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Liveblogging Closing Arguments: Part V


By Rick Jacobs

Fresh thread time. More of Judge Walker trying to get Cooper to make a legitimate argument.

Cooper: To come back to the immutability case, the 9th circuit said, “sexual orientation is not immutable.” Against the Supreme Court cases, we know of no case that sexual orientation meets heightened scrutiny. The characteristics of immutability simply do not apply to sexual orientation. Behavioral, attraction and self-identity are the three definitions that the plaintiff’s experts used and depending upon which you use, a different group falls into that, so the definition is not clear. The plaintiffs made clear that sexual orientation does change over time, especially in women. Peplau commented on the “astonishing elasticity” of women, whose sexual orientation changes many times over their lifetimes. Some 2/3 of women who identify as homo have changed their orientation at least once and 1/3 more than once over their lifetime.

C: Goes to Supreme Court question of immutability. Justice Ginsberg says, “Immutability is tightly cabined. Goes solely to accident of birth.” Heightened scrutiny goes to race, gender, illegitimacy, all accidents of birth. Ginsberg says, “Doesn’t say something can’t be changed.”

Judge: Does this have to do with national orientation?

C: Yes.

J: Sometimes of the year everyone is Irish. (Laughter). People may choose via an ancestor to have a national origin. These questions of immutability are not key.

C: Well, we then look at political powerlessness. We submit that gays and lesbians are not politically powerless as Dr. Segura says. Clearly in the Cleveland case in regard to mentally disabled, does the group have the ability to attract the attention of the lawmakers? 20 years ago in “high tech gays?” the court ruled that gays and lesbians can attract the attention of legislators. As Dr. Segura testified, since that time there has been a sea change.

J: Isn’t that the most important factor, the historical context? Women are hardly politically powerless, yet a law protects them, laws that single them out subject to strict scrutiny. African Americans have considerable power and yet a law that singles them out is subject to strict scrutiny. Isn’t the historical context what makes the point?

C: It’s an interesting question. Here’s a group whose political power has changed so dramatically (women). In 1970 and 1973 when the court had before it the political power of the group (women) needed extraordinary protection from a majoritarian electorate so they needed protection. At that time, only 2% of the offices held by them but 50% of the population. That’s not the case with gays and lesbians in California.

J: The DOMA Statute that has been mentioned, Prop. 8, exclusion of gays and lesbians from military for a long period of time, all indicia of discrimination?

[UPDATE 3:00]

J: P8, these other props in other states, the exclusion of gays and lesbians from military service – aren’t those all indicia of a long history of discrimination?

C: We have never disputed that gays and lesbians have been the victims of a long and shameful history of discrimination. Thankfully, the situation today in 2010 is not what it was in the past. The fact of a history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny.

The question of political powerlessness was very different 20 years ago, but the 9th Circuit nonetheless believed that gays and lesbians could attract the attention of the lawmakers; thus, it follows that it must be true today.

Even though mental disability is an immutable characteristic, the disabled could not qualify for heightened scrutiny because the court found that they had political power (could attract the attention of lawmakers), sure they had to rely on allies to create that political power. If the mentally disabled weren’t politically powerless, I would submit that gays and lesbians are definitely not powerless. I submit that Court’s that have decided against heightened scrutiny have been correct.

Long pause….

j: Why should Mr. Blankenhorn’s testimony qualify as expert testimony. Does he meet the standards?

C: I submit that he does. I don’t have anything to add to the submission we made earlier. Under the 9th circuit standard of the qualification of an expert, he is amply qualified. His professional life for 20 years have been devoted to the study of marriage – the potential parenting structures, the potential for harm to marriage due to a variety of social phenomena, including same-sex marriage, he’s written books that have been received with respect by recognized experts.

J: Were they peer-reviewed?

C: No.

J: Am I correct that the only peer-reviewed article of Blankenhorn was not on the subject of marriage?

C: Sir, as I stand here right now. I don’t know…don’t remember.

J: Fair enough.

C: I didn’t come here prepared to argue that particularly. May I request a 5 min break?

J: Why don’t we take 10 minutes….back at 3:10.

[UPDATE 3:27] from Rick

(Here’s a bit of commentary and some color from the break while Arisha does the hard work.)

Bruce Cohen, the Academy Award-winning producer and key figure behind this case, said to me,” Can you believe that they are pointing to the one court ruling banning gays and lesbians from adopting (Florida) as their standard?” As Bruce said, there are only two states that ban adoption by gays and lesbians—Florida and Arkansas. Yet Mr. Cooper is saying Judge Walker should refer to that ruling for guidance here.

Kris Perry introduced me to her two wonderful, poised teenage sons. I also had the honor of meeting Kris’s mother. Of course ___ Steer was right there, wondering with all of us what Mr. Cooper is really filibustering about. Can you imagine being the subject of this case and having your kids and your mom sitting there with you throughout all of this? Imagine these young fellows, who have such wonderful, loving, caring parents, hearing a high-powered, gray-haired lawyer pontificating about how horrid lesbian mothers must be? I really can’t. It’s not removed at that point.

One distinguished lawyer (not on the legal team) said, “The only thing he has is the strict scrutiny test which has never before been applied to marriage equality.” He went on to say, “What he said about Loving is bullshit. The only reason society had to prevent black and white people from marrying was procreation. Society did not want mixed-race kids.” That’s right. Society did not want Barack Obama to be born.

Cooper has surrendered, really, on all of the other issues. He’s trying to say immutability is not assured, but the judge pointed out that that does not really matter here. And even though the judge keeps bringing this back to marriage as a right vs. sexual orientation, he keeps trying to say it’s about sexual orientation because that is his canard.

Short notes: Maggie has her shoes on. Lance Black is watching intently, having not been absent for a second of this. And there to my left is the (oxymoronic) Protect Marriage gang that sued us in January for having a logo that they say is indistinguishable from theirs even though ours has two women with two children instead of a man and a woman. That’s the point of the whole thing. There’s no difference. It’s about the right to love.

[UPDATE 3:33]

C: The US Supreme Court in Crawford vs. Bd. Of Education in 1982 upheld a California constitutional amendment that reduced the remedial tools given to the courts in the school segregation area. In that case the court rejected the contention that once a state chooses to do more than the 14th Amendment requires that the state could not return the “lower” federal standard.

