Sign Up to Receive Email Action Alerts From Issa Exposed

At the AFER Press Conference


By Rick Jacobs

I’m at the American Foundation for Equal Rights (AFER) press conference. The set is a replay of the set at the opening press conference in May 2009 in LA when AFER publicly launched itself and the case.

Andy Pugno, General Counsel of (the oxymoronic) Protect Marriage opened by saying that now the judge can rule. Cooper said he awaits the judge’s ruling so this case can go to its next phase. Cooper ran out unwilling to take questions. We know he has no answers.

Now Austin R. Nimocks, the guy from the Alliance Defense Fund is trying to answer a question about the dangers that Charles Cooper mentioned over and over. He said that it’s about protecting the institution of marriage.

Pugno says that the court rests on the scrutiny issues.

Questioner says the argument you made says that marriage is to protect people who want to have children and those children. How does this work with married couples who cannot or do not procreate? ADF guy says that mothers and fathers are needed. And no public policy is perfect, not for stop signs, or traffic or marriage, but 99% of kids are born from opposite sex couples.

Pugno says that only a man and a woman can inadvertently have children. That’s why the state wants them to marry.

Questioner: Are you saying that ss couples cannot procreate?

Pugno: You don’t understand my answer. Let’s move on. Only men and women can procreate.

Q: SS and opposite sex couples can engage in irresponsible sex.

Pugno: Courts have right to channel (there he goes again).

Nimocks: Defending Prop. 8 is playing defense. Judge not necessarily critical of our not having witnesses. We did not need to have any. All we have to do is have rational basis. We do. Someone may not agree with that basis, but it’s still rational.

Q: Cooper said end of marriage would lead to end of society.

Pugno: I think he was quoting from Supreme Court. All of these questions are great for legislative debate where we change hearts and minds. We don’t ask judges to substitute their will for the will of the voters.

There is a phalanx of cameras here, at least 12 big TV cameras and another dozen small ones plus many, many stills.

Chad and Ted Olson and David Boies and the plaintiffs took the stage. Everyone applauded wildly. Chad is speaking. He said this is not a political campaign with bumper stickers and ads. The law and facts mattered here and the other side had trouble with that. At its core this case is about every person being treated equally. Equal protection is founding principle of country. Plaintiffs want same rights—not special rights—same rights.

I want to thank these plaintiffs before you who represent their own families and so many others across the country. I also want to thank Olson/GibsonDunn and Boies/Boise Schiller. We have become a family and we’re staying together until we get equality.

Kristin Perry thanks Chad and AFER and Ted and David for leading a legal team the likes of which we have never seen and not for a better cause. You gave two moms our day in court. Sandy and I just want the same thing everyone else has. That’s all the case is about: fairness and equality.

Paul Katami thanks everyone. Jeff and I are ordinary Americans. We work hard and pay our taxes. We want fairness. That’s all we ask.

Olson came up and grabbed Boies. “I don’t do anything without David Boies.”

Boies said, “One thing he did without David Boies was the best argument I have heard in 45 years.”

Ted thanks all the folks in both firms, AFER and the plaintiffs. We could not in this country stand any longer without doing something about a proposition that gets placed into the constitution that prohibits people from entering into the relationship that the Supreme Court says is the most important relationship.

I grew up in CA, now live in the east. Chad and the Foundation and so many others—so many names I won’t start going through them all. Every day, David and I have had in mind our clients. We don’t do a thing without thinking about them, about fighting for them. We want the judge to see that on our faces is the interest of our clients. Clients got out there everyday and put their faith in us. Very courageous people. They stand for millions as Chad has said.

We put together a team of lawyers that tries to live up to the promise. We’re a few steps ahead of where we were a year ago. Judge offered to have cameras in courtroom but Supreme Court did not allow. If there was ever a trial in the history of our country that the American people should have seen it was this trial. To see our clients stand up there and talk about their feeling and families was heart wrenching for everyone.

TO hear the most prominent experts in the world talk about discrimination and the history of marriage was terrific. Judge was one of most competent I have ever seen. He moved us along, but he gave us the opportunity to establish a record for the appellate courts and the American people.

Working with David Boies an honor. I said in my closing statement that they had few witnesses on the other side because many of them learned in deposition what it means to be cross-examined by David Boies. Two showed up and they understood why the others did not show up.

I feel very good that we did as good as we could.

Boies said if ever there was trial that should have been televised, it was this one. If it gets out of the darkness, people will be fair and this will all end. Thanks to Chad. No case without him. This has been a challenging, enormously gratifying case. I understand that when Ted finished in overflow room, people cheered. It’s now in the hands of the judge. We made a great case. I’m very hopeful that the facts and the law really will matter in this case. Facts and law are on our side.

