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Press builds before closing arguments


By Julia Rosen

Win or lose this trial has done one thing very well, bring attention to the fight for marriage equality. That is one of the best ways to turn the tide of public opinion and that’s exactly why the defense fought so hard to keep cameras out of the courtroom.

These articles, in three of the biggest papers in the country never would have existed if this trial was not occurring and may not have gotten this high of a profile without the involvement of Ted Olson. Here is the WaPo talking about a recent address he gave to law students at his firm:

But then Olson took the microphone, and began to describe his crusade to overturn California’s Proposition 8 and establish a constitutional right for same-sex marriage. The two gay families he represents are “the nicest people on the planet.” He believes to his core that discrimination because of sexual orientation “is wrong and it’s hurtful, and I never could understand it.” He knows some worry that the lawsuit is premature, “but civil rights are not won by people saying, ‘Wait until the right time.’ ”

This fight, Olson told the law students gathered on a spring evening in the luxe D.C. offices of his firm, Gibson, Dunn and Cruthcher, “is the most compelling, emotionally moving, important case that I have been involved in in my entire life.”

Standing O. Another jury persuaded

Ok, so they were gay law students. Maybe Olson didn’t persuade them of anything other than the fact that he is sincerely committed to this case and equality. It isn’t about those students really, it is an article in the Washington Post about one of the biggest conservative legal minds wholeheartedly advocating for gay people’s rights.

This was in the Wall Street Journal over the weekend, with a picture from our Testimony re-enactment with Marisa Tomei and Josh Lucas.

Messrs. Olson and Boies said they will argue that their witnesses’ testimony established that gays are harmed by being denied marriage and that the institution wouldn’t be hurt by extending it to same-sex couples. “When you put in your constitution a classification that puts some people in a category that are not entitled to fundamental rights, you are making discrimination institutionalized in its highest form,” Mr. Olson said this past week.

The 29 questions Judge Walker issued this week suggest skepticism towards both arguments. He asked the defense to prove that gay marriage harms society, and to show how prohibiting gay marriage furthers a state interest in having children raised by their married biological mothers and fathers.

Judge Walker also challenged plaintiffs to provide “empirical” evidence that not being allowed to marry harms gays and lesbians. He also asked how the court could find Prop 8 to be unconstitutional without also taking up the federal Defense of Marriage Act.

We heard on our call with Olson, Boutrous and Dusseult that they will also be submitting written responses to the judge’s questions, in addition to addressing them during their closing argument.

Over at the NYT Frank Rich continues to play whack a pinata with Blankenhorn. He impressively goes from the Supreme Court ruling on television to Reker’s Rent Boy in the space of a couple lines.

When the former Bush v. Gore legal adversaries, Ted Olson and David Boies, teamed up to mount the assault on Prop 8, it was front-page news. But you may not know much about the trial that followed unless you made a point of finding out as it unfolded in January. Their efforts in this case, unlike the 2000 election battle, were denied the essential publicity oxygen of television. The judge had planned to post video of the proceedings daily on YouTube, but the Prop 8 forces won a 5-to-4 Supreme Court ruling to keep cameras out.

Their stated reason for opposing a television record was fear that their witnesses might be harassed. But in the end the Prop 8 defenders mustered only two witnesses, just one of them a controversial culture warrior. That “expert” was David Blankenhorn, president of the so-called Institute for American Values. Blankenhorn holds no degree in such seemingly relevant fields as psychology, psychiatry or sociology. But his pretrial research did include reading a specious treatise by George Rekers, the antigay evangelist now notorious for his recent 10-day European trip with a young male companion procured from And Blankenhorn’s testimony relies on the same sweeping generalization as Rekers — that children raised by two biological parents are so advantaged that all alternatives should be shunned.

What was the unqualified Blankenhorn doing at the Prop 8 trial? Like Rekers, who had a lucrative history of testifying for pay in legal cases attacking gay civil rights, he also profits from his propaganda. Public documents, including tax returns, reveal that Blankenhorn’s institute, financed by such right-wing stalwarts as the Bradley and Scaife foundations, paid him $247,500 in base salary in 2008, the most recent year for which data is available, and another $70,000 to his wife. Not a bad payday for a self-professed arbiter of American marital values who under oath described his sole peer-reviewed academic paper (from the University of Warwick) as “a study of two cabinetmakers’ unions in 19th-century Britain.” That the Prop 8 proponents employed him as their star witness suggests that no actual experts could be found (or rented) to match his disparagement of gay parents.

Brutal, right? Frank Rich sure knows how to tear into someone.