J: What do we make of that in the context of this case? What baring does that have?

C: The California Supreme Court’s interpretation that we believe goes beyond the 14A, was something that the people of the state were empowered to reverse. The people of California are the ultimate appellate tribunal of the California Supreme Court. The Court’s decision was no more final in the state of California than the Appellate decision that upheld Prop 8. It was reviewed by the ultimate, judicial tribunal and the judgment of the Supreme Court in Crawford is on point here.

C: I also want to address whether there is a legit basis for California citizens to be concerned that redefining marriage to include same-sex couples, does not show concern for the potential harm to the institution of marriage or show respect for the role that marriage is supposed to play (procreation, again). Redefining the institution will change the institution. Blakenhorn, our expert, said if you changed the definition of a thing, it’s hard to imagine how it would have no impact on “the thing.” Others have acknowledged that change will result. [He quotes a few “experts” who believe gays marrying will change the institution.] Redefining will divorce the institution of marriage from it’s core procreative purpose. It is not possible to predict with certainty what that change will beget. It seems undeniable that change as profound as this one, would have some consequences. The plaintiffs think that the consequences will be positive; we respect that point of view, but it’s not something that they can possibly prove – and their own expert (quoting Cott now) agrees that we can’t predict. Andrew Churling, a sociologist and equal marriage supporter, also states that “predicting the future of marriage is risky business.” He cites as example the fact that no sociologist forecasted the baby boom during the Great Depression; no sociologist predicted the rise of co-habitation.

Let me say 3 words that I haven’t said that often. “I don’t know.” Jokingly, I wish I could have those words back. Because usually whatever your question is, “I damn sure know.” Courtroom laughs.

J: What about Blakenhorn’s testimony about the negative outcomes that will result if gays can marry?

C: Blakenhorn was giving voice to sentiment that the threat of harm to vital social institution is too daunting to run the risks of gratifying what would otherwise favor the advent of same-sex marriage. There are many who went to the polling place with that sentiment – that’s my speculation. There are millions of Americans who believe in equality for gays and lesbians, but draw the line at marriage. Their hearts are pure – as pure as the plaintiffs – but they still believe that this is profound…could be profound. It could portend some social consequences that would not be positive and that reality

C: No one can know what tomorrow will bring. If there is a legitimate and rational basis to be concerned about that, couldn’t be more rational for people of California to say wait. We want to see what happens in Mass. and here. Perhaps Mr. Olson and his client’s whose sentiments are powerful (he’s speaking very haltingly) will be able to convince their fellow Californians they are right.

J: A disability has been put on marriage. Do you not have to show that there is need, that it’s enough to impose on some citizens a restriction from which others do not suffer? Is it enough to say “I don’t know?”

C: Yes. In looking at what society’s interests are and interests in regulating and caring and about marriage, if there is no basis for drawing a distinction from one to another, the distinction can’t stand. But if there is s distinction, it must stand. It’s been our position from the outset that we do not have to prove that exclusion of gays and lesbians from marriage is a problem; we only have to prove that inclusion of those people would erode marriage.

J: Would you wrap up?

C: Yes. (Pause) The California court (missed which one) goes to the heart of the matter. It is the proper role of the legislature to set priorities and make difficult and imperfect decisions and approaching problems incrementally.” That process is at work in this state and the county. As the court considers this, there is a debate about the morals, the practicalities and the wisdom that really goes to the nature of our culture. The constitution should allow that debate to go forward among the people. Thank you.

J: Thank you Mr, Cooper.

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  • 1. 109  |  June 16, 2010 at 7:57 am

    I don't think it would matter even if SO was by choice. Since the choice harms no one, who is anyone to tell someone else that they can't make that choice?

  • 2. nightshayde  |  June 16, 2010 at 8:09 am

    I've wondered that, too. Why should it matter whether SO is an immutable characteristic or not?

    (yes – I know that there are legalese reasons to care whether something is immutable or not … but I don't see practical reasons)

  • 3. twinmajik  |  June 16, 2010 at 8:42 am

    I think it only matters with regard to protection as a class under the law. If SO is a choice as opposed to an immutable characteristic, then it wouldn't be protected under the law, and one could argue that Prop 8 isn't descriminatory. This is NOT my argument as I think Prop 8 is the most hateful law ever passed by Californians…

  • 4. Mouse  |  June 16, 2010 at 9:44 am

    When it comes right down to it, Prop 8 doesn't prevent people from marrying based on SO. It prevents them from marrying based on gender.

    If immutability matters – which it shouldn't (religion is protected) – then immutability of SO is irrelevant because immutability of gender isn't open to the same moronic debates.

  • 5. DreamyAJ  |  June 16, 2010 at 8:35 am

    I agree with that. I actually think that SO must be a continuum with lots of shading, because clearly some people do find both sexes appealing, sometimes at different times in their lives.

    Or wait. Here's an idea. Their argument is that homosexuality is a choice. Maybe it's the other way around. Maybe we all start out from birth as homosexual, but gradually succumb to gender role training. Or… I like this idea, we all start with the desire and capacity to love everyone regardless of gender, but each of us has a different level of susceptability/tolerance to the training, which is itself influenced by internal and external factors.

    Then there's another thing: sex is not marriage. Some couples essentially stop having sex at some point for a variety of reasons. That doesn't mean they should have to get divorced does it?

  • 6. BobnFred  |  June 16, 2010 at 8:46 am

    There's a difference between something that can change over time and choice. No one ever has a choice as to who (whom?) they are sexually attracted. The fact that in some cases the gender of that attraction may vary over time does not mean that one chooses which gender to be attracted to at any particular time. Sexual orientation is immutable in that it is not like belief, which can change with education and facts, it is something that is innate to the individual starting at birth and ending (presumably) at death.

  • 7. Bill  |  June 16, 2010 at 9:35 am

    Their 'argument' that it is a 'choice' is the only thing that allows a person to move forward with such a hateful mission without feeling like a bigot.

    In their eyes, we DESERVE this treatment. Because of the 'choice' we made.

