Equality On TrialJudge Walker's Questions for Closing Statements

Judge Walker’s Questions for Closing Statements

June 9, 2010

By Paul Hogarth

By Paul Hogarth

Today, Judge Vaughn Walker delivered a series of 29 questions (12 to plaintiffs, 12 to Prop 8 supporters, and 15 to both) that will guide the Closing Statements. You can read them all here. “What follows is by no means an exhaustive list of questions,” he writes, “but is intended simply to assist the parties in focusing their closing arguments.”

But what some of them reveal is where the Judge is going with this case, and what we can expect the verdict to be. I’ve culled the ones that I think are more legally significant:

Plaintiff Question #1: Assume the evidence shows Proposition 8 is not in fact rationally related to a legitimate state interest. Assume further the evidence shows voters genuinely but without evidence believed Prop 8 was rationally related to a legitimate interest. Do the voters’ honest beliefs in the absence of supporting evidence have any bearing on the constitutionality of Prop 8? See Hernandez v. Robles 855 NE2d 1, 7-8 (2006) (“In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and a father in the home.”)

This, really, is the crux of the plaintiff’s case – and whether we can prevail on a “rational basis” test. To say that Prop 8 authors were motivated by hatred is easy – that’s been proven already.

But how can you say the millions of voters who went “yes” on Prop 8 are bigots? It would be impossible to prove that they are. The way we prevail is to show that those people – while honestly believing they were doing the “rational” thing – were merely acting irrationally. It goes back to San Diego Mayor Jerry Sanders testimony, when he said that it took a long time for him to realize his “rational” views against gay marriage and for civil unions were merely opinions rooted in prejudice.

Unless the Supreme Court is willing to take a leap to recognize sexual orientation as a suspect class (and we should not presume it would go that far), that’s the only way we are going to repeal Prop 8 in this case.

The fact Walker asked this question is encouraging. As for the citation to the Hernandez case, that was the New York high court case that said it was “rational” to give straights but not gays the right to marry because straights might “accidentally” have kids.

Plaintiff Questions #3 and #4: Until very recently, same-sex relationships did not enjoy legal protection anywhere in the United States. How does this square with plaintiffs’ claim that [same-sex] marriage is a fundamental right? What is the import of evidence showing that marriage has historically been limited to a man and a woman? What evidence shows that that limitation no longer enjoys constitutional recognition.

In other words, can “tradition” be a “rational basis” for denying someone this right? It reminds me of the old saying that the word tradition means something we’ve been doing for centuries, and have forgotten why. (Images of the “Fiddler on the Roof” musical are now seeping through my head.) This question is practically inviting our side to make the connection with interracial marriage, racial segregation, etc. After all, blacks in the South were never treated equally. Will it work? Probably with this Judge, but keep in mind that courts generally give great deference to tradition — so it’s a tough hill to climb.

Plaintiff #6: What empirical data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians?

I cringed when I first read this – “empirical” seems like quite a limitation, but I think our side can really seize on this question to highlight the social importance of marriage equality. And how the forces behind Prop 8 are the same ones who are against the “anti-bullying” legislative fights we’ve gone through in public schools.

Plaintiff #10: Even if enforcement of Prop 8 were enjoined, plaintiffs’ marriages would not be recognized under federal law. Can the court find Prop 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act?

This, my friends, is the inevitable DOMA question – and why folks like me had qualms about us taking Prop 8 to federal court without mentioning DOMA, and whether we were even putting the cart in front of the horse. After all, even if we get the right to marry in California – that’s only half the battle. We still don’t have any federal rights – Social Security benefits, joint tax returns, immigration rights, etc. Frankly, I have a hard time seeing how a federal challenge to Prop 8 does not implicate DOMA as well.

While we’re having this legal fight here on the West Coast, on the East Coast the civil rights group GLAD has filed a lawsuit in federal court to challenge DOMA. It’s on behalf of several gay Massachusetts couples, who nobody denies are legally married. The question there is whether DOMA denies them the equal rights under law. The federal government’s response in that case is to effectively say, “you have the right to get married – but there’s no constitutional right to the legal benefits of marriage.” How our Prop 8 lawsuit and the DOMA challenge in Boston play on each other is going to be fascinating and (let’s hope) complementary.

Defendant #2: Aside from the testimony of Mr. Blankenhorn, what evidence in the record supports a finding that same-sex marriage has or could have negative social consequences? What does the evidence show the magnitude of these consequences to be?

Essentially, Walker is telling the Prop 8 side to put up or shut up. There’s been a lot of discussion on this blog about how shallow the opposition’s case has been in favor of Prop 8, and how their one expert witness – Blankenhorn – proved to be quite underwhelming. Our challenge will be to link all of their “consequences” to mere bigotry – which will be easy for most of them.

Defendant #7: Assume the evidence shows that children do best when raised by their married, biological mother and father. Assume further the court concludes it is in the state’s interest to encourage children to be raised by their married biological mother and father where possible. What evidence if any shows that Prop 8 furthers this state interest?

This, my friends, is a dynamite question – and can really help destruct the opposition’s case. A “rational basis” is a justification that is “rationally related” to a “legitimate government interest.” The right-wingers always talk about “family” and the need to “protect our children.” But Prop 8 really only did one thing – make it impossible for gay couples to get married. It did not – and could not – help a single child who otherwise would not have been get raised by their biological parents. If the opposition can’t make this link effectively, the Court can’t possibly find a rational reason for denying loving gay couples the right to marry.

Both Sides #6: In order to be rooted in “our Nation’s history, legal traditions and practices,” see Washington v. Glucksberg, 521 US 702, 710 (1997), is it sufficient that a practice has existed historically, or need there be an articulable purpose underlying the practice?

Very encouraging question for our side. “Tradition” may be a rational basis for certain laws, but not tradition per se – The fact that gay couples have not had the right to marry historically is a fact worth considering, but Judge Walker is effectively asking our opponents to “put up or shut up.” Provide proof – beyond circular logic that “it’s always been that way” – that we should proceed with the traditional definition of marriage. Courts are inherently conservative, and reluctant to overturn traditions – but Walker is injecting an important distinction: traditions that are still justifiable and reasonable, versus those that have no real purpose left.

Equality on Trial: Judge Walker issues series of... Great call with Ted Olson, Chris Dusseault, and...

2214206 Comments2010-06-09+13%3A00%3A12Paul+Hogarth

1. Patrick Regan | June 8, 2010 at 11:46 pm

These questions make it very interesting. I'm really looking forward to seeing how this plays out. I'll keep checking this site.
2. Straight Grandmother | June 8, 2010 at 11:53 pm

I am humbled to be the first to comment.
Plaintiff #10: Even if enforcement of Prop 8 were enjoined, plaintiffs’ marriages would not be recognized under federal law. Can the court find Prop 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act?

Errr YEAH! While you are at it Judge Vaughn, if you can slap down that pesky DOMA at the same time you you slpa down Prop 8 in California I would be beholding! 🙂
3. Straight Grandmother | June 8, 2010 at 11:57 pm

Defendant #7: Assume the evidence shows that children do best when raised by their married, biological mother and father. Assume further the court concludes it is in the state’s interest to encourage children to be raised by their married biological mother and father where possible. What evidence if any shows that Prop 8 furthers this state interest?

The ONLY conceivable answer the Defendents could offer is, "Well gay people would then marry straight people if they wanted to have children." This of course makes no sense at all since the evidence shows that sexual orientation is immutable. It may take a while to emerge, but once out, you are not likely to change it. So thier solution would have to be that people marry others who they are not sexually attracted to. This would further the states interest your honor LOL!
4. John | June 9, 2010 at 12:17 am

Sadly, that's what a lot of them expect us to do, it would appear. Unhappy, sexless marriages are to be valued over loving ones, apparently.
5. Wade MacMorrighan | June 9, 2010 at 1:15 am

John, you're right! A lot of them expect us to do that! I had one woman over at the NOM FB page declare that Gay relationships are "about LUST not LOVE!" While another woman declared, "Marriage is not about love!"

Of course, then there have been those opponents (such as one guy from YouTube) who stated that "the onus" was on us to prove–shifting the burden of proof–how beneficial it is to the state to ALLOW us to legally marry (rather than what benefit is there for the state to deny us marriage license). His reasoning, he was convinced, was sound: we should not be applicable because we cannot, naturally, produce succeeding generations of tax-paying citizens. But, as I thought about it, the more that sounded like Nazi rhetoric, because our German brothers were rounded up and shipped off to death camps under Nazi oppression and persecution because, it was believed, that as a consequence of their homosexuality, these fine Gay men were depriving Germany of the sons and daughters that they owed her!

So, I mentioned to him that, if this was his rational, then why not limit marriage to heterosexual couples able to conceive and deny legal marriages to the elderly and infertile, giving them "Civil Unions" instead", oh…and lets not forget to annul the marriages of those who just don't want kids after a year if they should get a marriage rather than a CU! His response to that was that it'd be cost-prohibitive to the state to test all these people for fertility, etc. However, I distinctly remember that it was a required part of getting a marriage license in the 1980s to have a blood test! And, some ethnic groups are strongly recommended to get genetic testing before they marry for fear of passing on certain torturous and terminal diseases to their off-spring.

Furthermore, we must bear in mind that nearly ALL of NOM's supporters see marriage (the word, especially) as a religious activity, rather than anything secular. This, in spite of the historical evidence that the Church was initially opposed to sanctioning marriages for several hundred years!

For further reading on the culture-war that has been waged against us, and its impetus, please read the following article:
http://www.splcenter.org/get-informed/intelligenc…

But, before I leave, I also recall another member of NOM's FB page behaving in a most condescending manner: she stated that we are merely children who don't know any better, and have to be told by their parents (them), "NO!"
6. fiona64 | June 9, 2010 at 4:05 am

Wade, that blood test requirement was not for fertility testing. It was to determine whether or not one of the parties had a venereal disease. The requirement was removed, as it was considered a violation of the US Constitution under the penumbra of a person's right to privacy.