The reality is that the Prop 8 supporters are resting their legal case on the plaintiffs not proving theirs. They did little to support their experts claims and it’s likely that their witnesses were a net negative for their side. This of course will be exposed during the closing arguments. Blankenhorn in particular self-destructed and ended up proving several points for the Olson/Boies team. He is now quickly becoming a laughingstock and a punchline to a joke.

That is likely why he was so insistent on trying to clarify the record by admitting that he lied to the New York Times. Given the track record of anti-gay zealots he is lucky that he wasn’t writing to defend his straighthood.

But I digress.

Only a few days to go until closing arguments. I for one am excited, as I am sure all of our loyal readers are. But do the cause a favor on Wednesday, when you tune in to the liveblogging, be sure to invite a few friends. It is only by speaking and writing about this trial that we gain points in the polls and increase our chances in the court.


  • 1. Bob  |  June 14, 2010 at 3:10 pm

    Finally, that's the main stream media, touch down, get it into everyones living room,

  • 2. Ronnie  |  June 14, 2010 at 3:21 pm

    live blogging…. lets get it on…

    BLANKenhorn is filled with so much win (sarcasm)….<3…Ronnie

  • 3. Kathleen  |  June 14, 2010 at 4:55 pm

    It just occurred to me that it would be fun to follow closing arguments with others. Anyone in L.A. want to get together somewhere to be glued to our 'puters as a group?

  • 4. Dpeck  |  June 15, 2010 at 1:29 am

    Hi Kathleen,

    Distance and work schedule make it impossible for me, but that would be wonderful to be able to thank you in person for all you have been doing for us. So I'll just do it here – Thanks so much for everything, Kathleen.

  • 5. Lesbians Love Boies  |  June 15, 2010 at 5:09 am

    Does anyone know what time the festivities start tomorrow? I plan to be glued to my computer and don't want to miss a thing!

  • 6. Kathleen  |  June 15, 2010 at 5:24 am

    They're scheduled to begin at 10 am PDT. Here is the full schedule:

    Administrative defendants (Governor, et al) have just informed the court that they waive closing argument, offering no opinion as to how their time should be allocated.

  • 7. Jeremy  |  June 14, 2010 at 5:47 pm

    Perhaps I'm getting ahead of myself and its normally bad form to get cocky, but looking at the team we have, and the line of people giving infomormation, and what the conservative right have formed, why do i get the feeling we are going to destroy them in court. This feels very similar to the case they had when the christian right were trying to force creationism down everybodies throat.

  • 8. Bolt  |  June 15, 2010 at 2:21 am

    That feeling you have, that prop 8 proponent's arguments will be destroyed in court, is a cognitive connection to reason. I would expect all of us to be feeling it. There isn't any reason for the proponents to win in this federal arena of law.

    If a judge does side with them, they'll be required to provide evidence to back up their finding, and the evidence is in. They don't have any. They haven't got a prayer.

  • 9. Bob  |  June 15, 2010 at 2:27 am

    yes I'd say we're a bit cocky, and it always brings you back to reality to read the blogs from the other side,

    Judge Walker did say that his ruling will of course not be final, because this case will be going on to a higher court, wonder who's side that will favor.????????

    It does give him an out, in a sense, and we do know that if we loose we'll still march forward, but if the Church (basically that's our opponents) loose, it may give them pause to cosnider wether to finance more court costs?

  • 10. Richard A. Walter (s  |  June 14, 2010 at 9:13 pm

    I will be sure to post this on my FB as well as sending out email invitations. And I will be here all day tomorrow keeping up with the live blogging.

  • 11. Sagesse  |  June 15, 2010 at 12:46 am

    When I read the Washington Post article online, I missed completely that it was on the FRONT PAGE. Impressive. Belatedly hoping someone actually reads the print edition :).

  • 12. Sagesse  |  June 15, 2010 at 1:23 am

    Sidetrip to DADT.

    Gen. James Amos, Marine aviator, in line to become next Corps commandant

    … replacing Conway. No indication in the article where he stands on DADT, but it will no doubt come out in confirmation hearings.

  • 13. Richard A. Walter (s  |  June 15, 2010 at 1:33 am

    Perhaps this is Gates' way of bringing the USMC into the 21st century. And if his stance on DADT is anything like his stance on PTSD, he is the polar opposite of Conway.

  • 14. Dave  |  June 15, 2010 at 2:47 am

    Olson and Boies are getting out in front of the press quite a bit in the last week. But where are Cooper, Pugno et al? Other than an occasional quote here and there, they seem to be awfully quiet right now. Has there been much blogging or chat about what the Yes on 8 is thinking, feeling right now? I haven't seen much from them.

