry argument.

As for the Judge, he was far less engaged today than he was in prior days — and quite deferential, I would say, about admitting evidence.  But it’s clear he was not willing to keep going with the Dr. Tam testimony (viewing it as tangential), and the evidence was already overwhelming.  Again, to prevail I believe the plaintiffs will have to link the reasons cited for passing Prop 8 — “tradition” or “protecting children” — is simply a subterfuge for the real beliefs that homosexuality is “wrong” and “sinful.”

UPDATE: Justice Kennedy’s opinion in Romer v. Evans: [The Colorado anti-gay amendment’s] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests [my emphasis].  Unfortunately, the Supreme Court is likely to interpret this as saying that just because you prove animus factored into Prop 8 does not make it unconstitutional.  You also need to prove that there were no other reasons besides animus.  In other words, we would need to link the other possible reasons — tradition, protecting children, parental rights — back to an irrational basis.



  • 1. Alec  |  January 13, 2010 at 6:03 am

    "Any additional order permitting broadcast of the proceedings is also stayed pending further order of this court," the court said.

    "To permit further consideration in this court, this order will remain in effect until Wednesday, January 13, 2010, at 4:00 pm eastern time (2100 GMT)," it said.

    Does this mean they can start posting the videos? Since it's already 4pm eastern time? Will the court comment on this after lunch?

  • 2. Patrick Regan  |  January 13, 2010 at 6:08 am

    Oh I hope so. I want this stuff posted!

  • 3. Steffi  |  January 13, 2010 at 6:34 am


  • 4. kristin  |  January 13, 2010 at 6:55 am

    High court rules no cameras.

  • 5. Patrick Regan  |  January 13, 2010 at 6:07 am

    thank you for your commentary. It helps us, who are not legal fluent to understand what's going on.

    Keep up the great work.

  • 6. Query  |  January 13, 2010 at 6:10 am

    I guess I'm not sure why we're arguing "sin" at all. To me, when we concur that being gay is a sin, we just give the opposition's bible more power than it needs to have in any court room!

  • 7. James Sweet  |  January 13, 2010 at 6:17 am

    While the "sin" issue should indeed be irrelevant (and not just on this issue, but on any governmental issue, or really any issue in any person's life if you ask me), I think that from a tactical perspective it is a positive thing for religions to come out with a pro-LGBT stance (even if their holy book directly contradicts their tolerant position)

  • 8. Steffi  |  January 13, 2010 at 6:40 am

    It in fact doesn't! as I keep saying. there's this great website arguing very very good on that and very convincing and it took away ALL doubts I had about being christian. I especially like Matthew 19:11+12 since these are Jesus' own words that in case of born gays the "a man must marry a woman" saying doesn't apply! and being CHRISTian it matters most what jesus CHRIST said even though all these seemingly anti gay arguments are quite well being refuted as actually being anti-gay.
    I was so totally blessed by reading it!

  • 9. James Sweet  |  January 13, 2010 at 6:46 am

    Yes yes, I have heard all of these arguments before. Read the blog post I linked to in my previous comment. Some of these arguments are interesting, and if it helps people to reconcile their faith with their or a family member's sexuality, that's definitely a good thing, far be it from me to poke holes in it… but I for one ain't buyin' it.

  • 10. Steffi  |  January 13, 2010 at 6:53 am

    well in that case one could still argue that
    1. we are told that we do not have the wits to understand gods doings
    2. we are not to judge anyone else but look at our own faults (esp. since we are likely to get god meanings wrong anyway and that it is his business to care for mankind not ours)
    3 loving your neighbour is the ONE command by which one can see who is jesus' disciple.

    for that and many other things christians can't really reasonably argue against tolerance and equity towards gays

  • 11. James Sweet  |  January 13, 2010 at 7:01 am

    I won't sully this supportive forum by pushing hard on a contentious issue. I will just end by pointing out that you said, "we are told that we do not have the wits to understand gods doings", and yet it is also true that many Christians have come to a different conclusion than you. How can that be? Well, clearly both of you are using your wits to try and "understand gods doings"… Seems to me the better thing is to cut out the middleman and just use your wits to determine what is right and wrong in the first place… Just sayin'.

    But, in the interest of peace, I'll end with: I applaud you trying to convince people that Christianity and homosexuality are compatible. Regardless of what I think the truth of the matter is, in the short term the more people who believe what you are saying, the better our country will be. Peace! 🙂

  • 12. Melinda  |  January 15, 2010 at 12:53 am

    James, I read and understand your blog posts about religion and your desire to disentangle yourself from it. I come from the other side — I felt like the Church stole God away from me. Whereas you look at "liberal" Christian interpretations of scripture and see apologetics, my experience has been one of coming to read, listen to, and "understand" scripture from within a historical context… and to read individual passages or stories within the overarching context of scripture itself. And guess what? I consider Leviticus to be scripture. It is true insofar as it is a record of how the Hebrew people believed they were supposed to live in order to be "right with God". At the same time, I believe that God made me who I am — a lesbian woman who despite desperate collegiate attempts has never been able to bring herself to even kiss a guy. Call me an oxymoron if you want, but that doesn't change the fact that I am both a Christian and a lesbian.