Love,
Fiona
7. Wade MacMorrighan | June 9, 2010 at 4:39 am

Fiona64, I fully realize the impetus for blood-testing in the 1980s, but my logic is still sound! ;o)
8. Richard A. Walter (s | June 9, 2010 at 2:01 am

SG, I also foresee another scenario that allows both to occur. And I am stating this from actuallly knowing two couples who did this. The fathers were a gay male couple, the mothers were a lesbian couple, and they shared a duplex. When the two lesbians became pregnant through IVF, the two men constructed connecting doors between the two duplexes. While neither couple could legally get married, the biological parents of the children worked together to raise the children. the children grew up knowing the love of two fathers and of two mothers. And this could very well happen once marriage equality is the law of the land. In fact, it is probably happening even now.
9. Kim | June 9, 2010 at 12:17 am

Whoww, after reading the questions, the defendants will have a hell of a time to proof that they have a legitimate interest.
10. Sagesse | June 9, 2010 at 12:29 am

Serves them right. It would have helped immensely if they'd put up any evidence at all at trial.
11. Bolt | June 9, 2010 at 12:30 am

Finally reason has taken center stage. After decades of listening to the reckless garbage, espoused by christianist lunatics, they're forced to get real.

While our side may, or may not be able to answer some of the questions, I have no doubt about the quality, truth, and suitability of what they'll produce; conversely, I have no doubt, that at every turn, the religious legal proponents of proposition 8 will absolutely fail in this arena of reason.

As you are.
12. Wade MacMorrighan | June 9, 2010 at 1:19 am

Personally, I would like some of that "reason" to be injected into Iowan popular consciousness!!! Our opponents are NOT letting up, here!
13. John | June 9, 2010 at 1:22 am

I read a quote from an opponent recently that said they would fight same-gender marriage even if the majority voted to make it legal. It's disgusting.
14. Monty | June 9, 2010 at 1:43 am

To be fair, that's pretty much what we're doing right now. The difference, of course, being that we're not doing it out of spite.
15. John | June 9, 2010 at 1:48 am

We're honest about it, however. And minority civil rights should never be put up to popular vote.

They chant "Let us vote!" but, if the vote doesn't go their way, they don't want it to count.
16. Monty | June 9, 2010 at 1:50 am

“A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.” – Thomas Jefferson.
17. Rebecca | June 9, 2010 at 12:37 am

I too was shocked at how little evidence and testimony the defense put forward. They have really given themselves no base to stand on, especially with regards to future appeals.

That scares me a bit, because it seems to imply the defense is very confident with their " because it's always been that way" argument for upholding tradition. And they may have been counting on DOMA to be a major deterrant to any anti-Prop 8 ruling.

I'm cautiously optimistic about the outcome of this trial, and I'm incredibly happy that this crucial testimony is now on record and can be used in the continuing fight for gay marriage nation wide.
18. John | June 9, 2010 at 12:59 am

The defense has three things to support their case:

1. Religion
2. Tradition
3. Gays are YUCK!

None should hold up in a court of law, though we know from past experience that all three have in the past.
19. RWG | June 13, 2010 at 1:13 am

Their argument boils down to one simple premise:

"we got ours, and we ain't sharin' it with no damn queers!"

That's all they've got. It's about time someone called them on it.
20. Rick | June 9, 2010 at 1:14 am

Did anyone else notice Plaintiffs and Proponents #11:

“What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not for women? Must gay men and lesbians be treated identically under the Equal Protection Clause?”

What??? Sexual orientation is not a choice for men, but it is for women? Where did this come from?
21. Monty | June 9, 2010 at 1:46 am

I don't see why it would matter anyway, since there's no legitimate reason to discriminate on that basis regardless of whether it's immutable.
22. Kim | June 9, 2010 at 2:22 am

They tried to show orientation was a choice, and in that context, it became obvious that female sexual orientation is generally more fluide than male sexual orientation. They tried to spin that fact into that it was a choice, but this question is taking the bite out of that by explicitly asking the question, and what about the immutable males?
23. Straight Grandmother | June 9, 2010 at 5:50 am

Immutable is important as that recognition will provide the main basis to prove discrimination. "Look you are discriminationg against people for something they have no control over" This is why ALL the H8tros refer to it as a choice.
24. Monty | June 9, 2010 at 5:52 am

I still think that if they are allowed to discriminate on that basis, we should be able to discriminate against them based on religion, since that is far more mutable.
25. Kathleen | June 9, 2010 at 10:47 pm

Immutability is one of the prongs to establish that glbt people are a "suspect class" and thus any discriminatory law must be subject to a higher standard of review by the courts.
26. Bill | June 9, 2010 at 3:01 am

The entire notion of 'choice' is ridiculous. It being gay is a choice, then gay men are really straight? But have sex with men, which supposedly REPULSES straight men??? Why would someone even DO that???

This is the argument a foolish bigot uses, because it is the only way they can reconcile it in their own heart. For, if being gay ISN'T a choice, how does a heterosexual possibly excuse their vile treatment of their LGTB children?
27. Rightthingtodo TX | June 9, 2010 at 7:05 am

The entire notion of ‘choice’ is ridiculous. It being gay is a choice, then gay men are really straight? But have sex with men, which supposedly REPULSES straight men??? Why would someone even DO that???

Bill… I love this statement…never saw or heard it put that way.
28. Mike | June 9, 2010 at 10:16 pm

Absolutely correct!! This is what I have been saying for years. It's absurd.
Until people understand the difference between sexual acts and orientation, none of these issues are relevant and can even be discussed legitimately.
The core understanding that orientation is not a choice has to be understood and accepted before you can even begin to discuss the issue of marriage.
Ugh.
29. Nick | June 12, 2010 at 11:18 pm

Part of the choice argument is that feeling gay and acting gay are two different things. That gay men really are gay (orientation), but they choose to have sex with men (action).

This leads to the whole ex-gay thing, which is an embarrassing failure.

It's almost understandable to say the because individual partner selection is a choice, that the gender of the partner should also be part of that choice…but thats just not the case out side of bisexuals.

And i believe (could be wrong) even most bisexuals have a preference as to what gender they wish to partner with and which they wish to masturbate to.
30. Bob | June 9, 2010 at 11:00 am

the important part of the question is "if the evidence shows"

bsaically he's asking to flesh out this notion, he is asking us to look at all angles, surrounding the idea of immutability.

is there evidence to support this notion, specifically immutability for men but not women.

and if so, on what basis would we argue that gay men and lesbians, be treated equally.

This kind of opens the door to our own long standing differences, and squables even to the point of asserting different labels for ourselves, as gay men and lesbians, do lesbians claim their sexuallty is immutable, or do they prefer the different distinciton
31. Fluffyskunk | June 9, 2010 at 2:19 pm

In other words, their alleged evidence showed that women are more likely to be BISEXUAL than men. Yes, bisexual. We do exist, you know.

That said, their data is rubbish. I seriously doubt that there's a real, significant gender difference in the "fluidity" of sexual orientation (i.e. the prevalence of bisexuality) – the discrepancy is explained by the fact that it's more socially acceptable for a woman to date a man after dating a woman ("bisexuality" for women just means experimenting with women in order to attract men!), men on the other hand are expected to "come out" and date only men from then on ("bisexuality" for men just means you don't want to admit you're gay!) It all comes down to social expectations and gender stereotypes.
32. JonT | June 9, 2010 at 4:16 pm

Yes, bisexual. We do exist, you know.

Yes, I know 🙂

…the discrepancy is explained by the fact that it’s more socially acceptable for a woman to date a man after dating a woman (“bisexuality” for women just means experimenting with women in order to attract men!), men on the other hand are expected to “come out” and date only men from then on…

I'm not so sure that's the reason for this assumption (that women are more 'fluid' in their sexuality than men).

I think it's just been more 'socially acceptable' in the past for women to be with women, than men with men. If you look at pornography (no pun intended), straight men are generally quite ok with lesbian sex (assuming the women in question are 'attractive' to the straight men watching it).

How many straight women are turned on by man on man sexual encounters?

Personally, I do not believe sexual orientation is any different (more fluid) for women than men. It's just been generally more acceptable historically.
33. Dan Hess | June 10, 2010 at 2:05 pm

Oddly enough, Jon, a lot. A near-majority of every girl I know who'll admit to watching porn, in fact.
34. JonT | June 10, 2010 at 2:15 pm

@Dan: Oddly enough, Jon, a lot. A near-majority of every girl I know who’ll admit to watching porn, in fact.

Really?!? I must admit to being very surprised by this! But, being gay, obviously I don't have a lot of experience with female porn preferences 🙂 I have never met a woman yet that admitted to viewing porn (other than with a BF) and mentioned m2m action being any part of it…

Learn something new every day I guess 🙂
35. Nick | June 12, 2010 at 11:37 pm

i think the whole "lesbians are hot, gays aren't" says alot.

Lesbian activity is far more accepted if not prized in our society.

It seeps through our TV sets, and even my brother maintains such a perspective. One i cant fault him for, he is straight and likes seeing women kiss.

To my brothers credit, he does not OPPOSED gay people kissing, he simply fails to be excited by it. and i fully feel that is the appropriate perspective to solve this skewed perception of fluid sexuality.

If bisexual men where not taught that that other part of their sexuality was wrong, or made them fully gay. then more of them would probably admit to enjoying men, or open them selves to actually entering into a relationship with them. even if they still preferred a female partner.

As it is why admit to liking dudes if your dominate preference is women.

Women on the other hand have no such social pressure, and so its fine if they admit to having attractions to other women, even if they prefer men. After all hearing about kissing another women in college is hot.
36. B&E | June 9, 2010 at 1:20 am

Defendant #7: Assume the evidence shows that children do best when raised by their married, biological mother and father. Assume further the court concludes it is in the state’s interest to encourage children to be raised by their married biological mother and father where possible. What evidence if any shows that Prop 8 furthers this state interest?

I think this new study of children raised by Lesbian Parents recently released should answer this question.