  • 15. Ronnie  |  June 15, 2010 at 4:31 am

    Maggie announced that she was going to be at the closing arguments….I saw it on the destroy(i mean protect) marriage FB page….they are saying "God" will prevail meanwhile "God" struck down with lightning a giant Jesus statue at a Christian church in Ohio

    hmmm…interesting…. : / …..Ronnie

  • 16. Bolt  |  June 15, 2010 at 5:33 am

    She can't be there. The seats aren't wide enough.

  • 17. JC  |  June 15, 2010 at 6:10 am

    Oh, Mr. Pugno (seeing as he's also campaigning for office now) is never far from a microphone. From today's NPR Morning Edition:

  • 18. Kathleen  |  June 15, 2010 at 3:02 am

    UPDATE: Plaintiffs have filed their written responses to Judge Walker's questions

  • 19. JonT  |  June 15, 2010 at 5:21 am

    Very nice Kathleen:) I am still reading them now (in tandem, where possible, since defendants didn't address plaintiff's questions 🙂

    I notice that the plaintiff's response is much more thorough and complete (even answering the defendant's questions.)

    I also liked the use of blankethorn's testimony in support of plaintiff's arguments 🙂

    Defendants keep talking about pro-creation and the continuance of the human race. I was not aware that legalizing ss marriage would prevent pro-creation and outlaw opposite-sex marriage, thereby dooming the human race to extinction.

    Much more to read.

  • 20. Sheryl  |  June 15, 2010 at 10:22 am

    JonT, you make too logical of an argument. The Yes on 8 side does not deal in logic.

  • 21. bJason  |  June 15, 2010 at 6:31 am

    I have said it before but it must be repeated- YOU ROCK!!!!

  • 22. Richard A. Walter (s  |  June 15, 2010 at 6:59 am

    Thank you, Kathleen. I have only just begun to read through this. I will probably have questions later. And yes, for brevity's sake, I will post them here. That way others who may have the same question or similar questions can get answers also.

  • 23. Kathleen  |  June 15, 2010 at 3:51 am

    UPDATE: Proponents (D-Is) have filed their written responses.

  • 24. Straight Dave  |  June 15, 2010 at 12:20 pm

    Thank you, Kathleen, for ruining my sleep tonight. 🙂 I cannot put either of these documents down. You have provided a great public service for all us ordinary folks. I do hope someone joins your blog party tomorrow.

  • 25. Straight Grandmother  |  June 15, 2010 at 4:02 am

    Dunno about you, but first I am going ro read the defendent intervieners responses.

  • 26. Kathleen  |  June 15, 2010 at 4:13 am

    Yes, in many ways I'm more interested in what D-Is have managed to hobble together. I'm reading what response each side has to the same question — comparing them side by side.

    Btw, if anyone want to refer to any documents cited in these responses, they can likely be found either at my Scribd account or at Justica:

    If not available at one of those two places, let me know and I'll make them available.

  • 27. Ronnie  |  June 15, 2010 at 4:22 am

    I'm still reading the answer to the first Q to defense…and I opened it as soon as Kathleen posted it….dear lord Gaga they are long winded & preachy….the first answer comes down to this

    1) 2 daddies or 2 mommies can't procreate so they can't get married…..oh for crying out loud
    2)Danny & Tony can't accidentally get knocked up…so they can't get married….face in palms
    3)The equal protection clause doesn't apply to homosexuals….ummmmm then don't tax us
    4) F.U. to the millions of children in orphanages
    5) "Tradition" of marriage….excuse me but whose "tradition"?…the 1st & 14th amendments protect ALL "traditions" not just yours…ugggg…don't tax us equal if you are not going to treat us equal… > ( …..Ronnie

  • 28. Lesbians Love Boies  |  June 15, 2010 at 4:29 am


  • 29. Kathleen  |  June 15, 2010 at 4:52 am

    I read the answer to the first Q to defense and was left with the impression that most of it could be used to justify Plaintiffs' claim.

    For all of these reasons, the Supreme Court has recognized that marriage is “ ‘the foundation of the family and of society, without which there would be neither civilization nor progress.'”

    Thus, “it seems beyond dispute that the state has a compelling interest in encouraging and fostering procreation of the race and providing status and stability to the environment in which children are raised. This has always been one of society’s paramount goals.”

    And just think how well these goals will be supported by embracing marriage equality!