[UPDATE 5:25]

Q: Is this the case that will go to the Supreme Court?

O: I believe it is. It is California. There is no other case in federal court that challenges a state. Whether or not we win or lose, we will appeal, I cannot imagine the other side won’t. Someone will bring this to the Supreme Court.

To your other question, of course it is civil rights. Supreme Court said marriage is key right. It also said intimate private sexual matters are a right. How can you then not say that marriage is not linked to that?

Presumptuous to say how judge will rule. Top graduate of Stanford. Chief judge. Been on bench for 25 years. Was at a law firm. I’m confident that he’ll do the best job he can. I don’t know how he’ll rule. He could rule on a narrow basis because California has such a bizarre set of rules.

I don’t know how long it’ll take him to rule. It’ll take him as long as it takes. He gave us 39 questions. He’s a very thoughtful judge.

Ocamb asks questions.

Olson: You sensed how passionate I was in this trial. There may have been a few times when I had more emotion running through my body, but felt that way all day today and most of time in trial. I need to be able to convey those emotions to the judge. Partially academic exercise because we are talking about the law. I think about discrimination.

Boies: I have no answer to the 18,000. Assuming that the plaintiffs win, what should remedy be? Answer they came up with, invalidate the 18,000 marriages. No one knows how they came up with that. I won’t predict, but I will make one prediction: the 18,000 marriages will not be invalidated.

(I paused to talk to Cleve. I missed a couple of questions.)

O: One of the judge’s questions was how did we get to this traditional view of marriage between a man and a woman. It is not correct factually that it has been that way which is why our opponents did not bring it up today.

Intimate relations, spirituality, family are not connected to their definition of marriage. It has nothing to do with it.

I could go on and on, but you heard the closing arguments.

Thank you.


  • 1. K!r!lleXXI  |  June 16, 2010 at 10:11 am


  • 2. JonT  |  June 16, 2010 at 11:35 am


  • 3. Felyx  |  June 16, 2010 at 2:07 pm

    For all those who don't know, the picture (at the time of this post) in the first comment is of a Russian Cheburashka. There is such a Cheburashka that eagerly awaits to see the US stand by its promise of freedom and liberty. Just remember, it is not just the US that would see freedom reign, the world watches…even in the middle of the night from 5000 miles away!

    TE6E JIU6JIIO MON' cheburashka!

  • 4. K!r!lleXXI  |  June 17, 2010 at 7:59 am



  • 5. Ronnie  |  June 16, 2010 at 10:13 am


  • 6. Richard A. Walter (s  |  June 16, 2010 at 10:21 am

    And as so many others have said, let us also remember that Rob Reiner and his wife Michelle Singer started the ball rolling financially. YEA TEAM!

  • 7. Kathleen  |  June 16, 2010 at 10:23 am

    Anyone yet find a link to a recording of the press conference?

  • 8. Sagesse  |  June 16, 2010 at 11:00 am

    AFER should post the video tonight or tomorrow, if their timing on last week's press conference is any indication.

  • 9. Straight Grandmother  |  June 16, 2010 at 10:16 pm

    I can't wait to see the video. I searched all over for some video and could not find any.

  • 10. Shun  |  June 16, 2010 at 10:26 am

    so there's really no way to know when the Judge will likely make a ruling?

  • 11. Dpeck  |  June 16, 2010 at 10:29 am

    For or friends who are not in the area, the trial has been getting a good deal of TV news coverage on all stations here in northern California all day today. Early morning news broadcasts and now all the evening news broadcasts.

  • 12. Dpeck  |  June 16, 2010 at 11:14 am

    ….wow, we're getting A LOT MORE coverage in the 6 o'clock hour, and it's GOOD. And most stations are running teasers of even MORE coverage coming up later…

  • 13. Santa Barbara Mom  |  June 16, 2010 at 11:31 am

    Do any of those channels have live web sites that could be accessed in So Cal?

  • 14. Kathleen  |  June 16, 2010 at 11:36 am

    SB Mom,

    The national news from the major networks look like they'll be covering it. For example, KABC (L.A. channel 7) has said there will be a segment. If things are as I remember them, the SB cable company carries these stations.

  • 15. Shun  |  June 16, 2010 at 10:40 am

    I know this has been mentioned but can someone explain the process from here on?

    Regardless of the decision, it will likely be appealed. And then ultimately, the Supreme Court.