Read the full study here.
http://pediatrics.aappublications.org/cgi/reprint…
37. Bolt | June 9, 2010 at 9:53 am

It can't be admitted as evidence at this stage of the trial.
38. Petr Tomeš | June 9, 2010 at 5:12 pm

Examining the impact of same-sex marriage on children, the plaintiffs introduced Michael Lamb, a developmental psychologist at the University of Cambridge. He contended that there is a fairly substantial body of literature since the late 1970s that focuses specifically on the adjustment of children parented by gay men and lesbians which provides very good understanding of the factors that affect the adjustment of children being raised by gay and lesbian parents. This substantial body of evidence documents that children raised by gay and lesbian parents are just as likely to be well adjusted as children raised by heterosexual parents. He noted that for significant number of these children, their adjustment would be promoted were their parents able to get married. He added that a field of developmental psychology came to the conclusion that what makes for an effective parent is the same both for a mother or a father, and that children do not need to have a masculine-behaving parent figure, a father, or feminine-behaving parent figure, a mother, in order to be well adjusted.
http://en.wikipedia.org/wiki/Perry_v._Schwarzeneg… http://www.equalrightsfoundation.org/wp-content/u…
39. Nick | June 12, 2010 at 11:39 pm

i heard about this on OutQ, very interesting study. hopefully it will be used.
40. Kathleen | June 13, 2010 at 5:50 am

Bolt is right that this newest study can't be used in this case. However, you're all missing the point. In this question, Walker isn't asking whether it's true or not that children do best when raised by their married biological mother and father, he's saying ASSUME IT'S TRUE and ASSUME further that it's in the state's interest to have children raised this way, then tell me how Prop 8 actually furthers that interest. In other words, he's asking: How does barring same sex individuals from marrying make it more likely that children will be raised by their married, biological mothers and fathers?

By the way, to remind yourself of all the supposedly legitimate state interests Proponents' claim are furthered by Prop 8, refer back to Proponents' Trial Brief – Doc 605 available here: http://docs.justia.com/cases/federal/district-cou…

This question of Walker's is specifically addressing their alleged interest stated on pg 14 of Doc 605:
"Increasing the probability that each child will be raised by both of his or her biological parents."

Also, in the Proponents' Proposed Finding of Fact, Doc 606, they specifically say that Walker should find that "The traditional institution of marriage increases the probability that each child will be raised by both of his or her biological parents." (page 60 of Doc 606)

BTW, Walker posing the question this way doesn't mean he's going to find that children do best raised in this traditional family, he's just trying to get D-Is to explain how their evidence proves that banning ss marriage furthers what they allege is a legitimate state interest.
41. John | June 13, 2010 at 6:05 am

Unless I'm mistaken, Prop 8 supporters would have to prove that denying same-gender marriage will automatically result in homosexuals marrying someone of the opposite gender, thereby spawning one or more children from the loins of both participants.

Certainly, some do this already, but that's due to the stigma of homosexuality, rather than a desire to raise a child produced from one's own sperm or egg.
42. K!r!lleXXI | June 28, 2010 at 5:04 am

“[Proposition 8 furthers governmental interests, like] Increasing the probability that each child will be raised by both of his or her biological parents.”
–Doc 605 (D-I's trial brief)

Gay people have kids, too, you know… their own biological kids!

You can deny gays the right to marry, that's in your power up until some point in the history when such a blatant bigotry will no longer be possible to exist, but you cannot forbid people to have kids, even if only one of the partners in a gay couple is actually a biological parent.

However, apparently, the Supreme Court of the United States decided that the married couple has more rights to call the child of one of them theirs than his/her biological parents — Michal H. v. Gerald D. (1987): Michal was a biological father of the woman's daughter, but the woman was married to Gerald, and the Court decided that Gerald has more rights, even if he's not a biological father. Now, what the hell? On the one hand, they care about stable families for kids, while on the other hand, they say it's important to give kids their biological parents of both genders! You can't have it both ways! We know that it's nothing but animus against us, the gays! If they care about stable families, they have to promote same-sex marriages to create stable families for those children that gay people do have, whether you like it or not! So, in the light of Michael decision, SCOTUS should rule in favor of same-gender marriages, not the other way around!

ᴥ ᴥ ᴥ

“Prop 8 supporters would have to prove that denying same-gender marriage will automatically result in homosexuals marrying someone of the opposite gender, thereby spawning one or more children from the loins of both participants.”
–John

We have the entire history to show how we lived without marriages… how we had to marry people of opposite gender and had to have kids with them, even though we were not really in love with those people. And what does it lead to? Right — unhappiness, misery, depression! That's what they want for us — to hide and oppress ourselves for nothing we did wrong and nothing that is wrong with us!

–ĶĭŗîļĺęΧҲΪ
43. Richard A. Walter (s | June 9, 2010 at 1:31 am

This is another outstanding post. I am so glad to see the 39 questions Judge Walker gave the parties involved. Yes, we had to mention DOMA, because ultimately, DOMA's fate will rest on this case and others like it. I foresee that this will be our watershed moment, and that this will give us more reason to help our brothers and sisters who are still in the closet to come out. And believe me, I will be right here as Rick liveblogs the closing arguments.
44. Richard A. Walter (s | June 9, 2010 at 1:33 am

One other thing. I am also glad to see that Julia, Rick and Brian see the national implications of this case. Most of our Trial Trackers also see that, but we do still have a few who wonder what effect it will have on them. If it only has the effect of getting all of us off our rears and into the legislative halls to talk with our elected officials, then this will still have far-reaching implications.
45. David Kimble | June 9, 2010 at 2:18 am

To all the trial trackers – I concur with your observations and comments, save one; the reality is this, since we are the plaintifs in this case – the burden of prroof lies with us in this case. I feel strongly our side will prevail in this case. Our case strongly supported the statements made in the courtroom. While on the surface, it does appear the defendants case was weak – look at the evidence they offered in support of their case – most of it was weak (I am referring to the documents they presented, not what was necessarily said in Court. I have read all of these documents – this is my conclusion – the evidence offered in these documents was speculative on the part of the defendants and you will also recall many of their witnesses backed-out of appearing in court, yet their depositions were admited into evidence by Judge Walker. As Paul points-out in this story, the evidence is strongly on our side – it will indeed be interesting to see the next trial, where the Prop 8 side will have to rely on the evidence presented in this case and assuming Judge Walker rules in our favor (which again looks highly likely), the evidence submitted in this trial is a done deal (in other words, there can be no new evidence submitted in appeals courts). I am wondering how they will argue their case in the appeals process and as Paul alluded to – will they simply argue the status quo should take precedence. <3 David
46. Dolores Cordell | June 9, 2010 at 7:41 am

I'm not a Constitutional lawyer, but as I recall the burden is on the state to show that there is at least a "rational basis" for ANY law. If the law interferes with a Constitutional right, the state needs to show a "compelling state interest" in the limitation it has imposed.

The Prop H8 advocates are NOT being represented by the California Attorney General or other government official, but I believe the result would be the same.

For the life of me I do not understand why Prop 8 isn't being challenged as an equal protection issue as well.
47. David Kimble | June 10, 2010 at 1:35 am

"If the law interferes with a Constitutional right, the state needs to show a “compelling state interest” in the limitation it has imposed." The issue of "Constitutional right" is one of the things at the core of this case. Is marriage an immutable right? I recall during the trial, Judge Walker, asked, What would be the difference, if the State got out of the marriage business? Wouldn't that solve the problem? It's hard to know how he will decide on this issue and how it will play-out. With that said, I believe this issue to be at the core of the case. <3 David
48. Ronnie | June 10, 2010 at 5:38 am

David K….that's the argument I keep have with anti-gay people online. "the Government needs to get out of the marriage business it is a religious institution & tradition only"

1. Then heterosexuals who do not follow your religion cannot get married.
2. Be-religious couples cannot get married
3. If you say then I won't to hear that you have a government (the same gov. that my tax money is used for) issued marriage License.
4. Do NOT accept any government issued rights, privileges, & benefits that is given to a married couple. That is how government is involved in marriage.
5. If you get married to someone from another country you can't sponsor their American citizenship because that is a government given marriage right.

They don't get that and its utterly asinine that they don't…..face in palms…..<3…Ronnie
49. John | June 10, 2010 at 5:45 am

Plenty are aware of those things, Ronnie, and they don't give a rat's butt.

We're a Christian nation (they claim), and our laws come from the Bible (they claim), so marriage is for man+woman only, as that is God's (alleged) will.

These, of course, are the people who will scream until they're blue in the face that being gay is a "choice," so we should be prepared for the consequences. Thank goodness they're dying off.
50. Ronnie | June 10, 2010 at 5:49 am

The Rapture could not come any sooner…..Then we can all have a little peace & quiet….lol…..<3…Ronnie
51. Kathleen | June 13, 2010 at 6:47 am

@Dolores Cordell, David is correct that the burden of proof is with Plaintiffs. You're correct that even the lowest level of scrutiny ("rational basis") requires the state to present evidence that the law is "rationally related" to a "legitimate" state interest. Once the state presents such an alleged legitimate interest, the burden is on Plaintiffs to prove that either (a) the interest is not a legitimate one, or (b) the law doesn't further that interest. Where burden of proof comes in is that if both sides were to present equally compelling evidence, Plaintiffs lose.

Keep in mind that this "rational basis" standard of review is really weak and very few laws subjected to this standard are struck down. In cases like Lawrence v Texas and Romer v. Evans, the Supreme Court claimed to be applying a rational basis test, but most legal scholars agree that the reality is that it was some form of heightened scrutiny, often referred to as "rational basis with bite."

Also, just to be clear, Plaintiffs are making an equal protection claim. See Complaint here: http://www.scribd.com/doc/15841006/Perry-v-Schwar…
52. Chris | June 9, 2010 at 2:32 am

What about this:
Both #7: If spouses are obligated to one another for mutual support and support of dependents, and if legal spousal obligations have no basis in the gender of the spouse, what purpose does a law requiring that a marital partnership consist of one man and one woman serve?