    This is the argument they will use until such time as they have completely destroyed makind and our planet in order to live out their sick Armageddon fantasies.

  • 8. Mouse  |  June 16, 2010 at 9:47 am

    And yet, while being a bigot is unarguably a choice, they don't want any one to properly label them as such because that's hateful.

  • 9. nightshayde  |  June 16, 2010 at 12:00 pm


    You're a wise rodent, Mouse.

  • 10. Kathleen  |  June 16, 2010 at 2:06 pm

    Both sides concede that Prop 8 is discriminatory – it is on its face. The question is whether it is unlawfully discriminatory. And it's not the case that if SO is a choice as opposed to an immutable characteristic, that it wouldn’t be protected under the law. It's just that it might not be afforded the same level of protection. That is, a law which discriminates on a 'mutable' characteristic might be more likely to pass constitutional muster. I'll be glad to go through an outline of the legal arguments that surround this distinction, but don't want to rehash this if everyone already understands.

    As to the question of religion (admittedly a matter of choice) being afforded a high level of protection, that follows from a different analysis than the one involving immutability. Because freedom of religion is specifically guaranteed by the First Amendment, it is considered a 'fundamental right' and any law which discriminates based on religion must pass the highest level of judicial review.

  • 11. Ronnie  |  June 16, 2010 at 7:57 am


  • 12. Lymis  |  June 16, 2010 at 7:59 am

    "Well, we then look at political powerlessness. We submit that gays and lesbians are not politically powerless as Dr. Segura says."

    Yeah? What other groups are in court arguing whether letting them get married will end civilization?

  • 13. 109  |  June 16, 2010 at 8:00 am

    And if a group is not powerless, Cooper apparently thinks it's ok to discriminate against them.

  • 14. Marlene  |  June 16, 2010 at 8:25 am

    Well, let's not forget that there were bigots in the 1960s who said interracial marriage *would* be the end of civilization!

    Their argument was that there would be so many interracial marriages, that there would be millions of children created by said marriages, and that since blacks and whites were two separate species, that those children would be sterile! I kid you not!!

  • 15. Joe  |  June 16, 2010 at 9:31 am

    "I don't know"? That's they're answer? Look to Massachusetts. Look at Canada. Look to Iowa. Same sex marriage is no longer an unknown, and those places are no worse off for heterosexuals than they were before.

    Is it really "I don't know" or "I just don't want to answer that"?

  • 16. Joe  |  June 16, 2010 at 9:32 am

    At the time, only about 1 in 1,000 marriages were interracial. Even today, 33 years later, only about 1 in 60 are. Wasn't the world supposed to end like a million times over by now?

  • 17. Mouse  |  June 16, 2010 at 9:50 am

    You don't even have to look out of state. I've been married in California since October, 30, 2008. As of today I have not desanctified a single heterosexual marriage.

  • 18. twinmajik  |  June 16, 2010 at 8:44 am

    I laughed out loud when I read that argument. It's so preposterous, I can't imagine how Cooper said it with a straight face. With all the ills of this world, how can this possibly be the thing brings civilization to its knees?

  • 19. Lesbians Love Boies  |  June 16, 2010 at 7:59 am

    “Immutability is tightly cabined. Goes solely to accident of birth.” Heightened scrutiny goes to race, gender, illegitimacy, all accidents of birth. Ginsberg says, “Doesn’t say something can’t be changed.”

    hmf! and hmf! I am a lesbian. I can NOT be a heterosexual. Not in the past, not now and not in the future.

    I cannot be changed…more importantly I do NOT want to CHANGE!!!

  • 20. Lymis  |  June 16, 2010 at 8:01 am

    They are trying to claim that since (it appears) that some people change their sexual orientation, then we all can.

    Once again, bisexuals don't even blip the radar. All PC honoring of people's identity aside, can't these people understand that there are people who don't choose to be bisexual, but can choose which gender to marry/fall in love with/hook up with?

  • 21. nightshayde  |  June 16, 2010 at 8:11 am

    … or people who ARE bisexual but choose to remain faithful to a chosen partner whether same-sex or opposite-sex.

  • 22. Mouse  |  June 16, 2010 at 10:00 am

    I wish there were a better word for bisexuals.

    Both the prefix "bi" misleading to wrongful conclusions about need for multiple partners, need for partners of each gender, incapacity for monogamy, and the "sexual" which tricks people into thinking it's all about doing the nasty.

    No one thinks twice about a person who is capable of falling in love with a partner who has brown eyes OR falling in love with a partner who has blue eyes. No one assumes that someone who is capable of that would require one of each, or secretly be unfulfilled with either for want of the other.

    For bisexuals, gender is just another attribute that is not an important factor in determining whether a person is attractive or someone with whom you could fall in love.

    But all of that is far too complicated to be included when trying to talk to people who think it's okay to discriminate against you because you "choose" to be something they irrationally find morally objectionable.

  • 23. Kathleen  |  June 16, 2010 at 12:59 pm

    @ Mouse, It always astounds me that people don't understand this. And I agree the language carries baggage. I sometimes just tell people that I don't discriminate based on sex or gender. That doesn't mean I indiscriminately sleep with anyone who comes along or am uninterested in a monogamous relationship.

  • 24. nightshayde  |  June 16, 2010 at 8:14 am

    I'm pretty sure that in "their" world view, you can cease to be a lesbian if you choose to stop having intimate relationships with other women.

    If you have sex with only men from here on out (even if you're thinking of women each and every time you do so), you'll be "straight."

    We all know that's a bunch of hooey — but "they" don't acknowledge that.

  • 25. Taelyn  |  June 16, 2010 at 8:22 am

    And that's the secret backbone of the "ex-gays," which most of us clearly see as "whoareyoukidding?"

    And who said monogamous bisexuals? Who wants to admit that (even though I, too, am one of many in this often ignored category)?

  • 26. Steve Mathias  |  June 16, 2010 at 7:59 am

    I find it interesting that we keep coming to the term of immutability.

    Immutable, by definition is the same as "unchangeable" not "unchanging".

    The distinction means that sexual orientation could change and still be immutable, if the change was not one of will but was instead of circumstance.