    Do our good lawyers have to argue again or the judges can only use what is presented in this case? If the latter is so, does that mean that there really won't be any actual trials then (aka our lawyers won't have to argue again?)?

  • 16. Kathleen  |  June 16, 2010 at 11:06 am

    There is no testimony in the higher courts. The court relies on the record from the lower court and briefs from the parties. Though there is no testimony or additional evidence. However, there are oral arguments.

    What happens on appeal is similar to what you saw today. A certain amount of time is allotted to each side and the attorneys for the parties go in front of the court and summarize and hit the high points of their arguments, while the judges interrupt, asking questions on things they want clarified.

    Keep in mind, though, the judges aren't just making their decision based on what happens in oral arguments, any more than Walker will base his decision only on what transpired today. It will be the entire body of evidence, including briefs from the attorneys on which they'll rely.

    The other thing that distinguishes the trial court and an appeals case is that an appeal doesn't really retry the whole case. It's only looking at whether there is a reason, in law, to change the decision made by the lower court. Thus, it's the party who loses at trial who will have to make the uphill climb on appeal.

  • 17. Ray in MA  |  June 16, 2010 at 11:16 am

    AND Thank You Kathleen for all your insight and help in uderstanding this complex process!

  • 18. Richard A. Walter (s  |  June 16, 2010 at 11:25 am

    Kathleen, I have said this before, and I will say it again–YOU ROCK! I wish I could have been one of your students when you were a teacher in the classroom. You are just fabulous at breaking this down so that we who are not lawyers can understand it, and you do it with such love. Truly an exceptional educator.

  • 19. Shun  |  June 16, 2010 at 11:28 am

    As others have said, you rock! Thanks for the explanation. Would it be wrong, in a way, for me to assume that it is perhaps more important that we win this round then?

    And would it be possible to both sides to change lawyers for the oral arguments for the appeal or the SC? I am just wondering if lets say the defense loses, they will want to replace Cooper with someone that can better articulate their point (though I doubt anyone can really)

  • 20. Kathleen  |  June 16, 2010 at 11:49 am

    Aw shucks, everyone. You know I'm glad to do what I can.

    Shun, it's not uncommon for parties to use different lawyers at trial and on appeal. Different skills are required for the different arenas. Note how most (all?) of the cross-examination was handled by Boies. It's because he's particularly skilled at cross, as we all witnessed. 🙂

    We're fortunate to have two attorneys who are extremely qualified to handle appeals, both with extensive experience in front of the US Supreme Court. I don't know anything about Cooper, except what is available about him out on the web and the fact that he's a founder of a prominent, highly regarded law firm. He appears to have a lot of appellate experience. As our attorneys have said, the problem isn't with Cooper's skills, it's the lack of substance in the case he's trying to present.

  • 21. Kathleen  |  June 16, 2010 at 11:50 am

    @Shun, just realized I didn't answer your first question… Yes. It's very important we win at this level. It's not that all would be lost otherwise, but it would seriously diminish our chances if we can't win in district court.

  • 22. Shun  |  June 16, 2010 at 12:05 pm

    Thanks for the explanation. (fingers crossed for the best)

  • 23. Rikaishi  |  June 16, 2010 at 9:23 pm

    Very nice. So they’ll still have basically nothing when the case comes before the supreme court.

    This also answers the question of why they were still pushing through discovery requests after testimony was over.

    It’s almost a pity that no new evidence would be admitted. It should be quite easy to gather evidence and examples that SS couples CAN find themselves caring for a child unexpectedly.

    I’ve read of one good example – an M/M couple in NY who reluctantly agreed to temporarily (2weeks to a month) care for a child and ended up adopting because his family went awol.

    If this can be successfully argued it punches a hole through one of their few remaining core arguments, which is doubly dangerous because it has a precedent.

  • 24. Santa Barbara Mom  |  June 16, 2010 at 11:10 am

    Having such a pethora of emotions and so teary-eyed that I'm having a hard time reading the posts! And I know that part of it is from the gratitude that I feel for Olson and Boies ~ there just aren't words to express. I know they are brilliant and take comfort in knowing they were inspired to take this case.

  • 25. Ray in MA  |  June 16, 2010 at 11:13 am

    Many of us across the country share your gratitude and emotions. <3

  • 26. Shun  |  June 16, 2010 at 11:24 am

    I agree! And when this case first started, I thought it was just going to be any other case that would end up failing. Little did I know how awesome Olsen and Boies were going to be.