  • 13. Dave in Northridge  |  January 13, 2010 at 6:13 am

    Excellent analysis, Paul, and I hope that seed ("tradition" is a smokescreen for animus) has been planted already (it seems from your commentary on Dr. Chauncey's testimony that it has been). Take this as an apology for the tone of my comment on your piece at Huffington Post — there are risks, but I think we're in good hands after the first two days.

  • 14. Randy  |  January 13, 2010 at 6:14 am

    Paul Just wanted to thank you, you are doing a great job!

  • 15. CassieM...  |  January 13, 2010 at 6:15 am

    I want to thank all of you who are working so hard on sharing this information with us. It means so much. I refresh the page way too much and keep waiting for more, but it's absolutely worth it. Many thanks to everyone involved.

  • 16. Erin  |  January 13, 2010 at 6:16 am

    Thank you for this summary and analysis. I have appreciated how you've balanced transcribing with your own personal takes on things, but it's nice to have it laid out a bit more neatly, as here.

    Keep it up!

  • 17. Colt  |  January 13, 2010 at 6:16 am

    Thanks so much for doing this! It's been driving me crazy that they wouldn't put this up on YouTube (clearly the bad guys have something to hide!). I think even if it does go up, I'll keep coming back here for the commentary.

  • 18. Doug Wright  |  January 13, 2010 at 6:17 am

    I just want to add to the chorus of "thank-you's" for this amazing coverage. My partner and I are two of the 18,000 who were married in the brief window between the legalization of marriage in California and the passage of Prop 8, so we're riveted by the trial. You are doing an invaluable, historic service.

  • 19. David Kimble  |  January 13, 2010 at 6:17 am

    Thanks Paul, I concur and burden of proof is upon us, since we brought the lawsuit. It is imperative to show why the passage of Prop8 was detrimental to our community, which I believe our side has excelled at thus far.

    Additionally, thank you for your blogging. As a former secretary and transcriptionist, I know it is not easy- been there did that one!

    I am really surprised that no mention has been made of the Mormon churh's involvement the passage of Prop 8, but perhaps that is a can of worms best left unopened.

  • 20. Alec  |  January 13, 2010 at 6:19 am

    I too want to thank you. I don't live in CA. But this trail is extremely important to me.

    You are doing great!
    Today I am going to make a donation because of this great coverage.

    Thanks again,

  • 21. Sarah  |  January 13, 2010 at 6:20 am

    I am not understanding this "What will we teach our children?" argument. What is to stop them from teaching their kids whatever they want? Does the fact that adulterers can remarry prevent them from teaching monogamy? I just don't see how this argument can stand up in court.

  • 22. David Kimble  |  January 13, 2010 at 6:28 am

    Sarah, The argument what will we teach our children was a major focus in the Prop8 campaign and as such, relates to the argument made that pertains to denegrating our side in this issue.

  • 23. rpx  |  January 13, 2010 at 6:21 am

    Get some lunch and fortify yourself.
    Double expresso perhaps.

  • 24. AB  |  January 13, 2010 at 6:22 am

    Do you think the judge's demeanor favors us or them?

  • 25. Tom  |  January 13, 2010 at 6:23 am

    Paul – again, just wanted to say how grateful I am that you are there passing the words outside the courtroom. I can hardly get any work done this week since I am riveted by what you guys are reporting. Thank you for pitching in today and doing such a great job. I can't imagine how hard it must be to get all this into the blog in real time but we are all very thankful to you. Keep up the great work.

  • 26. Pam  |  January 13, 2010 at 6:23 am

    I think that the argument about gay marriage being taught in school is laughable. First: educational content of that nature is usually voted upon by school boards- who are voted in by the families whose children attend that school. If you don't like what they think, don't vote for them. Second: all schools send an "opt out" form for anything they think even think MIGHT be questionable. They don't want to be sued! Third: I attended public schools my entire life and I was NEVER once TAUGHT that "boys should marry girls". Society taught me that, which is why I now have a failed marriage under my belt. I finally figured it out that societies plan wasn't right for me and married the woman of my dreams 🙂

  • 27. David Kimble  |  January 13, 2010 at 6:30 am

    Yes, it is, since California law already prohibits the teaching of anything about the institution of marriage in the classroom.

  • 28. fiona64  |  January 13, 2010 at 6:40 am

    Yep. The only thing that is to be taught (and it's optional) is "respect for marriage and similar committed relationships."