  • 30. Lesbians Love Boies  |  June 15, 2010 at 4:38 am

    I still think this whole procreation thing is nuts. Heterosexual couples are NOT going to stop having sex and 'procreating' if Same Sex Marriage is enacted.

  • 31. Ronnie  |  June 15, 2010 at 4:47 am

    That's the irrational & illogical part….they are under the impression that all human life on Earth is going to cease to exist and die out if homosexuals can get married….sooo…umm….Gay people are still not procreating whether we are married or not…sooo…umm…because 10 or so % of the population can get married the other % is just going to die out?…ummm…I don't think the human race is anywhere near the point of dyeing out….face in palms…the anti-gays make humans look so dumb… : / ….Ronnie

  • 32. Straight Grandmother  |  June 15, 2010 at 9:47 am

    LLB, I think their response is a little more nuanced than that. What they are saying is, children are best raised by their biological mommy & daddy. It is in the states interest that we regulate marriage for the benefit of the children. Yes we know that old people who cannot concieve get married, and a spouce can be infertile and they can still get married but we know on prima facia evidence that two gays cannot produce a child so we will just say that the "intent" of hetrosexual marriage is to make babies and we are not going to regulate the hetros, but we will regulate the gays. They base their whole case on the state has a compelling interest in making babies, best described on Defendents page 23 starting in line 2. That and also, "Well it is just the way it has always been"

    It was this same repeated theory over and over adnauseum.

    I think our side hit it out of the ball park, like all the way to Mars. If we do not win I will be in shock.

  • 33. HunterR.  |  June 15, 2010 at 5:11 am

    Thank you for posting all these links, I was half way through, reading the defendants case and I really wanted to know what the proponents had to say and the link was here. Thank you again….
    Lets see if their team makes any rational arguments….I alredy know that answer after the trial!

  • 34. Kathleen  |  June 15, 2010 at 5:21 am

    @ HunterR, You're welcome. This has been my modest contribution to this historic event. I signed up for an email list that notifies whenever a new document is filed in the case. When I get notice of such, I acquire the filing through my Pacer account, upload to Scribd and post the link here and at the fb P8TT page.

    It's been gratifying to see how many non-lawyers have taken interest in reading these court filings and as a result, become even more engaged in the trial.

  • 35. Kathleen  |  June 15, 2010 at 5:16 am

    UPDATE: Administration Defendants (Schwarzenegger, Horton and Scott) have responded to one of the questions posed to Plaintiffs and Proponents (Question 12) and have waived closing argument.

  • 36. RW in LGB  |  June 15, 2010 at 5:35 am

    That's telling, isn't it?

    The Prop H8 proponents have taken every opportunity to slap me and my husband in the face and deny us our basic rights and basic HUMANITY. If and when we finally win this case, I will happily spit in the face of all the pro-Prop H8 people I ever find. Those religious-nutjob pigs.

  • 37. James Tuttle  |  June 15, 2010 at 5:35 am

    Very Interesting. JEEZE…the proponents response to Judge Walker's questions is looong and windy, but not very substantial. I'm really hoping if we win, that an injunction is granted and upheld. I really want to get married this summer/fall. =-)

  • 38. Straight Grandmother  |  June 15, 2010 at 9:52 am

    My sentiments exactly. If I were the Judge I would get ticked off to just have to read through repeating statements. I would be like "I get it I get it, you said this already, move on." Long winded but nothing there. It reminds me of the Fairy Tale of the Emperor who had on no clothes"

  • 39. Lesbians Love Boies  |  June 15, 2010 at 5:50 am

    I thought their closing arguments were a part of the Defendants. Learn something new every day. Although it looks like they were only given 15 minutes.

  • 40. Alan E.  |  June 15, 2010 at 5:41 am

    I have been reading mostly with RSS reader and have not been in the comments section. I have to give a lot of props to Kathleen for her efforts. I have received so much information and many documents through facebook. She's also answered a few questions when they've come up for me (she was also my first choice to ask them).

    As Elle Woods said, "Snaps for Kathleen!"

    On another note, I am still on the fence about trying to see the proceedings at the courthouse. I'm sure that I won't be getting much work done, but I surely need to be here to get at least a little completed in between F5's. I have a brand new keyboard, so January's "refresh marathon" won't matter tomorrow.

  • 41. fiona64  |  June 15, 2010 at 5:47 am

    I will not be able to make it to the courthouse tomorrow, but that's the way the old cookie crumbles. I will be following along here.