This was an insight from Judge Walker that I hadn't seen raised anywhere. Apologies if I missed it. But Judge Walker is saying, we've never codified traditional gender roles of marriage into law (i.e. men make money, women stay home and raise kids, cook, etc.) why are we starting now? The real legal tradition is gender neutral legal obligations under the law.
53. Bill | June 9, 2010 at 3:03 am

I have always felt that denying marriage rights to same-sex couple was, first and foremost GENDER discrimination.

I never understood why we aren't arguing it on those grounds.
54. John | June 10, 2010 at 5:47 am

That's what finally put one of my co-workers on our side. If Person A can marry Person B, but Person C may not because Person C is not the same gender as Person A, then Person C is being discriminated against on the basis of gender.
55. Wade MacMorrighan | June 9, 2010 at 4:45 am

Many Marriage Equality opponents and anti-Gay advocates actually deeply cherish and enshrine what they call "traditional gender roles" which, to us, would be offensive stereotypes! The Ruth Institute (a NOM-affiliate) has been suspected of wanting women to stay home and remain baby-factories!
56. Monty | June 9, 2010 at 5:26 am

It's often been suggested that homophobia and misogyny are related, and I tend to agree.
57. Dolores Cordell | June 9, 2010 at 7:44 am

I agree with Monty. The entire argument is focused on keeping "traditional" patriarchy in place, along with its worst excesses of war and subjugation of the non-ruling elite.

And it's an easy segue from "God says so" to "I say so." Authoritarianism anyone?
58. Monty | June 9, 2010 at 7:46 am

This was quoted recently, but I think it bears mentioning again:

"I distrust those people who know so well what God wants them to do, because I notice it always coincides with their own desires." – Susan B. Anthony
59. fiona64 | June 10, 2010 at 4:06 am

Homophobia is deeply rooted in misogyny. I have posted this link before, but am happy to share it again:
http://atheism.about.com/b/2005/05/30/homophobia-…

Quote:

Traditional masculinity is valued as powerful and dominant, while traditional femininity is associated with weakness and submission. Traditional femininity solely exists to reaffirm the traditional masculinity’s power and dominance. Homophobic men who treasure traditional masculinity (and even hyper-masculinity) view the relationship between Gay men to be unnatural because there is no woman or feminine being to reaffirm the masculinity and manhood–the so called “power” aspect is missing.

Love,
Fiona
60. Straight Grandmother | June 9, 2010 at 2:32 am

Question to the group- Which ONE question to the Plaintiffs shows a weak point for our side. Which ONE question to the defendents shows their weakest argument?
61. Bill | June 9, 2010 at 2:40 am

"But how can you say the millions of voters who went “yes” on Prop 8 are bigots?"

41 years of experience.

If this has ANYTHING to do with ANYTHING other than pure, raw, ugly hatred, I will eat my own head.

If straights don't get real with themselves, we're in for a long, long fight.
62. Monty | June 9, 2010 at 2:47 am

It may not always have been conscious, but I guarantee that on some level they were motivated by the belief that gays are somehow inferior.
63. Bill | June 9, 2010 at 3:21 am

What other reason would exist?
64. Straight Grandmother | June 9, 2010 at 5:45 am

Easy, they FEARED for their children. That is why they voted against you. They FEARED their children would be "exposed" to homosexuality in the schools. They felt fine with it on an adult level, but they voted to protect thier childdren, and voted against you. Our side did lousy lousy lousy on this point. IF they would have taken on this issue the eferendum would have gone the other way.
65. Dolores Cordell | June 9, 2010 at 7:53 am

I don't get TV reception, so I didn't see the anti-8 ads, but I was told that they were pretty intellectual, talking about "fairness" and "rights."

For heavens sake. When WILL progressives learn that people vote their GUT not their MIND.

The ads should have trotted out couple after couple, preferably with children, talking about how they want to be a legal family like everyone else. THIS is where the real issue is. People. Living, breathing people.

BTW: Having clocked the fundamentalist for a couple of decades, what is doubly outrageous about Prop H8 is that the fundies railed for YEARS about the "promiscuous homosexual life style."

But as soon as the LGBT community said "Oh. You're right. Being married IS better!" look what happens!!!
66. Ronnie | June 9, 2010 at 2:44 am

"Traditions" alway changes…..that's it….period….& the anti-gays need to get over it…

X-mas is a tradition-changed
Halloween is a tradition-changed
Thanksgiving, Easter, Valentines Day, the 4th of July, Wedding ceremonies, Proms, Family, Education

changed, changed, changed, changed, changed, changed……

"It’s on behalf of several gay Massachusetts couples, who nobody denies are legally married."

correction….no pro-equality person denies they are legally married…its all over facebook, NOM. the Family Restriction Council, ect ect ect…..they say "they are not married because it is not recognized under the lord & the government shouldn't & doesn't either"….they are so delusional

I'm just saying….<3…Ronnie
67. Elizabeth | June 9, 2010 at 3:22 am

D's claim that procreation is the focus of marriage.
Wow! Studies now show children thrive with Lesbian parents and Lesbians can generally have twice as many children at one time as can Heteros. Seems like Lesbian marriages are the preferred way for society to go!
68. Ronnie | June 9, 2010 at 3:37 am

That argument by the anti-gays, has & will always be found to be illogical & irrational….

If the focus of Marriage is procreation then infertile women & older women who have gone though Menopause & Sterile Man cannot get married…

Everybody must supply a fertility test prior to receiving a marriage license & all heterosexual couples must produce a child within one year of marriage or forcibly be separated & divorced/annulled

there's a slippery slope….<3…Ronnie
69. Monty | June 9, 2010 at 3:42 am

"But that's too hard! And it discriminates against some straight people (because, of course, only they are worthy of protection from discrimination)!"
70. Ronnie | June 9, 2010 at 3:48 am

NO!!!….no marriage for them…they can't fulfill the purpose of marriage…. >( …..Ronnie
71. Elizabeth | June 9, 2010 at 3:51 am

The point is that by Christian logic Lesbian marriages should have favored status. How can you beat that?.
72. John | June 9, 2010 at 3:58 am

But any sex that has no chance of procreation is sinful! Assuming people who wish to marry also want to have sex, if they can't conceive, they shouldn't be allowed to marry.
73. Monty | June 9, 2010 at 4:03 am

Of course. I always base my morality on horribly outdated ideas about biology.
74. Richard A. Walter (s | June 9, 2010 at 4:07 am

@#42
Ah, but that doesn't apply when it is their marriage, John.
75. John | June 9, 2010 at 5:21 am

@Richard:

If you go to some Christian sex advice for married couples sites, you can read that:

mutual masturbation is sinful
sex with protection is sinful
oral sex that does not lead to penis–> vagina sex is sinful
anal sex that does not lead to penis–> vagina sex is sinful
76. Richard A. Walter (s | June 9, 2010 at 10:06 am

Yes, John, I realize that. I was merely pointing out the fact that they take a "do as I say, not as I do" approach to this whole issue. And that is why their hypocrisy is so easy to unearth.
77. Lora | June 9, 2010 at 4:14 pm

Richard…that was my marriage you were referring to!! Wow, I am happy that it meant enough for you to remember it. Amazing that it's been nearly 2 years!

I've been reading this site since the beginning. I don't post much but get so much hope and encouragement from everyone that posts. Thank you all and here's to total equality for all of us…sooner rather than later. <3
78. Richard A. Walter (s | June 10, 2010 at 1:03 pm

Yes, it meant a lot to me, especially because we have had friends who have expressed a desire to be at our wedding for the same reason–they feel that seeing us able to have full legal recognition of our relationship will make theirs even more real to them, because it will be a shared experience. they also feel that granting marriage equality will make ALL sound marriages in the US more meaningful, because it will increase the number of people who are doing the right thing and making a formal, legal, public commitment to their spouses and to the rights and responsibilities that go along with that formal declaration.
In fact, remembering what you posted about your wedding was part of our motivation for participating in the Equality NC Day of Action with our local legislature. It was a way of making our voices heard, and standing up mot only for ourselves, but for everyone in North Carolina who has to leave the state to have a legal marriage license and legal marriage certificate. And I would like to take this opportunity to express my hope that you and your wife enjoy many decades of happiness and love together.
79. John | June 10, 2010 at 1:25 pm

I don't recall the numbers, but when I was looking at marriage rates last year in countries that allow same-gender marriage. If I remember correctly, marriage rates had actually gone up in most of the countries after same-gender marriage was legallized.
80. Richard A. Walter (s | June 10, 2010 at 1:30 pm

Yes, and closer to home, there has been a dramatic DROP in the divorce rates in Massachuseets in the 7 years since they granted marriage equality.
81. Nick | June 12, 2010 at 11:48 pm

Procreation can still be argued as legitimate goal for married gay couples. just not natural procreation.

I think these groups would like us to not be able to get married in some empty hope to slow or even take away our children.
82. Felyx | June 13, 2010 at 1:48 am

Who said we can't naturally reproduce? I believe Michael H. v. Gerald (D., 491 US 110 – Supreme Court 1989 http://scholar.google.com/scholar_case?case=18282… says we can do all the 'natural' procreating we want and still raise our children in the context of our own marriages!!!! 😉
83. John | June 13, 2010 at 2:02 am

But we can't procreate solely within the realms of our two-person, same-gender relationship.

Just like opposite-gender couples where one or both is incapable of procreating.

BUT!

Opposite-gender couples have the required, even if non-functional*, partially missing*, or deliberately disabled*, equipment, however. Therefore, it makes total sense to allow them legal marriage while simultaneously SPITTING IN OUR FACES.

*due to age, injury, hysterectomy, orchiectomy, castration, tubal ligation, vasectomy, etc.
84. Felyx | June 13, 2010 at 2:12 am

Again, I will point out the subconscious bias…even within a two-person same-gender relationship procreation is still possible….or did you mean to just dis all our trans-friends?…! (Of course I don't think you did but again….there are more cases here than just gay men or just lesbians…there are bisexuals, trans-people and those who just want to have fun!!)

😛 Felyx
85. Nick | June 13, 2010 at 2:54 am

I do not have anything against trans-peoples. To my knowledge most fully altered people do not have functional reproductive tissue. MTF do not have uteruses, nor functional testicles. same for FTM.