  • 27. Lymis  |  June 16, 2010 at 8:03 am

    The Plaintiffs addressed that in their written answers – the idea that people who didn't choose their sexual orientation might find that, again, without their deliberate choice, that it changes over time.

    But still, really, what about bisexuals?

  • 28. Steve Mathias  |  June 16, 2010 at 8:32 am

    I'm with you on bisexual individuals. I personally think sexuality is far more gray than a simple binary, or even trinary, system can fully articulate.

    As far as bisexual individuals in the context of this case, they're in the same boat as the gays. We all still can't be guaranteed the right to marry whomever we wish.


  • 29. Bryan  |  June 16, 2010 at 11:04 am

    If only the prop 8 proponents were intelligent enough to see the simplicity and elegance of your post, Steve. They seem to have "unchangeable" and "unchanging" confused.

  • 30. Roger  |  June 16, 2010 at 8:01 am

    Basically regardless of the question if sexual orientation is immutable or not it's still sexism because they're discriminating based on the immutable status of gender.

  • 31. Frijondi  |  June 16, 2010 at 8:05 am


  • 32. Steve Mathias  |  June 16, 2010 at 8:06 am

    One must not confuse sex (physical) and gender (social construct and self-identification). That said, your point is still correct, when talking about sex. They are discriminating against at least one partner on the basis that that partner is not of the opposite physical sex, as recognized in that state.

    The reason I added the last clause, by the way, is that the states also differ on recognizing the sex of those who have had complete sexual reassignment surgery.


  • 33. Roger  |  June 16, 2010 at 8:12 am

    Yes indeed sex and gender are different things, maybe it's because I speak British English but to me gender means the physical dangly/flappy bits and sex means what goes on in a person's head/

  • 34. Steve Mathias  |  June 16, 2010 at 8:30 am

    That's interesting, Roger. It's certainly possible, though here in the states it's viewed exactly the opposite.

    That's why sex is a protected class here (a theoretically immutable physical characteristic), and gender is only protected in some jurisdictions (often believed to be a mutable social construct).

  • 35. twinmajik  |  June 16, 2010 at 8:51 am

    So can can transexual female (formerly male) legally marry a man? Are they legally recognized as being his/her new gender?

  • 36. JoshT  |  June 16, 2010 at 8:09 am

    I completely agree…. marriage is between two individuals… limiting it to man and woman is completely sexist as it limits its parameters completely creating discrimination by a persons gender.

  • 37. Phil L  |  June 16, 2010 at 8:03 am

    Cooper is being eviscerated here… it's great!

  • 38. Sean  |  June 16, 2010 at 8:04 am

    I find this whole line of questioning to be bi-phobic.

  • 39. Steve Mathias  |  June 16, 2010 at 8:07 am

    So do I, Sean.

    Of course, how often we forget bisexual people in the course of this discussion never ceases to amaze me.


  • 40. cc  |  June 16, 2010 at 8:17 am

    I think it is because we don't seem to fit nicely into the binary package of gay or straight. People see us as having a fluid sexual orientation which is not necessarily correct. I am currently in a monogamous same sex relationship however I am still bi. When I am in a monogamous opposite sex relationship I am still bi. However people think if I’m in a same sex relationship I have somehow changed my sexual orientation and have become gay which is simply not the case. I'm bi, have always been bi and to the best of my knowledge have will always be bi.

  • 41. Taelyn  |  June 16, 2010 at 8:35 am

    Completely true. Bis are forgotten or overlooked on both sides, since often heteros think we're gay, and gays think we're straight, or worse, "just confused."

    You want to get really complicated, here's one: I'm monogamous, bi, and a transgirl. I'm in a relationship with a straight man. To many, this would be "same-sex" even if it is opposite gender. Passing privelage helps me here socially, but legally, there are some states where I could marry this man as a hetero relationship when my birth documents are amended, and others where this is a homo relationship. Some states don't allow for any gender change recognition, so there I could never wed a man. My attractions to women are still there, I do not deny that, but I cannot predict the gender of the person I wish to marry, not at this time.

    Does that make me "fluid" in orientation, or "confused," or "going through a phase," or "in denial?" No. But I have been accused of this from plenty of straights and gays alike.

    Obviously the fight for trans recognition and rights is a separate fight, but because there's still the inequality there, I am all the more interested today.

  • 42. Steve Mathias  |  June 16, 2010 at 8:40 am

    Thank you, Taelyn. What you just articulated, very well I might add, is a crux of this entire argument to me.

    Sex can't be considered immutable now, and we don't even have a consistent definition of what it is, and thus without allowing marriage without gender and sex specificaiton, we run into this sort of problem legally.

  • 43. Straight Grandmother  |  June 16, 2010 at 6:49 pm

    It is interesting to me to see so many comments from the Bi-Sexual community. I have to agree with you you are mostly overlooked. Speaking from a hetro perspective it is just hard for us to get our minds around. Put it this way, I am attracted to men and only men. I can visualize how another person can be attracted to a person of their same sex. I like men but my daughter likes women. It is not for me, but I can visualize it. But it is really hard for a hetro to visualize, or project, a person who can go either way. In other words it is hard to picture it in my mind.

    Obviously I am a supportor of all, and the freedom of all to seek and find and marry their life partner. It is easy to not talk about the Bi's because it is hard to talk about that which you can't really picture. I understand it intellectually. As Jerry Seinfeld would say, "There is nothing wrong with that"

  • 44. Lymis  |  June 16, 2010 at 8:06 am

    "Your Honor, surely you don't expect me to be able to discuss the qualifications of one single witness out of all of the….two….we presented!"

  • 45. Straight Ally #3008  |  June 16, 2010 at 8:50 am


  • 46. Straight Grandmother  |  June 16, 2010 at 10:24 am

    Cooper just seemed woefully unprepared. I wonder if he has been staying out to late at night doing, what is that called again(?), Illicit channeling. It is the end of the trial geeze, you only had 2 witnesses, and you can't think quick enough on your feet to defend the credibility of just one of them? Especially when the Judge peppered his written questions to you in addvance that maybe or maybe not he would accept Blankenhorn as an expert. This coulda maybe been a tip off to you to re-read that chapter of the big before the big exam the next day.