  • 29. Tiffany  |  January 13, 2010 at 6:28 am

    Thank you so much for all of your hard work, Paul!! You are doing a fantastic job.

  • 30. Mykelb  |  January 13, 2010 at 6:30 am

    I hope that they have several psychologists lined up for witnesses so that they can show the cumulative effect of homophobia on one's psyche leading to suicides, mental illness and self-loathing that is dangerous to not only the individual, but to society in general.

  • 31. Laurel  |  January 13, 2010 at 6:50 am

    Mykelb, If you go to the website the 9th District Court has set up for this case (, you can view the witness list. I counted 3 psychologists and a professor of sociomedical sciences. Whether all or some of these witnesses will be called will be a strategy decision by the trial team, but the description of the testimony expected to be offered appears to touch on the topics you raise.

  • 32. DonG  |  January 13, 2010 at 6:51 am

    Yes, they have several psychologists lined up as witnesses; in addition, they have a gay guy who was forced to go through a "conversion" program. He will make a fascinating witness, I'm sure.

  • 33. Philip  |  January 13, 2010 at 6:31 am

    Thank you for your live blogging. I sincerely appreciate it.

  • 34. jon  |  January 13, 2010 at 6:31 am

    The judge going easy on the admissibility of evidence is likely to be what he does: this is a court trial, there is no jury. You won't be able to read much into that.

    Any update on the stay from the Supreme Court?

  • 35. Mykelb  |  January 13, 2010 at 6:38 am

    The Boies/Olson side should also trot out the Republican National Committee's Party Platform to show how Republican's are biased against us here :

    Preserving Traditional Marriage
    Because our children.s future is best preserved
    within the traditional understanding of marriage, we
    call for a constitutional amendment that fully protects
    marriage as a union of a man and a woman, so that
    judges cannot make other arrangements equivalent to
    it. In the absence of a national amendment, we
    support the right of the people of the various states to
    affirm traditional marriage through state initiatives.
    Republicans recognize the importance of having in the home a father and a
    mother who are married. The two-parent family still
    provides the best environment of stability, discipline,
    responsibility, and character. Children in homes
    without fathers are more likely to commit a crime,
    drop out of school, become violent, become teen parents,
    use illegal drugs, become mired in poverty, or
    have emotional or behavioral problems. We support
    the courageous efforts of single-parent families to
    provide a stable home for their children. Children
    are our nation.s most precious resource. We alsosalute and support the efforts of foster and adoptive families.
    Republicans have been at the forefront of protecting
    traditional marriage laws, both in the states
    and in Congress. ARepublican Congress enacted the
    Defense of Marriage Act, affirming the right of states
    not to recognize same-sex .marriages. licensed in
    other states. Unbelievably, the Democratic Party has
    now pledged to repeal the Defense of Marriage Act,
    which would subject every state to the redefinition of
    marriage by a judge without ever allowing the people
    to vote on the matter. We also urge Congress to
    use its Article III, Section 2 power to prevent activist
    federal judges from imposing upon the rest of the
    nation the judicial activism in Massachusetts and
    California. We also encourage states to review their
    marriage and divorce laws in order to strengthen marriage.
    As the family is our basic unit of society, we
    oppose initiatives to erode parental rights.

  • 36. Mykelb  |  January 13, 2010 at 6:38 am

    That's 55 million people in that Republican Party. 55 Million who hate us.

  • 37. Rebecca  |  January 13, 2010 at 12:40 pm

    Including, oddly enough, some Republicans who ARE us. How sick is that?

  • 38. fiona64  |  January 13, 2010 at 6:39 am

    I cannot thank Rick and Paul enough for their hard work on this project. I am so disturbed at what self-proclaimed "good people" are willing to do to others out of sheer bigotry. Keep on fighting the good fight, folks. When one group's rights are taken away, all of us are on the same chopping block.

  • 39. Coreen  |  January 13, 2010 at 6:45 am

    Thank you so much for doing this. I really like seeing the transcript of what is actually being said separate from the commentary. It is nice to be able to think for myself and then see what you have to say about it.

    I am shocked and appalled that this is the only way people can find out what is happening inside the courtroom. Keep up the very important work.

  • 40. Miles  |  January 13, 2010 at 6:45 am

    Thank you, Paul! You've done an admirable job today. Your insight has been very helpful and I can't wait to read your afternoon coverage.

    We're all SO fortunate to have this blog up and running. Thank you ALL!

  • 41. Raven  |  January 13, 2010 at 6:49 am

    Paul, I just took a moment on my lunch break to contribute. Thanks for letting me be there AND put in a full day at work.

  • 42. planetspinz  |  January 13, 2010 at 6:50 am

    Thanks for all you are doing.