My point is that "natural" procreation, meaning conception from intercourse with the mother caring the child to term, Is not possible with in a monogamous same sex marriage.

However procreation by artificial means is possible, and not an uncommon reason for gays to want to be married.

Therefore it is a legitimate goal for gay marriage just as it is for straight marriage.

So the defenses point that procreation and child raising is one of the most important structures in marriage, and that gays would not have the same interests or capabilities in that respect is flawed.
86. John | June 13, 2010 at 3:50 am

I'm not dissing trans folk, Felyx.

A transgendered person who's transitioned surgically is going to be infertile, regardless of the physical gender of the person he or she wishes to marry.
87. Alto | June 14, 2010 at 2:31 am

Time magazine just posted an online article about 'Kids with Lesbian Parents May Do Better Than Their Peers' . Here's the link: http://www.time.com/time/health/article/0,8599,19…
88. John | June 14, 2010 at 2:54 am

What'd'ya' know, there's a Kaylan calling the study biased and offering as rebuttal information from N.A.R.T.H.
89. Straight Grandmother | June 9, 2010 at 3:40 am

What to make of the absence from Judge Walker of any questions about Political Power?
90. Straight Ally #3008 | June 9, 2010 at 3:52 am

Aside from the testimony of Mr. Blankenhorn, what evidence in the record supports a finding that same-sex marriage has or could have negative social consequences?

Wait…Blankenhorn presented evidence?

Makes me wonder if someone had the goods on his dependence of George Rekers' "scholarship" and that's why he made his little confession to the NYT.
91. Richard A. Walter (s | June 9, 2010 at 4:02 am

That is why I think this question was asked, SA #3008. NIce to see that I was not the only one who picked up on it.
92. Misken | June 9, 2010 at 4:16 am

You forgot the last question walker asked the defendants:

"What harm do proponents face if an injunction against the enforcement of Proposition 8 is issued?"

i'd like to see them answer that one 😀
93. John | June 9, 2010 at 4:23 am

Exposure as bigots!
94. Nick | June 12, 2010 at 11:51 pm

Just like tv cameras in the courtroom, heaven for bid their bigotry by recorded for all of time in an easily accessible format of soundbites and YouTube clips.

Much better if its just hidden away in monospaced court records and lost in a warehouse.
95. Ronnie | June 9, 2010 at 4:26 am

That's easy…Because "God" will bring wrath down onto the world….you know because its not the Legalization of Same Gender Marriage in the 8 other countries that anger's "God"….it's America….because apparently America is "God's country"……yeah ok……face in palms…<3…Ronnie
96. Straight Ally #3008 | June 9, 2010 at 4:28 am

Well, yeah, you should see Massachusetts! Human sacrifice. Dogs and cats living together. Mass hysteria!
97. John | June 9, 2010 at 4:28 am

There are those that claim the USA is specifically mentioned in the New Testament, I think in the book of Revelation. I imagine they would assert that this is clearly "God's Country."
98. Monty | June 9, 2010 at 5:29 am

Divorce rates skyrocket overnight, dogs and cats living together, fire and brimstone raining from the sky…nothing too dramatic.
99. Straight Grandmother | June 9, 2010 at 5:59 am

I think this is an easy question. Do you remember at the very very beginning fo the trial, I think it was opening sttements. Judge Walker asked the defendents the same question "how will you be harmed", and their honest answer was "I don't know" Does anyone else remember that? Apparently they don't have to have a reason. The burden of proof is on us. Legally they can simply say, "I don't know" But now by Judge Walker asking it once again I guess their answer was maybe not good enough for him and he is giving them a second chance.
100. Dolores Cordell | June 9, 2010 at 8:00 am

Yes! I well remember that because I almost choked on my coffee over THAT answer!!! It is The Question – in fact, the ONLY real question – and they couldn't answer it!

How on earth that "defense" team got to court is a mystery to me. Sometimes I wondered if they weren't there to throw the game!
101. JonT | June 9, 2010 at 6:02 am

1. God will send down another oil spill, or hurricane or something.

2. We will look like the nasty bigots we are.

3. All those icky gays walking around as if they were real people and stuff.

4. The Children! The Children!

etc, etc… 🙂 Couldn't resist.
102. Richard A. Walter (s | June 9, 2010 at 10:25 am

Yes, they will be harmed by actually having to come to the realization that we are real people, and that we have feelings, dreams, desires, hope, and fears just the same as they have.
103. JonT | June 9, 2010 at 11:19 am

@Richard: See – I've often wondered if they actually understand that. That we are 'real' people, with the same dreams and desires as everybody else. Maybe they do, and just don't care.

More likely, we are viewed as less than human by most of these crazy haters. A standard technique in conflict and 'war' – dehumanize your enemy. It's easier to kill them if they aren't really human beings after all. Ok, so the haters aren't actually talking about killing us (at least openly) here, but the song remains the same. The hate lives on.
104. Wade MacMorrighan | June 9, 2010 at 4:48 am

Hey guys, get THIS! One of Maggie Gallagher's constant memes in her desire to return is to a puritanical "marriage culture" is that marriage should be the only channel for sex! LOL!!!!
105. Ronnie | June 9, 2010 at 4:57 am

And how the eff is she gonna regulate that? put a gestapo in every home on every person in America and stop it?

: / …….Ronnie
106. Richard A. Walter (s | June 9, 2010 at 10:02 am

But then you have to have someone to watch the watcher so that the watcher doesn't have sex with the watchee.
107. Richard A. Walter (s | June 9, 2010 at 10:03 am

And what about MagPie's experience with non-marital sex? Doesn't she have a child that was born oow?
108. JonT | June 9, 2010 at 11:21 am

Not a gestapo Ronnie, that's so 20th century. More likely a priest or other 'spiritual' enforcer. 🙂

Wonder what old maggs is up to these days anyway.
109. Regan DuCasse | June 9, 2010 at 4:49 am

Children are not a requisite to qualify to marry in the first place.
So the #7 question is irrelevant.

Also, in adoptive and step parent homes, neither or one of the parents is the biological one. A situation that heterosexuals are in, same as a gay couple.
Which again, renders #7 irrelevant.

Whoever said that children do best with their biological, married parents…didn't compare them to the equivalent of gay parents.
Rendering question #7 irrelevant to the subject of GAY parents.

The point is, if a gay couple is to be treated equally and under the same standards as every other citizen, then procreation based discrimination is not only un Constitutional, it's not legal in the first place.

And the evidence shows, that gay couples whether parents or not, have no differences SO profound that justify discrimination.
Nor is there any risk that third parties are radically changed, if at all, to rationalize the discrimination.

This has been an exercise in the anti gay trying to make up what doesn't exist.
And using hyperbolic language such a 'radical' and 'destructive' to describe gay inclusion in the same FOUR basic marriage requirements.

Those four don't change at all really and ARE the same whether the couple is same or op sex.

1. To be of minimum adult age.

2. To be of competent consent to the marriage agreement.

3. To not be currently married.

4. To no be already closely related.

The last two requirements would be a matter of redundancy. Marriage makes two adults PRIMARY kin and custodian of the other. Excluding all other blood relatives of that primacy.

The state recognizes close kin and spouses IN LIEU already for inheritance and custody. So that marriage isn't necessary.

For the opposition to keep children front and center of this whole thing seriously demands that judges and legislators defy law.

Besides, considering how difficult , if not impossible it is to MAKE adults do the right thing by their spouses and children, it defeats the purpose altogether of KEEPING gay adults and parents FROM doing the RIGHT thing.

What a contradiction in terms to ban gay people from doing what they can't force heterosexuals to do by law.
110. Rebecca G | June 9, 2010 at 5:27 am

I love this question to the Defense:
#6 What evidence in the record shows that same-sex couples are differently situated from opposite-sex couples where at least one partner is infertile?

Another put up or shut up question about marriage being only about making babies
111. Straight Grandmother | June 9, 2010 at 6:05 am

Yeah! You tell 'em Rebecca!!!
112. Rebecca G | June 9, 2010 at 5:30 am

Oh, and #11 is really awesome too:

"Why is legislating based on moral disapproval of homosexuality not tantamount to discrimination?See Doc #605 at 11 (“But sincerely held moral or religious views that require acceptance and love of gay people, while disapproving certain aspects of their conduct, are not tantamount to discrimination.”).What evidence in the record shows that a belief based in morality cannot also be discriminatory?If that moral point of view is not held and is disputed by a small but significant minority of the community, should not an effort to enact that moral point of view into a state constitution be deemed a violation of equal protection?"

Yeah, I would really love to hear how they are not discriminating again me.
113. Straight Grandmother | June 9, 2010 at 6:11 am

Yes and I sincerly hate all people of the Jewish (insert any faith here you want) faith. I find it an abomonation to my TRUE faith and therefore I don't want anyone of the (name your faith here) to live in my apartment building. It is not that I am discriminating against Jews/Muslims/Budhists (again name your faith) i just morally do not approve of them, so I will cast my referendum vote against them. Golly Gee do I feel superior tee-hee!
114. Monty | June 9, 2010 at 6:15 am

I'm not a bigot. I just think other people don't deserve the same rights I have.
115. John | June 9, 2010 at 6:21 am

"It's not discrimination to treat different things differently!" – Saint Maggs

It's not disciminatory to treat gays differently than straights; they're different.
It's not disciminatory to treat blacks differently than whites; they're different.
It's not disciminatory to treat women differently than men; they're different.
It's not disciminatory to treat Jews differently than Christians; they're different.
It's not disciminatory to treat blind people differently than the sighted; they're different.

and so on and so on . . .
116. Monty | June 9, 2010 at 6:30 am

I've noticed that in most of the arguments against gay marriage, you can replace "gay" with "black," "interracial," or something similar, and it sounds like 50 years ago.
117. Straight Grandmother | June 9, 2010 at 6:33 am

Monty GREAT observation!!!
"I’m not a bigot. I just think other people don’t deserve the same rights I have."
118. Ronnie | June 9, 2010 at 6:35 am

You see Monty when you do that…that is Logic…..the anti-gays don't get it….they twist it to "being black is not a choice…gay is"

and I say…well religion is a choice,,,and there is no law that says what religion we have to follow in America….and be Gay is not a choice and you can't prove that it is or isn't

oh they hate that…..<3…Ronnie
119. Monty | June 9, 2010 at 6:39 am

Yeah, that whole "logic" thing always seems to be troublesome. I blame religion for teaching that skepticism is bad, questioning what you've been taught is bad, critical thinking is bad…just play follow the leader.
120. Straight Grandmother | June 9, 2010 at 6:42 am

@Ronnie, I have never thought about it that way. Yes Religion is a choice and it is protected from discrimination. You are right, what is this crap about being gay is a choice so it doesn't deserve protection from discrimination. I think you should bring that up as a question to Ted Olson tonight on the conference call at 6pm. Everybody is going to be on the call right? I hope I am not the only one.