  • 47. nightshayde  |  June 16, 2010 at 8:07 am

    I fear there will never be any sort of legal consensus on the immutability of sexual orientation. If you "know" orientation can be changed, you'll believe that orientation can be changed. If you "know" that orientation can not be changed, you'll believe that it can not be changed.

    I'm not convinced that changing your definition of your own sexuality means your sexuality has changed — it just means the way you perceive your sexuality (or the way you want others to perceive your sexuality) has changed.

    If you grow up believing that you're only "normal" if you're 100% straight, you will believe that you're straight if you want to be seen as "normal."

    For many people, that definition will be correct and will probably require no further thought. If you perceive yourself as straight, especially if you really do have an attraction to members of the opposite sex, you will define yourself as straight.

    If you perceive yourself as straight, but haven't found anyone of the opposite sex attractive, you might just think you haven't met the right person yet, but may be a little confused if you find yourself attracted to someone of the same sex. If you subsequently find yourself attracted to people of both genders, you may realize you're bisexual (or you still may think of yourself as a straight person who is attracted to a few specific same-sex individuals).

    You may self-define as "straight" (since that's what's expected of you), and go through all the motions of marrying an opposite sex partner & having children — only realizing later in life that you're not really attracted to anyone of the opposite sex. If your traditional marriage falls apart, you might meet someone of the same sex & fall in love.

    It doesn't mean your orientation has changed. It means your perception of your orientation has changed.

  • 48. Gail  |  June 16, 2010 at 9:44 am

    …and when I got old (or maybe smart) enough to critically evaluate my life, I realized that the straight marriage hadn't provided the deep personal satisfaction I had needed those many years.
    Over and over my wife and I have emphasized that our marriage (both of us came from straight marriages) confirmed that we fell in love with each other's "person", not her sex – didn't matter about the parts, it was all about the "person" that we connected with. So are we lesbian, bi….or human? Or do labels really matter?

  • 49. Mouse  |  June 16, 2010 at 10:07 am

    The labels don't matter to love.

  • 50. Richard A. Walter (s  |  June 16, 2010 at 10:13 am

    That is just like a bumper sticker I saw in a store in Raleigh when BZ and I were at the Equality NC Day of Action.
    All it said was:

    MARRIAGE=♥ + ♥

    That says it all right there.

  • 51. Alto  |  June 16, 2010 at 10:21 am

    The heart wants what the heart wants. Why should it have been a ballot issue anyway? Let's hope this is satisfactorily resolved !!

  • 52. Kathleen  |  June 16, 2010 at 8:07 am

    Just for context, the reason questions of 'immutability' and 'political powerlessness' come up is that these are two prongs of a test that have been used in the past to determine if laws which discriminate against a class of people should be subject to 'heightened scrutiny' by the courts — specifically, whether the state has to show a 'compelling' interest as the reason for the law, rather than merely a 'legitimate' or 'important' one.

  • 53. Richard Cortijo  |  June 16, 2010 at 8:09 am

    I like the National Origin comback fromt he judge. 🙂 a protected class

  • 54. John  |  June 16, 2010 at 8:12 am

    I find it interesting that the defendants continue their ignorant crusade of using the history of racial civil rights to defend their position. The "immutability" of race indeed; for a century and even today, being able to "pass" is still a huge issue inside both the AA and hispanic communities.

    Anyone else remember them claiming there was never racial marriage discrimination? What middle school did these ignorant moroni worshippers graduate from? Or did I just answer my own question?

  • 55. Lymis  |  June 16, 2010 at 8:21 am

    I'd like to see someone ask about biracial people – a hypothetical exactly 50% black, 50% white person with ambiguous features and a skin tone that looks like an expensive tan.

    Said person has every "right" to call themselves black, but an equal "right" to call themselves white, with equal accuracy.

    If they spend part of their life identifying as white for personal reasons, and then decide to call themselves black, or if they called themselves black and then decided to identify as biracial, would that mean that their race had "changed?" How does that affect the idea of immutability, and why doesn't that apply to LGBT people?

    I know I sure as hell wasn't straight before I came out, but doing so surprised a bunch of people.

  • 56. Sapphocrat  |  June 16, 2010 at 8:22 am

    If “sexual orientation is not immutable”…

    If sexual orientation does not meet heightened scrutiny…

    If the "characteristics of immutability simply do not apply to sexual orientation"…

    If "the definition is not clear"…

    If "sexual orientation does change over time"…

    If "[s]ome 2/3 of women who identify as homo have changed their orientation at least once and 1/3 more than once over their lifetime"…

    …then why do we allow heteros to get married? By Cooper's "logic," any hetero could suddenly morph into a homo!

    Or is it just that gays can turn straight, but straights can't turn gay?

    Meanwhile, a shout-out and a hug to our bi brothers and sisters, who don't exist at all in Coop's world.

    Tangentially… I also wish the issue of transgenderism had come up somewhere in this trial; there are plenty of trans people, legally married under their bio-sex, who later transitioned, and remained married to their now-same-sex partners. Where do they come in? Would the H8 gang say they still straight, or are they now gay (and their marriages invalid)?

    It's a valid question, as y'all might remember one of the earliest drafts of Prop H8 included the requirement of chromosomal testing before a marriage licensed was issued. I kid you not.

  • 57. Steve Mathias  |  June 16, 2010 at 8:24 am


    Regarding the transgendered individuals, it greatly depends on the state. Some states would still recognize that individual as having his or her bio-sex. They consider it immutable.

    Other states consider the transitioned sex to be the person's true sex, viewing sex as mutable.

    It's an interesting point, though, thinking of it in that case. If, by means of surgery, we are capable of voluntarily changing a person's physical sex, then in what sense is it immutable?


  • 58. Sapphocrat  |  June 16, 2010 at 8:34 am

    And it poses a conclusion that would flummox Cooper even more: If changing physical sexual characteristics doesn't change a person's affectational orientation, then it appears affectational orientation _is_ immutable.

    In which case, here in California, if they forcibly divorced my wife and me, I could theoretically change my physical sex, and marry her again, legally.

    What a nightmare.