    I wonder if the new hate crimes law will be taken into consideration by SCOTUS in determining whether Prop H8 is unconstitutional – just a thought that arose reading your compelling and thoughtful analysis.

  • 43. AB  |  January 13, 2010 at 6:52 am

    What is the chance that this trial can establish "suspect class" and, hence, strict scrutiny so that we don't have to prove ONLY animus?

  • 44. jon  |  January 13, 2010 at 6:54 am

    Zero. They can lay a foundation to show that it meets that standard, but the Supreme Court has already ruled as a matter of law that gay isn't a suspect class, which means that it would be a huge mistake to act as if the burden of proof isn't the way it is.

    They can put the facts in to give the basis for the Supremes to change their mind, but they can't act as if that didn't happen;.

  • 45. James Sweet  |  January 13, 2010 at 7:09 am

    I have heard similarly pessimistic predictions about the outcome of this case from other sources, sources I trust and which are on the right side of this issue.

    Which is what makes the YouTube thing all the more important. Even if this trial is a tactical failure, it can still be a strategic victory if it exposes and publicizes the abject bigotry of the leaders of the anti-gay marriage movement.

  • 46. David Kimble  |  January 13, 2010 at 6:54 am

    Does anybody know what channel will carry covereage of the trial, if cameras are allowed in the courtroom?

  • 47. Patrick Regan  |  January 13, 2010 at 6:57 am says that SCOTUS extended the TV broadcast ban. 🙁

  • 48. DonG  |  January 13, 2010 at 6:58 am

    The Supreme Court just ruled 5-4, in a 17 page opinion, that the trial could NOT go on YouTube. See

  • 49. J-dV.  |  January 13, 2010 at 7:00 am

    What if the other motivations for prop-8 did not involve animus but were not rational either. The traditional marriage line could be seen as not particularly malignant but just bad reasoning and ignorant. Would that be enough to win?

  • 50. rpx  |  January 13, 2010 at 7:00 am

    FWIW here is the link to the Supreme Court's Stay.

  • 51. Query  |  January 13, 2010 at 7:01 am

    BOO. What is SCOTUS thinking? Who are they protecting? This thing will go on and on until the trial is over. The very thought of opponents trying to hide this ought to say TONS about their mindsets towards the GLBT community and covering their lies.

  • 52. Query  |  January 13, 2010 at 7:05 am

    Write SCOTUS!

    Public Information Officer, Supreme Court of the United States, Washington, DC 20543

  • 53. K  |  January 13, 2010 at 7:09 am

    It amazes me just how hard it is to actually prove in a court of law that opposition to gay marriage is based on the idea that homosexuality itself is wrong and sinful. Growing up around the religious right as a kid in the 80s and 90s, everything I ever heard about opposing gay marriage or any other kind of gay rights were all based on the idea that it was sinful. Sure, there was lots of mention about what was going to be taught to children, but again, it was based on the idea that they didn't want children taught that something sinful was okay. The public rhetoric is a bit more polite than it was when I was a kid but the Yes on 8 advertising was full of dog-whistle words and phrases that people in the religious right would pick up on right away. I hope the judge sees that, because sitting here reading reports of the trial it couldn't be more obvious that I'm seeing the exact same religiously motivated arguments against homosexuality in general that I've heard my entire life.

  • 54. Jared  |  January 13, 2010 at 7:15 am

    For a State to pass ANY law, that law must have a rational basis to a legitimate state purpose. As you accurately note, this means that for the Plaintiffs to prevail, they must demonstrate either that there is no legitimate state purpose, or that Prop 8 is not reasonably tailored to effect that purpose. Unfortunately, sexual orientation has not been given suspect classification by the U.S. Supreme Court (though the CA Supremes did in In Re Marriage Cases), so the standard is basic rational relation (as opposed to the strict scrutiny applied to State acts which adversely affect racial minorities, or the intermediate scrutiny applied to gender).

  • 55. Erick  |  January 13, 2010 at 7:26 am

    Something else that Romer v. Evans stands for: you cannot enact an amendment to a state constitution to make it more difficult for one group of persons to obtain relief from the state legislature.

  • 56. curiousgeorgie  |  January 14, 2010 at 3:57 am

    First, thank you guys so much for liveblogging this so we can see what's actually been going on in the courtroom.

    Given the Prop 8 people's assertion that their opinions are rooted in sincere moral values, we should probably take care not to call them bigots.

    It's like fighting racism or sexism – you talk about the action, not the person. If you say the person is racist or bigoted, it becomes an attack on their character, and you can never prove what they were really thinking.

    What you have to say is that what they DID was bigoted, and that whatever their motivation, the action resulted in discrimination. This keeps the focus on the problem in society, rather than on a particular person.

    In my opinion, this is required viewing for anyone fighting discrimination:

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