You can sign up now and submit your question when you sign up. i submitted mine and i said that it was sent in by Straight Granmother. Ronnie you shoudl really ask this question of Ted Olson about religion being a choice that is protected. Maybe they can use that in answering the judge.
121. Rebecca G | June 9, 2010 at 6:43 am

They never use Facts because Facts have a Liberal Bias. LOL

Logic, Facts and Reasoning are Kryptonite for Right-Wing Bible-Thumpers
122. Monty | June 9, 2010 at 6:49 am

I have actually seen someone say "If the facts don't fit my hypothesis, I change the facts" with a straight face. It kind of scared me, honestly.
123. Monty | June 9, 2010 at 6:55 am

Found the conversation. Here's exactly what was said:
(debate about religion)
Me: "What if the facts disagree [with your position]?"
Him" Then I change the facts."
124. Ronnie | June 9, 2010 at 8:08 am

I don't know how to phrase the question….lol….<3…Ronnie
125. Richard A. Walter (s | June 9, 2010 at 10:34 am

@ Ronnie. There also is no law in this country that says we have to follow any religion at all! Throw that one at them and see how many gaskets burst into flames!
126. Richard A. Walter (s | June 9, 2010 at 11:04 am

@ Ronnie: Just say it like this–"If religious expression and practice, which IS a choice, is protected from discrimination under the law and the Constitution, then why is sexual orientation and gender identity, which are inborn traits and are NOT choices, not protected under the law and the Constitution?"
127. Ronnie | June 9, 2010 at 11:15 am

well i sent the Q in but the call is full or something…all well….next time…..Thanks for phrasing it for me dopty-daddy…lol…..I have a lot of screens on my comp open for diff. projects & my mind is all over the place……<3…Ronnie
128. Richard A. Walter (s | June 9, 2010 at 11:19 am

@ Ronnie–Glad to help. Ted Olsen is speaking right now. Have been told this is being recorded.
129. Richard A. Walter (s | June 9, 2010 at 10:31 am

Thank you, Straight Grandmother! You have put it so succintly . I am Jewish, but I was raised Protestant and have also gone through a Catholic phase, and I remember all the horror stories I heard about Catholics growing up. Only problem with that was that I actually met quite a few Catholics and found out they really weren't all that different from me. Each of us is different because we are all individual human beings, individual creations of G-d/Allah/the Higher Divine(insert your spiritual term here), and therefore, each of us is unique, even twins, triplets and other multiples, And yes, I can say that from experience because I went to school with several twins, six different families had twins in my graduating class, and you could tell who you were talking to by their personalities and other little things. These people are so afraid to seek out the commonalities and celebrate the differences that bring so much beauty into this world.
130. Straight Grandmother | June 9, 2010 at 6:33 am

I wonder where Kathleen is, I enjoy her psots so much.
131. Monty | June 9, 2010 at 6:42 am

This is the most comments I've seen on a single post in a long time. Quite a popular topic, it seems.
132. Straight Grandmother | June 9, 2010 at 7:08 am

Early on, in this website we used to regularly get like 250 – 300 comments on a topic. I think we all kind of pulled back as the main purpose of this website has been the trial and not a lot was going on with the trial. I hope now tha there is some action going on we can rev it up again.
133. Monty | June 9, 2010 at 7:10 am

Yeah, I remember the big posts during the liveblogging, but there hasn't been nearly as much traffic recently.
134. Straight Grandmother | June 9, 2010 at 7:16 am

Hey the 6pm Pacific time conference call with Ted Olson jsut got better! here is what they jsut e-mailed me-

This is just a reminder about the Courage Campaign Conversation with Ted Olson that you signed up for at 6 p.m. PT / 9 p.m. ET tonight (Wednesday, June 9).

In addition to Ted Olson, attorneys Theodore Boutros and Christopher Dusseault from the American Foundation for Equal Rights will also be joining us.

Everyone of us here should be on the call and let your friends and family knwo also. AND MOST Importantly DONATE!!! there is a topic on this in this forum, just look up the topics. lLok if me, a small olive farmer in provence France can squeeze out a donation then all of you can also, come ON PEOPLE!!!!!!!
135. Dave P. | June 9, 2010 at 9:27 am

Darn it, I'll be stuck on the freeway at 6 PM without a hands-free phone so I can't be on the call tonight. Aside from the main purpose of the call, it would have been great to hear from and speak with some of the posters here during the call. Oh well, you guys & gals please take notes and tell us all about the call tomorrow, OK?
136. AB | June 9, 2010 at 8:47 am

In addition to Number 2 for the defense, the Judge asked this in Number 3:

The court has reserved ruling on plaintiffs’ motion to exclude Mr Blankenhorn’s testimony. If the motion is granted, is there any other evidence to support a finding that Proposition 8 advances a legitimate governmental interest?

Is that an important question? Does it (taken with number 2) indicate that Blankenhorn's testimony may be thrown out? If so, how much easier does that make our case?
137. Monty | June 9, 2010 at 8:51 am

I don't know, I thought his testimony helped our case if anything. I'm not entirely convinced he wasn't secretly a double agent.
138. Straight Grandmother | June 9, 2010 at 9:03 am

I'm not sure of the answer. The only thing about Blankenhorn is, not only was his testimony taken but he based his testimony on a bunch of research (crappy research, not peer reviewed articles). If Blankenhorn gets tossed then all those books and articles he refered to also get tossed, so I would think that would be a good thing.

The only one on their side who presented any "evidence" was Blankenhorn so if he is tossed then they have only the infamous Dr Tam (I believe in NARTH, Tam) and he only testified under protest, he didn't even want to be there. They literally have absolutly nothing, nada, zip, if Blankenhorn gets tossed. Boies decimated him and showed him to be non credentialed and should not be accepted as an expert witness. Judge Walker said that he would allow him to testify and might just "weigh" his testimony as not coming from an expert, or he said he may toss him altogether. It will be ineresting to see how the Judge deals with Blankenhorn.
139. Monty | June 9, 2010 at 9:04 am

That's reason to make me think it might be better to keep him, though. If we throw out their only "evidence," it'll be easier for them to cry foul on appeal.
140. Straight Grandmother | June 9, 2010 at 9:12 am

Monty, what makes you think that? They had just as much time and opportunity to bring forth watever experts they wanted to as our side had. I think it was 2 of their experts dropped out becasue they thought they would be filmed. When the Supreme Court said no filming their experts could have easily came back. They didn't though because under discovery (Pre Trial Depositions) when they testified they got creamed by our side.
I remember Blankenhorns credentials from the trial, I read all the transcripts, he is NOT qualified as an expert by any yardstick. I think Judge Walke is going to toss him, just my humble opinion.
141. Monty | June 9, 2010 at 9:15 am

Maybe I'm just being pessimistic, and don't want to take any unnecessary risks when all he really brings is uninformed opinions and discredited research.
142. Bill | June 9, 2010 at 9:56 am

This all seems like SO much work for heterosexuals to go through so that they can prove to themselves once and for all that they are better than the LGTB children they created.

I feel sad after reading this. And tired. So tired.

My soul and spirit have been forever damaged by Proposition 8.

So I guess heterosexuals were successful after all.

I ca no longer pretend that this was about anything other than that.
143. Straight Ally #3008 | June 9, 2010 at 3:11 am

Bill,

If it helps, my perception of this whole extended affair is that it is part of the Religious Right's constant quest for power in the United States – they will play on religious beliefs and fear of "the other" even in the face of inevitable defeat, squeezing out every last penny of donations in the process. Like master Prop 8 propagandist Frank Schubert admitted, straight people in California didn't really care about same-sex marriage, so they had to make it seem threatening (to kids, mostly) for people to vote against it. They will use the fight against marriage equality to rally their troops even when some of their leaders are gay themselves (see Ted Haggard, George Rekers). For some of them, spite motivates them as well – they may truly enjoy hurting other people, typically a sign of their own raging insecurities – but above all, this is a power play.
144. Bill | June 9, 2010 at 3:27 am

When a human being walks into a voting booth to assume complete power over another human being's life, I would say that those walking into the voting booth to do so have a lot of explaining to do to their fellow citizens that they are attacking.

I am beginning to wonder why gay people even stay in America. There are better countries for us to live in. Of course, there are worse as well, but America is at the forefront of discriminating against its gay citizens, and then exporting that discrimination to other parts of the world.

America does not deserve us. Does not deserve our talents, our intelligence, our compassion, and certainly not our sympathy.

America is damaging MILLIONS of its citizens while people watch and chuckle and preach that we deserve it.

America the beautiful???? For who, exactly?
145. John | June 9, 2010 at 3:28 am

Hurting others in the name of God is good, though.
146. Monty | June 9, 2010 at 3:40 am

"Love your neighbor as yourself.

…as long as he (not she) worships me in the same way as you do, has light skin, and isn't gay. Otherwise, screw 'em."
147. Straight Grandmother | June 9, 2010 at 5:47 am

Bill, hang in there soon, very soon, your spirit will soar. You will be pumping yoru fist in the air, soon Bill soon.
148. Straight Ally #3008 | June 9, 2010 at 6:34 am

I know I've cited this study before, but it bears repeating. The trends are not just among the young; they represent an average shift in attitudes. Change is coming, it is marching on.
149. Dolores Cordell | June 9, 2010 at 7:56 am

And while China, India and other countries focus on new technologies and science, our society carelessly and cruelly flings away treasure and people (e.g. DADT) for what should be a total non-issue.