    (I feel, deeply, for the trans folks in states that do recognize their trans sex, but do not recognize SSM. What a horrible limbo they're in… and I'm aware many such couples fly as low under the radar as possible — I can't blame them. I also wonder how many trans people never transition because they're terrified their marriages will be annulled?)

  • 59. Steve Mathias  |  June 16, 2010 at 8:38 am

    That's been a problem I learned about from several of my trans brothers, sisters, and non-binary-gendered siblings.

    If someone has had their physical sex changed, it's possible for their marriage to be legal in one state, but then not recognized in another.

    Ironically, in some states he or she is a man, and in others he or she is a woman, and that plays into the heart of this case as well.

  • 60. nightshayde  |  June 16, 2010 at 8:31 am

    I think they think that if ss marriage is legalized, straights will turn gay. They already think that straights CAN turn gay — how else would there be gay people? That's why they're so worried about gays recruiting their kids.

    Another reason not to legalize ss marriage. If our kids grow up learning that such things are legal and acceptable, they'll want to go out and try being gay for themselves.

    (that grinding noise you're hearing is my eyes rolling)

  • 61. Joe  |  June 16, 2010 at 9:37 am

    There's a reason why a phobia is called an irrational fear. 🙂

  • 62. Mouse  |  June 16, 2010 at 10:12 am

    After several hours of passionate arguing with a former friend who voted "yes" that's the conclusion I came to. His big fear was that if same-sex marriage were legal, if society started to be accepting that being gay was normal and okay, his kids would be more likely to marry same-sex partners.

  • 63. Kathleen  |  June 16, 2010 at 12:41 pm

    As one of our regulars here explained, in trying to have a reasoned discussion with a Prop 8 supporter who showed up here one day — gay isn't contagious. Either your child is or isn't and the best you can do in either case is love him or her for exactly who s/he is.

    You know, it's not complicated.

  • 64. Kathleen  |  June 16, 2010 at 8:36 am

    Thanks for the shout out. We're all too invisible within the glbt community, despite the inclusion of the representative letter b – or worse than invisible, treated with suspicion. As I've expressed at this site before, I experience just as much discrimination (sometimes more) within 'my' community as I do in the culture at large.

  • 65. Steve Mathias  |  June 16, 2010 at 8:39 am

    Not to decrease the validity of your comment, but the T people are also incredibly invisible, particularly those who are only of a different gender than the one assigned by sex, but still have the physical sex organs.


  • 66. Marlene  |  June 16, 2010 at 8:48 am

    I've been mentioning this since the beginning! Transfolk as well as intersex should've been the cornerstone of this argument against Prop H8.

    As Steve said, it's up to each individual state to determine whether or not a transperson can change the gender on their birth certificate/driver's license.

    Here in Ohio, I can't change the gender on my birth certificate, yet I can change it on my driver's license (and now put the proper gender on a passport!).

    Recently, a California male-to-female was with her female partner, trying to get married in Nevada, and the clerk *refused* the couple, claiming that since her driver's license listed her as female, meant her birth certificate (which still her male gender!) was invalid!

    It's amazing that someone supposedly intelligent and educated could be soooooo stupid!!

  • 67. Richard A. Walter (s  |  June 16, 2010 at 9:21 am

    Marlene are you on FB?

  • 68. MChristoff  |  June 16, 2010 at 8:24 am

    Whether a person is born gay like black people are born black or people chose to be gay like people chose to be Catholic….the fact still remains it immutable. It is an unchanging part of who they are.

  • 69. Steve Mathias  |  June 16, 2010 at 8:26 am

    Admittedly, though I am a gay man, I can't say for certain that sexuality is an unchanging thing, MChristoff. Even if it is based on biology, your biology is capable of changing and thus, theoretically, your orientation could change.

    That said, I don't think someone could voluntarily change orientation, and thus it fits the dictionary definition of "immutable."

  • 70. Lesbians Love Boies  |  June 16, 2010 at 8:29 am

    Good point. Parents removed the wrong parts of a child born with both sex organs.

    Although, I still know I was born homosexual…and I will die homosexual!

  • 71. Sean  |  June 16, 2010 at 8:30 am

    I'm in agreement with you, Steve. And doesn't the low success rate of conversion "therapy" support that conclusion as well? Was that ever addressed in testimony?

  • 72. Steve Mathias  |  June 16, 2010 at 8:36 am

    It seems that I recall mention of conversion therapy, but my memory fails in what context.

  • 73. Kathleen  |  June 16, 2010 at 2:28 pm

    One of plaintiff's witnesses was a young man who had been sent by his parents for 'reparative therapy.' Again, I think this was going to the question of immutability.

  • 74. nightshayde  |  June 16, 2010 at 8:25 am

    I wish Walker would say something to the effect of:

    "Your arguments about the importance of procreation show me why heterosexual marriage should be legal. Now – how do those arguments show that same-sex marriage should be illegal?"

  • 75. Steve Mathias  |  June 16, 2010 at 8:27 am

    LOL I love it, except that they never have had an argument about procreation. Never has it been about the act of creating the child, but the act of raising the child.

    That's not procreation, that's child-rearing. A different topic, and an important distinction to remember.


  • 76. Kathleen  |  June 16, 2010 at 2:45 pm



  • 77. Richard Cortijo  |  June 16, 2010 at 8:25 am

    …'s past 3:10!!

  • 78. Amy  |  June 16, 2010 at 8:28 am

    I know!! I'm antsy… get on with it!

  • 79. JS  |  June 16, 2010 at 8:29 am

    He stated that the reason to prevent unwed couples in opposite sex couples was to encourage fidelity and potentially out-of-wedlock children. If SO is "mutable" [sic] why doesn't the same apply for S-S couples? If they were not married, why wouldn't it increase infidelity and potentially cause out-of-wedlock children? (Answer: "These people can't change! Oops, I can't say that or they become an identifiable class of people.")

  • 80. MChristoff  |  June 16, 2010 at 8:30 am

    My point is that the other side wants us to believe that it is chosen and can be changed….yet they are not born religious and are not expected to, or required to change and still have strict scrutiny of their "chosen" lifestyle.

  • 81. Sean  |  June 16, 2010 at 8:32 am

    We all get the spirit of your argument, but it's not necessarily helpful, since religion is protected as a suspect class (i.e., because of the 1st Amendment) for different reasons than race or gender.