  • 27. Straight Grandmother  |  June 16, 2010 at 10:37 pm

    @Shun, I didn't think this would be jsut any other case. I followed this on Prop 8 Trial Tracker from the first day and posted as well. I have been telling everyone I know that this is THE case, from the very first day. This is our Brown vs Board of Education. I knew it right away. I have been continually frustrated that the mainstream press has written so little about it. But by God when Judge Walker rules in favor of the Plaintiffs they are going to start paying attention.

    I bet we win it all. I bet Judge Walker is going to give us strict scrutiny and immediatly permit SS marriage. He won't stay his decision. The other side simply did not put on a case. Granting SS marriage does not in any way harm OS marriage. The defendents have failed to show an important state interest in denying SSM. The only question in my mind is how long will it take for him to issue his decision. I would love it to be on my Birthday June 25th, but I don't think he will do it that quick.

  • 28. Richard A. Walter (s  |  June 17, 2010 at 1:35 am

    You are right, Straight Grandmother. That would be one very FABULOUS birthday present. For you and for Ronnie. His birthday is the day after yours, so that means if the decision comes down on 25 June, you can both celebrate, which will make it even sweeter.

  • 29. Ray in MA  |  June 16, 2010 at 11:24 am

    ALLTHIS! and still nothing on!!!!!!!!!!

  • 30. Shun  |  June 16, 2010 at 11:25 am

    well keep in mind also that the trial just ended so the reporters may just be getting all the facts together before publishing an article. SF Chron doesn't have anything concrete either yet.

  • 31. nightshayde  |  June 16, 2010 at 11:57 am

    I actually saw a segment about Olsen and Boies (and a small bit about the trial, as well) on CNN about 90 minutes ago. They also did a little story on gay and lesbian high school kids in Mississippi which left me in tears.

    If it was on CNN, I would think it would show up somewhere on soon…

  • 32. JonT  |  June 16, 2010 at 11:58 am

    Yeah 🙁 Just checked now, not even a peep.

  • 33. Sagesse  |  June 16, 2010 at 7:52 pm

    Washington Post

  • 34. Sagesse  |  June 16, 2010 at 12:59 pm

    SF Chronicle

  • 35. HunterR.  |  June 16, 2010 at 11:27 am

    You can hear a pin drop at

    the twilight zone for sure. Our team did a great job, nonetheless there is no use for reason in our opponents world, I'm bracing myself for the worst despite the plethora of facts supporting us.
    Thank you all…

  • 36. Shun  |  June 16, 2010 at 11:30 am

    I bet that with the lack of news, anti-ssm are just assuming that everything is going according to planned and nothing to worry about

  • 37. Kathleen  |  June 16, 2010 at 12:05 pm

    There were some posts here:

  • 38. Dave  |  June 16, 2010 at 1:28 pm

    Statement from Maggie at

    Posted by NOM Team on Wednesday, June 16th at 5:23pm
    "Chuck Cooper is a heckuva lawyer. .."

    Is that anything like "You're doing a heckuva job, Brownie?"

  • 39. JonT  |  June 16, 2010 at 1:37 pm

    Dave: Should be: "Maggie, put your damn shoes on, and put them down!"


  • 40. Kathleen  |  June 16, 2010 at 2:11 pm

    He might be a heckuva lawyer. It's the case that's the problem. Even the bestuva lawyer can't do much with a sow's ear….

  • 41. Nick from KY  |  June 16, 2010 at 11:28 am

    I won't be able to sleep tonight until I hear a verdict, or at least a verdict date. Please, someone, anyone, even if you don't actually know, give me an answer!

  • 42. Shun  |  June 16, 2010 at 11:30 am

    unfortunately, there is no actual date it seems. but all the articles i've read said that a decision is expected this summer (or within the next couple of weeks)

  • 43. Kathleen  |  June 16, 2010 at 11:56 am

    Walker has not said anything, at least publicly, about when to expect his decision. The attorneys have said they expect it to be a "few weeks." It's possible it could be sooner. It's not going to be today… that's for sure. Don't know if you caught it, but Walker is allowing Cooper until tomorrow to submit additional arguments that Blankenhorn qualifies as an 'expert.'

  • 44. nightshayde  |  June 16, 2010 at 11:58 am

    Maybe Olsen/Boies could submit that argument (since he was more an "expert" for our side than for the Prop8 side).

  • 45. Shun  |  June 16, 2010 at 12:04 pm

    If anything, I think he's been very lenient by giving the defense many opportunities to do better with their evidence/experts….but I guess even today, Cooper couldn't even do that.

    There's just no way that Blankenhorn qualifies as an expert. But I then wonder, if he is deemed not qualified, does that mean his testimony is thrown out?