One wonders how on earth the relationship between 2 people who love each other could have any impact on another couple or society. Boggles the mind.
150. Monty | June 9, 2010 at 7:59 am

At the risk of invoking Godwin's Law, I'm reminded of World War II, where one of the factors in Germany's loss was Hitler's policies causing a lot of their top scientists and other great minds to leave and work for us instead.
151. Richard A. Walter (s | June 9, 2010 at 10:07 am

Yes, and yet, Physicians for Human Rights has found yet another correlation between us and the Nazi regime. turns out that the previous administration was performing medical experiments on their torture victims.
152. Richard A. Walter (s | June 9, 2010 at 10:59 am

Actually, Delores, I was in a conversation here on a much earlier thread with a woman who told of a straight friend being part of the wedding when she and her wife got married. She reported that her straight friend was so moved by the ceremony that she went home with a renewed commitment to her own marriage. That is how the relationship of two people in love can impact another relationship. I have friends in my own circle who have told BZ and me more than once that seeing us be able to get married would actually give them the feeling that they were even more married.
153. Straight Grandmother | June 9, 2010 at 12:14 pm

Boo-Hoo they didn't ask my question on the phone call. Oh well there were other good questions. Mainly what I got out of the call was that our lawyers feel real sure we are going to win with Judge Walker. They did not hedge at all. There was no CYA going on, they totally feel they proved the case and in fact the 2 experts the defense put on made statements that also was supporitng our position. They are going to have another call after the closing arguments.
154. JonT | June 9, 2010 at 12:17 pm

Do you know if an audio recording will be available? I'd love to hear that…
155. Richard A. Walter (s | June 9, 2010 at 1:18 pm

@ JonT–They said the audio will be available online at equalityontrial.org and couragecampaign.org.
@Straight Grandmother. I'm sorry your question did not get on. I think I was the last one they got to tonight. I hope you get to ask one when they do the next call. You always have such good insights. By the way, we have had to change our wedding plans here. We will be going to Washington, DC instead of Connecticut, partly because the Jewish ceremony we were supposed to go to PA for BZ to conduct is being postponed thanks to the US Navy and the orders they gave to the young couple. They have gotten their legal wedding out of the way, but they are holding off on the Chasunah until Nikki is off the Reagan. And it will take us two trips. According to the DC Marriage website, they are currently running 8-10 weeks behind, so we will have a date once we finish the legal name change here and make our first trip to DC.
156. JonT | June 9, 2010 at 1:28 pm

@Richard – thanks for the info – I'll keep an eye out for it.

I had also thought you were already married (referring to your SO as 'husband' in a few posts.)

At any rate, congrats and good luck!
157. Kathleen | June 9, 2010 at 4:25 pm

Glad to hear there will be a recording. I was supposed to be on the call, but had another "lost day" today – frakkin' Lyme disease.
158. JonT | June 9, 2010 at 4:42 pm

…frakkin’ Lyme disease.

Ouch – that's treatable isn't it? (According to Lord Google).

Get well!
159. Kathleen | June 9, 2010 at 4:53 pm

Don't want to get off on a long tangent, so I'll make answer re: Lyme Disease brief… it's quite treatable if caught early and adequately treated form the beginning. However, I'd had it for years before getting an accurate diagnosis. As a result, I'll may never be fully cured, though I continue trying lots of protocols. In the meantime, some days are better than others. It's the reason I don't practice law.

btw, JonT, are you on facebook, or is there another way we can exchange contact info without publishing it on a public board?
160. Shun | June 9, 2010 at 5:27 pm

That's great on the recording! Anybody know when?

@Richard – I didn't quite understand what the problems are (BZ? why the Navy?) but hopefully your date will be set soon. And, congrats! 🙂
161. JonT | June 9, 2010 at 5:56 pm

@Kathleen: Sorry to hear that.

No – I have never indulged in the facebook/myspace stuff – don't really trust it, privacy-wise 🙂

You can email me at [email protected] for the time being 🙂

Not sure I trust google either, but hey – at least their motto is 'Don't be Evil' 🙂

Ha! 🙂
162. Richard A. Walter (s | June 10, 2010 at 1:15 pm

@ shun–BZ is BenZion, my husband (even though we have not yet been able to make it legal). the reason the Navy is part of the change in our wedding plans is that the young lady who got married wants BZ to do her chasunah (Jewish religious wedding) because he has been the family's rabbi for longer than anyone cares to admit. However, she is currently on the USS Ronald Reagan and is out of port from what we understand. Her husband is still in Sicily at his US Navy duty station. We were going to go to Connecticut for our wedding after doing Nikki and James's chasunah in PA. However, since the chasunah has been put on hold until both of them can be stateside and have some leave time, we will be going to DC and making two trips approximately 8-10 weeks apart. Yes, they are that far behind on scheduling weddings in DC since granting marriage equality in March. As far as the name change, there is a clerk of superior court here who is trying to deny it based on a previous name change I did in 1994 to go back to my birth name. But since we now have one of our legislators here in NC on our side after explaining the situation to him, I feel more confident about it. But there will be pictures both on my blog and also on my FB page. And I am getting ready to enmter us in Potttery Barns Ultimate Dream Wedding Registry sweepstakes. I will post the relevant information on FB and in the blog about that. Wouldn't that be something if a same-sex couple won PB's contest on the heels of a same-sex couple coming in second in crate & Barrel's?
163. Richard A. Walter (s | June 9, 2010 at 1:33 pm

WE refer to each other as husband all the time, because in our hearts we are already married. We are just waiting for everything else to fall into place for the legal status of it. We never liked the term partner, because that made our relationship sound like it was a business office. Thanks for the congratulations. And yes, there will be pictures of both the legal wedding and our chasunah as each one occurs, and they will be posted both on my WordPress blog, and also on my FB page.
164. Kathleen | June 9, 2010 at 2:21 pm

UPDATE
It's official – Walker has denied the media request to broadcast closing arguments. http://www.scribd.com/doc/32808427/Doc-682

p.s. Sorry I've been absent today. I hope to return tomorrow to engage in the dialogue and report on the movie 8:The Mormon Proposition.
165. JonT | June 9, 2010 at 4:19 pm

Hi Kathleen!

…Walker has denied the media request to broadcast closing arguments.

Can't say I'm really surprised. 🙁
166. Kathleen | June 9, 2010 at 4:22 pm

Hi JonT. Nice to see you. Yeah, can't say I'm surprised, but sure am disappointed.
167. Jon | June 10, 2010 at 6:34 am

Which may mean no more than he's eager to avoid even the appearance of partiality when giving a verdict in a controversial trial.
168. Kathleen | June 10, 2010 at 6:45 am

It may also mean that he doesn't want to risk yet another delay. If he had agreed to broadcasting, D-I's would have undoubtedly appealed.
169. Ed | June 9, 2010 at 3:35 pm

Ok, i know this is way off the subject…but…It really bothers me when people discriminate against someone who is hiv positive. Additionally, against someone who is dating a positive person (my partner is positive, I am negative, and have been together for 4 years now). That just really kills me….positive? yeah, but damn, they are still humans….ugh

sorry, had to vent a bit…
Ed
170. E. | June 9, 2010 at 4:18 pm

Does anyone know what happened with the search for dirt in the 'no on 8' emails? Are they still digging, and how long do they have to come up with their 'smoking gun'?
171. wj | June 9, 2010 at 5:09 pm

The real kicker is Both Sides #8, which makes the point that California law already requires registered domestic partners be given the same treatment as spouses. So, he asks, what are we talking about other than terminology? To which the answer is, yes but domestic partnerships don't have the same Responsibilities as marriages — which is probably why over half of them are heterosexual couples.

So the conservatives are essentially arguing that forcing people to NOT accept responsibilities along with their rights is a bad thing. Hmmmm…
172. Sagesse | June 9, 2010 at 11:46 pm

While waiting for last night's call to be posted, another interview with Ted Olson:
http://www.signorile.com/2010/06/ted-olson.html
173. Sagesse | June 10, 2010 at 12:02 am

The last line of Proponents' Q 11:

"If that moral point of view [moral disapproval of homosexuality] is not held and is disputed by a
small but significant minority of the community, should not an effort to enact that moral point of view into a state
constitution be deemed a violation of equal protection?"

In the Prop 8 vote, if moral point of view is the issue, the 'small but significant minority' could be read, not as just the LGBT citizens being discriminated against, but as all 48% of the voters who voted No.
174. Monty | June 10, 2010 at 6:52 am

Yeah, I'm not sure "small" is the right word to use there.
175. Felyx | June 10, 2010 at 6:55 am

As I read these questions I can't help but to want to read into them. It seems to me that the questions put to our legal team are focusing on building upon our arguments and shoring up a few weak areas. Some of the questions even seem to be designed to allow our team to expand upon the excellent arguments put forth and to strengthen our case even more. One question even seems to be prompting us to preempt an eventual showdown with DOMA!
In all the questions for the Plaintiffs seem as if they are encouraging the legal team to work harder to create an even more dynamic case…quite positive in my opinion.

Reading the questions as put forth to the defense, it seems to me there is a very different feel about them…if I were to paraphrase a message being sent it would sound something like this:

"Your entire legal argument sounds somewhat…lacking…and we are seriously considering throwing out your only witness. Please rebuild your entire case again with the tiny bit of evidence you still have available. You have one day to present it. Good luck."

just my happy homo ranting. Felyx ;`)
176. Monty | June 10, 2010 at 7:07 am

I'm reminded more of that guy from Pink Floyd's The Wall shouting "Wrong! Do it again!"
177. James Tuttle | June 10, 2010 at 9:23 am

The audio from last evenings conference call with Ted Olsen and others is available here
http://www.couragecampaign.org/action/484/listen-…
178. James Tuttle | June 10, 2010 at 12:30 pm

After listening to the conference call, I have a question for the legally minded here: If we win and an injunction is granted by Judge Walker, what is the likelihood that the injunction will be reversed by a higher court? Another note, for anyone who hasn't listened to the conference call it is VERY informative and I'm amazed at how eloquent the people fighting for us really are…I highly recommend giving it a listen. =-)
179. JonT | June 10, 2010 at 12:40 pm

Yes, I just finished listening to it as well about 20 minutes ago. I thought it was very interesting and I too recommend giving it a listen.