  • 82. Alto  |  June 16, 2010 at 8:30 am

    I want to take a moment to offer up a sincere Thank You for the time and energy you are putting into your live blogging to keep everyone posted on the current trial developments in real time. I found myself reading them during the afternoon while I was at work, and also while driving home. I suppose it's a bad idea to read and drive at the same time … I could accidentally grievously harm a hetro person.

    The implications from this trial's outcome are enormous. It sounds like Judge Walker is cutting through the bullshit, which sounds hopeful for a ruling that may actually take a huge step toward finally ending the blatant discrimination that we've been forced to endure.

    While this trial will not have direct implications on a Federal level, it certainly will put momentum behind the cause. This has the potential to eventually open the door to allow me to marry the one that I love in a legally sanctioned, universally recognized, nondiscriminatory union, complete with all the benefits enjoyed by hetro couples, and not have to feel that people somehow could find my relationship to be inferior to others.

  • 83. Richard A. Walter (s  |  June 16, 2010 at 8:30 am

    They are running in circles, aren't they?

  • 84. Frijondi  |  June 16, 2010 at 8:31 am

    Like so many things, the bisexual behavior tends to be interpreted differently depending on whether it's a man or a woman displaying it.

    A man who has sex with women 95% of the time, by choice, but has an occasional encounter with another man, will generally be considered a closeted gay, instead of a straight-leaning bisexual.

    A woman who has sex with women 99% of the time, by choice, but has an occasional encounter with a man, will generally be considered straight but confused. If she has sex with women 70% of the time, and men the rest of the time, she's considered straight but really, really open-minded. And so on.

    The only time some people are willing to call a woman a lesbian is when they're using that term as a slur to put her in her place and keep her in line.

    What people call "fluidity" in orientation is probably not fluid at all, but rather a stable and consistent degree of bisexuality being expressed over time. The difference is, when it's a man, people say "Oh my God, he's really gay!" When it's a woman, they say "She's HAWT/a swinger/confused/had a bad experience with a man/really straight/experimenting/shouldn't have gone to Wellesley/etc., etc., etc.

  • 85. Frijondi  |  June 16, 2010 at 8:33 am

    (Drat, I wish there was a preview function. Strike the "the" before "bisexual behavior.")

  • 86. Richard A. Walter (s  |  June 16, 2010 at 8:31 am

    forgot to subscribe

  • 87. db  |  June 16, 2010 at 8:35 am

    I'm REALLY confused about something…

    Defense is arguing that gay couples shouldn't be allowed to get married because that would somehow cause more "irresponsible procreation", which they say is bad for society. But if heterosexual couples are going to procreate irresponsibly anyway, wouldn't it be good for society to have gay couples — who can not procreate — available to care for the children? And wouldn't it be best if those couples were married?

  • 88. nightshayde  |  June 16, 2010 at 8:39 am

    That argument wouldn't fly with "them" because they don't think gay couples SHOULD care for children. All children should be raised in two-parent households with one male parent and one femaie parent.

    It doesn't seem to matter to them if the parents actually want to have anything to do with one another, or if either parent is violent/abusive. All that matters is that there be an adult penis and an adult vagina in the home.

  • 89. K!r!lleXXI  |  June 16, 2010 at 8:36 am


  • 90. Sapphocrat  |  June 16, 2010 at 8:36 am

    "As Bruce said, there are only two states that ban adoption by gays and lesbians—Florida and Arkansas."

    Right, but the Arkansas ban was ruled unconstitutional (in April of this year).

  • 91. Straight Grandmother  |  June 16, 2010 at 10:34 am

    Yes but many states do not permit a gay "couple" to adopt. For example in Virginia my daughter can adopt children and her partner can adopt children but they cannot adopt them together and be co parents.

  • 92. Richard A. Walter (s  |  June 16, 2010 at 10:42 am

    They can in North Carolina. We have second parent adoption here. One of the crumbs our state legislature has tossed us hoping we will sit along the wall out of the way and remain quiet. Well, I refuse to be quiet.

  • 93. eJim  |  June 16, 2010 at 8:40 am

    Did I get the point right that mutability doesn't come in to it, just accident of birth, for strict scrutiny to be operrable or is that wrong?

    plaintiffs seem to have missed a key point. Truly traditional marriage did not involve the state. Marraige was, unitll 150 years ago or so, like making a special friendship. each party, gay or straight. They chose each other, just as friends do. No state involvement. No records to prove how many were gay and how many were straight. Consequently, it is the idea of state marriage which is new in human historym especially gebder exclusive state marraige.

  • 94. Lymis  |  June 16, 2010 at 10:08 pm

    I think the point is that the idea is (or is evolving into) that the characteristic has to be central to the identity and enduring, resisting change rather than being whimsical.

    Several of the recent court decisions have danced with or bluntly stated that heightened scrutiny applies. One of them (I wish I had the cite) went so far as to say that sexual orientation is central to a person's identity, and that it certainly resists change if change is possible, and more important, that even if such a change is possible, it is not a change that the government has any right to demand that a citizen make – that sexual orientation, to the degree it is chosen, most definitely lies in those areas of personal liberty and privacy that don't belong to the government.

    Mutability is becoming code for "it's a choice" – as though even "choice" is synonymous with "whim" and not something that someone holds as sufficiently central to their identity that it's nobody else's right to force a change.

    The right wing still needs it to be a choice, because it if is a simple choice, all society needs to do is tell us to choose again, and all the discrimination is just "channelling" us into "responsible procreation." If it is not a choice, then they are bullies, pure and simple, and that won't fly and they know it.

  • 95. Sapphocrat  |  June 16, 2010 at 8:40 am

    C: "We want to see what happens in Mass."

    You've had six years, Chuckie. And, so far, Massachusetts hasn't broken off and plunged into the Atlantic.

  • 96. Richard A. Walter (s  |  June 16, 2010 at 9:10 am

    In fact, their divorce rate dropped from something like 70% down to around 4% since 2003. And this weakens marriage HOW again!?!