  • 46. Kathleen  |  June 16, 2010 at 12:34 pm

    if [Blankenhorn] is deemed not qualified, does that mean his testimony is thrown out?

    I think the consequence would be that Walker would decide B's testimony/opinion should carry little or no weight as evidence. Could be wrong on that though.

  • 47. Rikaishi  |  June 16, 2010 at 2:03 pm

    I think their big problem with B is that he's all they've got. They can't drop him or let him be dismissed as an expert because if these cases reveal that there ARE no experts who will actually support their position, then they're sunk.

    It doesn't matter if the "experts" they bring end up doing more good for us then them. As long as they censor the actual testimony they can dismiss their losses as "Activist judges" and "show trial" (which is exactly what they're doing on their website)

    But if B isn't an expert, then we get gifted with a very nice rhetorical weapon.

    "There's not a single expert willing to defend your position in a federal court"

    Logical fallacy perhaps, but if this were a war of logic we'd have won it decades ago.

  • 48. Felyx  |  June 16, 2010 at 2:46 pm

    "I think their big problem with B is that he’s all they’ve got. They can’t drop him or let him be dismissed as an expert because if these cases reveal that there ARE no experts who will actually support their position, then they’re sunk."

    @Rikaishi Konnichiwa. I would not worry…after all, Mr. Cooper stated outright that Blankenhorn's testimony was not needed, evidence was not needed, in fact even facts were not necessary. (Remember, he actually did say these things!)

    No, all that is needed is the understanding that by preventing the 'by their very nature infertile' gay couples from marrying and forcing their children (that they can't have) to be thusly illegitimate (even though the proponents stated purpose of marriage is to make children legitimate) they can then rationally prevent irresponsible procreation in irresponsible mother-fuckers.*

    *The word is blatantly rude but I would contend very appropriate as Cooper explicitly explained that men will otherwise be even more encouraged by gays' getting married (than they already are without such powerful homoerotic stimulus) to just have sex with any ol' uterus and accidentally make a baby. The State is therefore obligated to take marriage away from the private individual and co-opt it for nationalist (though not Fascist Nazi-like) purposes and use marriage in a way that it has never before been used (in the land of the free) in order to channel procreative functions (herd penises into vaginas — for those of you who might be easily bemused by obtuse verbiage) within the context of marriage so that children will not be forced into the horrific state of being born out of heterosexual wedlock…a condition that will result in a threat to the survival of all mankind.

    No I am not just making this up…read the closing argument by Mr. Cooper. (If you don't understand it don't worry — neither will the Supreme Court!)

    Felyx – Not bemused by obtuse verbiage…or stupidity.

  • 49. Richard A. Walter (s  |  June 16, 2010 at 12:38 pm

    Nick, what part of Kentucky are you in? Are you closer to Lousiville, Lexington, or Catlettsburg?

  • 50. Richard A. Walter (s  |  June 16, 2010 at 12:38 pm

    I don't know what will happen once it hits their offices' automatic email responders, but I just emailed Olson, Boies, Boutrous and Goldman a brief note of thanks. I would have sent one to the other lawyers for our side, but these were the only ones I could find emails for in the documents.

  • 51. Kathleen  |  June 16, 2010 at 7:43 pm

    The official transcript from closing arguments now available at AFER:

  • 52. Sagesse  |  June 16, 2010 at 11:32 pm

    From California legal blog The Recorder

    Where's the Evidence, Walker Asks Prop 8 Supporters

  • 53. Ed C  |  June 17, 2010 at 12:49 am

    It would be really cool if Judge Walker released a favorable opinion on Friday the 25th – just before SF Pride!!

  • 54. Inland Empire  |  June 21, 2010 at 6:28 am

    If a lesbian couple wants to marry and one of them is raped and becomes pregnant, should they be allowed to be legally married?

  • 55. Kathleen  |  June 21, 2010 at 6:36 am

    I'm sure the Proponents would say yes – she should marry the man who raped her (isn't that what the bible says?) 🙁

  • 56. Kathleen  |  June 21, 2010 at 7:26 am

    Thanks for the correction, I forgot about the property transaction.

  • 57. fiona64  |  June 21, 2010 at 2:09 pm

    Not exactly. If the rapist pays her father 50 shekels of silver, then he can marry her. After all, he’s bought her fair and square.


  • 58. If Family Feud covered th&hellip  |  June 21, 2010 at 7:32 pm

    […] I read firedoglake.  I watched the AFER press conference, which you can find info on here and here, among other places.  I’ve been following the case since it first debuted in January, to my […]

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