  • 42. Kathleen  |  June 15, 2010 at 6:05 am

    Alan, Thanks for the Snaps! I'd give anything to be able to be there but I can't afford a trip to SF, especially with no guarantee of getting a seat. Obviously, you need to decide for yourself but … I was invited to attend Bobby Kennedy's victory celebration at the Ambassador Hotel in June of 1968; I had other plans that night and decided I could see him another time. That decision has influenced my priorities ever since. Now, if given an opportunity to witness historic events first-hand, I try to make it happen.

  • 43. HunterR.  |  June 15, 2010 at 6:10 am

    I could not ready beyond answer to question #4 on prop 8 side. Their only circular notion is "blame the gays" ideology. They are oblivious to the facts. Are they solely relying on the procreation argument? Obviously they do not want to recognize OUR families; certainly they CHOOSE to ignore the fact that many kids are gay (repairative therapy?); that the large majority of individuals -gay and straight- are born from heterosexual relationships (married or unmarried).
    Certainly many kids have gay/lesbian biological parents, guess those kids do not deserve to be treated equally; what is next? I will imagine their proposal will be remove those kids from their biological gay/lesbian parents and place them in foster care? The way indigenous communities were destroyed in order to advance civilization?

  • 44. Straight Grandmother  |  June 15, 2010 at 9:57 am

    You wrote – "Are they solely relying on the procreation argument" my reply- yup 50 pages worth, over and over and over and over.

  • 45. James Tuttle  |  June 15, 2010 at 8:03 am

    I wish so much that I could be in L.A. tomorrow to have a browser party with ya Kathleen, is anyone going that you know of yet? I'll be stuck here in Fresno starting my first day on a new job, fun fun! I'll be living on my laptop before and after the orientation though. =-)

  • 46. Kathleen  |  June 15, 2010 at 10:37 am

    Nope. No takers. So I'll just be hanging out here in my living room, hitting the refresh key.

  • 47. Mandy  |  June 15, 2010 at 9:13 am

    Wow I am reading some of the defendant's responses and frankly I don't get their logic. Not to mention I still have to do my work and their "logic" is giving me a headache.

    I did want to comment on the whole idea of procreation and marriage. I think it is very important that marriage originally started out because of procreation. Actually I think marriage and procreation go hand in hand (it should not exclude other loving relationships because of it) but the idea that homosexuals can possible procreate actually encourage same sex marriage as a legitimate state interest.

    I think question #9 applies to this as well but I was just thinking that in California we try to uphold marriage more then paternity because it is state interest that the parents of the couple not only raise but also pay for any children that are borne from that relationship. For example a women has an affair the state would rather have the child be the issue of the married couple rather then the person who may have actually fathered the child because they state wants to protect families and not have to pay for the children of these relationships. If the couple splits up the state would rather have the husband pay for the child.

    Well in lesbian relationships you have one or both person who is impregnated by a third party (usually) isn't it in the state's interest to have the lesbian couple married therefore in case anything happens to the child and/or the couple the state does not have to pick up the bill for raising the child (assuming one parent abandons their parental duty to pay and take care of the children). Instead if the parents are allowed to get married the parents are on the hook for raising and paying for the child. If you don't have that presumption because the parents were never married there is a chance that one parent can take off and the state has to pay for the kid. For me that is a huge state interest in having same sex marriage.

    And since under the equal protection clause we can't have same sex marriage just for women we also need to have it for men as well. Isn't it in the state's interest to have same sex marriage valid instead of illegal. Therefore prop 8 is not advancing a legitimate state interest but instead quite the opposite.

  • 48. Alan E.  |  June 15, 2010 at 9:46 am

    Actually I think marriage and procreation go hand in hand (it should not exclude other loving relationships because of it) but the idea that homosexuals can possible procreate actually encourage same sex marriage as a legitimate state interest.

    O&B make a point that even if a child is conceived by a father outside of the marriage (woman and man #1 are married, but man #2 is the baby daddy), the baby daddy doesn't have rights over the child since it is recognized that the married couple are the rightful parents.

  • 49. Straight Grandmother  |  June 15, 2010 at 10:02 am

    Yes Mandy, you are correct. I am a grandmother and my daughter (not in California) is not and legally cannot be a parent to her own children born to her by her wife. So if my daughter in law dies the state could end up supporting them (would never happy but you know). Their side does not take into account that gays and lesbians will pro-create. You are right, what about those children? If my daughter lived in California she would legally adopt her children. It is not possible where she lives.

  • 50. Richard A. Walter (s  |  June 15, 2010 at 10:47 am

    Mandy, are you a lawyer by any chance?

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