I am not legally minded, so please feel free to ignore my opinion, but based on the 'evidence' I've read so far, and the conversation in the conference call, it seems highly unlikely it would be reversed by anything other than the supreme court.

That remains a very real possibility given it's makeup – IMO only.
180. Kathleen | June 11, 2010 at 3:16 pm

@James, if we win and Walker issues an injunction to stop the enforcement of Prop 8, you can bet that Proponents will ask for a stay, pending appeal. A stay would temporarily stop the injunction (that is, allow Prop 8 to remain in effect) without actually reversing it. Only an actual ruling from a higher court could reverse the injunction.

I think it's likely a stay will be granted, only because in cases like this, there is a tendency to maintain the status quo while the case is appealed. But that's just my opinion and I've been wrong before. I hope I'm wrong here. I'd love to see marriages take place this summer.
181. Dan Hess | June 10, 2010 at 1:51 pm

I especially like the combination of Plaintiff #12 and Defendant #6. If our side argues effectively that an attempt to legislate private morality has a major bearing on the case, then there's no way for the other side to answer question 6 (what evidence in the record shows that same-sex couples are differently situated from opposite-sex couples in which at least one partner is infertile?). The ONLY way for them to answer that is with the Christian "intrinsically ordered for/against procreation" bullshit. Yay for Catch-22s.
182. Vaughn Walker’s Que&hellip | June 10, 2010 at 1:53 pm

[…] 10, 2010 · Leave a Comment Paul Hogarth goes point by point through several of the questions. via […]
183. Top Posts — WordPre&hellip | June 10, 2010 at 5:15 pm

[…] Judge Walker’s Questions for Closing Statements By Paul Hogarth Today, Judge Vaughn Walker delivered a series of 29 questions (12 to plaintiffs, 12 to Prop 8 […] […]
184. Sagesse | June 10, 2010 at 10:45 pm

Editorial from today's New York Times
http://www.nytimes.com/2010/06/11/opinion/11fri1….
185. Sagesse | June 10, 2010 at 10:50 pm

AFER's Press Conference call with Boies and Olson, yesterday
http://www.equalrightsfoundation.org/media/videos…
186. Sagesse | June 11, 2010 at 12:02 am

I hadn't listened to this when I posted it. It's an hour long, but very powerful, and well worth the time. Particularly where David Boies calls the defence argument ('marriage is between a man a woman' repeated in an endless loop)

A BUMPER STICKER.
187. Kathleen | June 11, 2010 at 2:57 am

Thank you So MUCH for posting this. I realize now THIS is the conference call Chad Griffin was referring to when he asked if I was going to be on the conference call. I thought he meant the courage campaign one. Wish I'd realized… but great to listen to it.
188. Kathleen | June 11, 2010 at 4:05 am

I recommend everyone listen to this press conference call. It answers many of the questions that have been asked here.

In particular, they make it clear that if California overturns Prop 8 by voter initiative, the case will be moot at that point. However, they also make the point that the case will not have been a waste, as it will have created a strong evidentiary record that will be useful in other cases challenging other states' prohibitions against same sex marriage.
189. tony | June 13, 2010 at 4:42 am

Despite the one-sided editorial on the Judge's questions, it doesn't look good for those who oppose prop 8. Why? Because, now the "legal" arguments, as they ought to, are finally displacing the emotional fomenting that has characterized the anti-prop 8 viewpoint all along. I said from the start a fundamental right has to pass the Glucksberg test; and it doesn't, even if Walker things he can create an exception to Gluksberg that heretofore did not exist. Succinctly, gay marriage has not been, and is not a "fundamental" right. It's time for gays to join the democratic process and accept the will of the people expressed over and over again. Stop invoking the memory of The Reverend Martin Luther King Jr., who never condoned gay marriage or lifestyle, and would not have; stop invoking the civil rights struggle and women's suffrage and miscegenation as a means to bootstrap their "lifestyle" issues to major historical events which are wholly inapposite to misguided notions of a "fundamental" right to gay marriage. Or move to the states where cowardly legislatures crush under the pressure of the relentless well-monied, and power hungry, underground local and national gay political machines that will take a win any way they can. Move on. Move on.
190. John | June 13, 2010 at 5:40 am

Walker's questions are a "one-sided editorial," eh?

The loaded words in your statement like "misguided," "cowardly," "relentless," and "power hungry" shows that you very much favor "one-sided editorial[s]." Or do you favor them only for yourself?

Loving vs. Virginia and Amendment XIX of the U.S. Constitution would have failed the Glucksberg test, if you were to apply it the same as you wish to see it applied to same-gender marriage.

Miscegenation was far from “objectively, deeply rooted in this Nation’s history and tradition,” and certainly not “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.” Blacks hadn't the right to marry whites before. Their liberty was not infringed upon as they still had the right to marry, they simply had to marry within their own race.*

Similarly, women's suffrage would also fail, as the right of females to vote was neither “objectively, deeply rooted in this Nation’s history and tradition,” nor “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.” Women didn't have the mental capacity to understand politics; therefore, giving them the right to vote would put the liberty of all at risk, as women are not rational beings and would likely make dire mistakes in the voting booth.*

*Yes, I'm playing Devil's Advocate.
191. Richard A. Walter (s | June 13, 2010 at 10:41 am

So you think that those who do the right thing are cowards? What about those who cave in to the pressure to legislate one denominations religious viewpoint into law, regardless of how other religions feel about it? They are the real cowards. This country was founded on religious and civil freedoms. From the tone you are taking, I guess your next target would be women's rights, since it is a known fact that those who are homophobic and want to see us continue to be oppressed are also misogynists who think that the sole purpose of women is to be barefoot and pregnant their entire childbearing years, and that men have the right to beat women into submission. That being said, which of your rights do you want put up to a vote, tony?
192. JonT | June 13, 2010 at 2:27 pm

@tony: Because, now the “legal” arguments, as they ought to, are finally displacing the emotional fomenting that has characterized the anti-prop 8 viewpoint all along.

I don't think you've been following the same trial I have. The 'legal' arguments are looking pretty good for us, IMO.

Indeed, I think the 'legal' arguments have finally been displacing the religious fundamentalist fomenting that has characterized the pro-h8 viewpoint all along.

Succinctly, gay marriage has not been, and is not a “fundamental” right.

In a sense you are right – but then black people being able to marry white people was never a 'fundamental right' either… What point are you trying to make?

It’s time for gays to join the democratic process and accept the will of the people expressed over and over again.

And yet here we are… funny how that democracy thing works huh? 🙂

stop invoking the civil rights struggle and women’s suffrage and miscegenation as a means to bootstrap their “lifestyle”

Why not? It's true! Civil rights are civil rights. There are many parallels. Who the hell are you to tell me who I can marry? Why do you care?

BTW: love the scare quotes around 'lifestyle' and other 'key' terms. You aren't 'Kay' (a previous poster) are you? You remind me of her/him/it. Kay used to love the scare quotes. I miss her.

Or move to the states where cowardly legislatures crush under the pressure of the relentless well-monied, and power hungry, underground local and national gay political machines that will take a win any way they can.

You mean that "democracy" thing you were mumbling about earlier? Haha 🙂
193. Judge Wants Closing State&hellip | June 13, 2010 at 11:35 am

[…] an update from Paul Horgarth in Proposition Eight Trial Tracker: By Paul […]
194. Judge Wants Closing State&hellip | June 13, 2010 at 6:30 pm

[…] an update from Paul Hogarth in Proposition Eight Trial Tracker: By Paul […]
195. Straight Grandmother | June 13, 2010 at 8:39 pm

Bushels of gratitude to Rob Reiner and is wife Michelle Singer, they were the ones who started this, they hired Olson & Boies and put up the first money which in any campaign is the most important money. This community owes Rob & Michelle an enormous debt of gratitude. I can't wait for Wednesday and hopefully a decision, an iron clad written decision that will stand all the way to the Supreme Court. We are so lucky to have Chief Judge Vaughn Walker judging. I am mentally not prepared for a decsion of "Denied" , it has to be "Granted", it just has to.
196. JonT | June 13, 2010 at 9:58 pm

Amen SG.
197. JonT | June 13, 2010 at 9:57 pm

[…] hey Paul Hogarth […] Stop plugging your blog here! Either say something useful, or fuck off please.
198. Judge Wants Closing State&hellip | June 13, 2010 at 11:20 pm

[…] questions for closing arguments this coming week.Here’s an update from Paul Hogarth in Proposition Eight Trial Tracker:By Paul HogarthToday, Judge Vaughn Walker delivered a series of 29 questions (12 to plaintiffs, 12 […]
199. Mandy | June 15, 2010 at 8:22 am

At this point all we can do it either hope or pray (if you pray) that the legal system gets this right.

I have to wonder though if Court strikes down prop 8 will there be stay on the ruling. I thought someone went through that legal analysis but I cannot find it (lots of comments go through).

Also even if prop 8 is upheld or it is struck down but still stayed, there is still the matter of the thousands of homosexual marriages that took place and are still considered legal. Those marriages are throughout the state and are valid. Their validity will start to change the laws as the family code will now have to adopt and make changes to make room for heterosexual and homosexual marriage. Their children (if they aren't already) will go to school and be integrated with children from all types of relationships (even those who come from no relationship at all) which will be included in the way the schools teach their students. The schools will change their forms to say parent instead of mother or father because the parents (no matter what their gender is) are married.

One thing I have learned and seen is that love cannot be stopped. Love will conquer all. That is my mantra every day that I pop on to this website and watch good people fight the right fight.
200. Richard A. Walter (s | June 15, 2010 at 10:38 am

There are also some of those 18,000 couples here in North Carolina, Mandy. that is one of the reasons we are watching this case so closely here.
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