  • 97. Kathleen  |  June 16, 2010 at 8:40 am

    OLSON: … what Mr. Cooper calls the channeling function which is a new term for me today that the State of California is in the marriage business to channel us, or those who are unfortunate enough to live in California get channeled.

  • 98. Frijondi  |  June 16, 2010 at 9:05 am

    Anyone else find it bizarre the way they keep talking about marriage as if it had some sort of existence of its own, apart from the couples who get married?

    "Marriage is being eroded."
    "Marriage is in trouble."

    This is just ridiculous. Individual marriages can be in trouble, for as many reasons as there are couples. Marriage itself cannot. As for erosion — I'm getting fed up with their extended metaphors. They're histrionic and stupid.

  • 99. Lymis  |  June 16, 2010 at 8:45 am

    I wish someone would explicitly debunk this whole "redefining marriage" crap – nobody has shown the tiniest aspect of straight marriage that is being affected in the least, even if gay marriage were somehow utterly different.

    If my neighbors paint the inside of their house blue, it doesn't "redefine" the color of my home.

  • 100. David  |  June 16, 2010 at 8:51 am

    "we only have to prove that inclusion of those people would erode marriage."

    'Those people'? And they're saying this isn't about prejudice…

  • 101. Straight Ally #3008  |  June 16, 2010 at 8:51 am

    C: We have never disputed that gays and lesbians have been the victims of a long and shameful history of discrimination…

    …which we are fighting to uphold at all costs!

  • 102. Straight Ally #3008  |  June 16, 2010 at 8:55 am

    Quick observation: people are confusing mutability with choice. Even mutable orientation over time is not a matter of waking up one day and deciding to change it. And I'll go out on a limb and say I think that for most people one's particular orientation is not mutable.

  • 103. Skemono  |  June 16, 2010 at 2:52 pm

    Quick observation: people are confusing mutability with choice. Even mutable orientation over time is not a matter of waking up one day and deciding to change it.

    Absolutely. I like to liken it to height. One's height may change over their lifetime, but that doesn't mean they have a choice in the matter.

  • 104. Kathleen  |  June 16, 2010 at 9:10 am


    "… A group of people who have been victims of discrimination, who are a discreet minority, who have identifiable characteristics, their sexual orientation. And we want to foreclose them from participating in the most fundamental relationship in life.

    … those are basic facts you are discriminating against a group of people; you are causing them harm; you are excluding them from an important part of life; and you have to have a good reason for that. And I submit at the end of the day 'I don't know' and 'I don't have to put any evidence' with all due respect to Mr. Cooper, it does not cut it. It does not cut it when you are taking away the basic human rights and human decency from a large group of individuals and you don't know why they are a threat to your particular institution.

    The combination as I said before of those 14 Supreme Court decisions that tell us how valuable marriage is. The Romer case that says you can't take away rights and make them unconstitutionally impossible to recover except by amending your state constitution. And the Lawrence case that says that the sexual orientation of individuals and their private conduct is a protected right. You cannot then in the face of all those decisions by the United States Supreme Court say to these individuals we are going to take away the constitutional right to liberty, privacy, association and sexual intimacy that we tell you that you have and then we will now use that as a basis for not allowing you the freedom to marry.

    That is not acceptable. It's not acceptable under our constitution. And Mr. Blankenhorn is absolutely right the day that we end that we will be more American."

  • 105. Michael  |  June 16, 2010 at 9:33 am

    Marriage does not protect the species from extinction by ensuring procreation. Procreation will proceed by biological imperative, not by the legal status of the parties involved. Procreation predates marriage, by shall we imagine millions of years? The issue in this case is whether or not the Constitution of the United States, its subsidiary the federal government of the United States and its constituent States may confer benefits under law upon some of its citizens that it denies others without proving a rational basis for such denial other than the whim of the tyranny of the majority or the invincible ignorance or animus thereof. Morality, religion, the "ick factor," tradition or science should have nothing to do with the ultimate decision in this case. The question has been, "Are we a society that will offer the equal protection of the law to all its people"? Our history as a nation is one demonstrating our evolving attempts to make that ideal a reality. We are the latest, in some respects, to step up to the bar (figuratively and legally), but surely we won't be the last. This judge at least is appears to know he's on the cutting edge of this historical evolution.

  • 106. Straight Grandmother  |  June 16, 2010 at 10:37 am

    The bottom line is men are horny and want to get laid. I swear that is the main reason men get married in the first place so they can get regular sex. If you removed the instituition of marriage, guess what, men are still horny and still want to get laid, babies will be born.

  • 107. Kathleen  |  June 16, 2010 at 12:17 pm

    Michael, ABSO-frickin-LUTELY!!

  • 108. Jenny  |  June 16, 2010 at 12:17 pm

    How can anyone be for "equal rights" but "draw the line at marriage"?? Then it's not EQUAL. You can't say, 'I'm all for equal rights, except this one'. Example: "I'm for equal rights for women, but I draw the line at equal pay for equal work" If you're for equality you don't draw the line anywhere. That's just a load of BS.

  • 109. Lymis  |  June 16, 2010 at 10:14 pm

    It's easy. They don't mean it.

    What they mean is "Being for equal rights is what is currently socially acceptable, so I don't want to stand out from the crowd by saying I don't believe in it, but gay sex is icky, and I secretly believe that women are less than men, and I don't like the idea that other men might be thinking sexually about me the way I think sexually about women. Since marriage is about legitimizing sex, I don't want gay sex being legitimized, and if this wall falls, I lose one of my last ways to feel superior to the faggots."

  • 110. Liveblogging Closing Argu&hellip  |  June 16, 2010 at 3:17 pm

    […] The fifth thread is now available for your commenting […]

  • 111. James Sweet  |  June 17, 2010 at 1:55 am

    The plaintiffs think that the consequences will be positive; we respect that point of view, but it’s not something that they can possibly prove

    Philosophy majors everywhere are cringing right now….

  • 112. Teresa S  |  June 17, 2010 at 2:21 am

    I think what this really is about with regards to the state issuing marriage licenses – is revenue.

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

    […] the #prop8 tag. I read the Courage Campaign’s prop 8 trial tracker obsessively. They wrote 6 live-blogging posts. I read firedoglake.  I watched the AFER press conference, which you can find info on here […]

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