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Liveblogging Closing Arguments: Part VI


By Rick Jacobs

This should be the last thread of the day, with the plaintiffs up to rebut the defense’s arguments.

Judge Walker: Mr. Olson, let’s pick it up there. Isn’t the danger that you might win this case? That happened thirty years ago and continues to fester in society. Isn’t the same danger present here that society will still be restive and unsettled?

Olson: I believe the cases to which you refer are to abortion. The arguments we look to are civil rights. Look at the Loving case. The Supreme Court struck down 15 or 16 anti-miscegenation statutes in 1967 unanimously. Looking back only 43 years, we see that it was a felony in Virginia to marry another race.

O: The same arguments were made to MLK, Ruth Bader Ginsberg and Thurgood Marshall. I know that Mr. Cooper wishes he could take those words back, “I don’t know.” He could only get two witnesses into court because they did not want to be cross-examined by Mr. Boies and some did not come because they were cross examined by Mr. Boies (Laughter).

O: Mr. Cooper sites from books of people who would not come into court to be subjected to the judicial process. Mr. Cooper used a new term today, that the State of California is in the business of channeling us through marriage, I’ve never heard of that. (Laughter). He says that gays and lesbians are a threat to procreation and that channeling function if you accept that channeling is a function. 14 Supreme Court decisions, testimony of Dr. Kott, other experts say that marriage is not an issue of 30 years, but older than the bill of rights.

O: Mr. Cooper says first you have to accept my definition that marriage is between a man and a woman and marriage between man and man or woman and woman would change definition. Of course it did because you defined it. How does it help to keep gays and lesbians out of the club?
O: It turns out that Mr. Blankenhorn has some things to say. Mr. Cooper wants him to stay as an expert in this case and we’ll accept that because it turns out he’s quite helpful to us. (Laughter).

(Plays Blankenhorn testimony: “heterosexuals did the deinstitutionalization. It predates the discussion of gays and lesbians marrying.”)

O: Dr. Kott points out that no fault divorce led to higher divorce rates. So much for the channeling function! Mr. Blankenhorn did testify that gays and lesbians have nothing to do with the increase in divorce rates and good for him that he came here to be cross examined.

(Plays Boies: you did not mean to imply that bio parents are better than adoptive? Blankenhorn: No. Boies: In fact, two bio parents… Blankenhorn: IN fact adoptive parents on some outcomes outstrip bio parents in providing better care for their children.”)

O: Well, there you have it. Children in same sex families are better off, maybe, than those of natural. Or maybe not. Blankenhorn says that if ss couples can marry better off still.

O: Now a word on pro-creation. What if the state changes its mind? There are governments that have ruled that too much pro-creation is bad. If CA so decides in 10 years, would the state have the right to cut off marriage? No. None of the cases to which Mr. Cooper referred, including Maynard, referred to divorce, mandatory leave for public school teachers, family occupancy of homes, prisoners, and the last case in Texas which ruled for homosexuals. Mr. Cooper cites Justice Stevens in Bowers and then he is in the majority in Lawrence. IN other words, his earlier opinion really reversed and confirms that marriage is not about procreation. That’s what the oracle of justice, Mr. Stevens said. It’s not about sex.

O: Why are we all of a sudden talking about SS marriage? It’s no longer against the law to work for the federal government if you are a homosexual. It’s no longer against the law in most places to go into a bar if you are a homo. It’s no longer considered a disease. Even some of that stuff was in the Prop. 8 ads. With this changes in society, no wonder people are talking about marriage.

[UPDATE] 4:02

Judge: 1967, it wasn’t 41 states – it was about 14 or 15 states that prohibited inter-racial marriage. 27 states removed the restriction and in that first one, there was already a political tide running with respect to inter-racial marriage and the Supreme Court took note of that. Now, do we have a political tide that is going to carry to the Supreme court?

Olsen: I believe your honor that there is a political tide. But that does not justify saying that the polls need to be a little bit higher before change, because even if they change it here in California we still have to go to every state. There will never be a case with such a wildly crazy system like California had, there will never be case like Romar. The right to privacy is the same right we’re talking about in the context of marriage.

The most compelling thing that I’ve read on that subject were the arguments made to Dr. King – people saying that the people weren’t ready, that there would be backlash – and his letter from a Birmingham jail about why we can’t wait any longer. The threat of irresponsible procreation – what does that mean? I can’t figure out what that means. Because the clients that I represent are not irresponsible procreators; on the other hand, heterosexual couples who have sex outside of their marriage are a much bigger threat to the institution.

We had a discussion about the motivation of the voters and whether the procreation protection goal part of the reason that voters approved Prop 8. Mr. Cooper cited two exhibits during this poriton, but we looked at those 2 exhibits and protecting procreation was not mentioned in either of those (he’s referring to the voter guide and Prop 8 campaign). I could not find the words procreation….I could find the phrase “activist judges” (laugh), what I also could find was about protecting children. Protecting children is the argument that proponents made and I submit that is discriminatory animus.

[UPDATE 4:04]

O: We relied on a definition of marriage as I pointed out was supported by 14 Supreme Court decisions on privacy and other issues. Mr. Cooper has cited some appellate court decisions. With all due respect, the 134 year history of Supreme Court rulings on marriage trumps that. Then we had experts testify on immutability—all kinds of evidence on that. No idea how my opponent can say it’s a matter of choice. Some people may change. But it’s a characteristic and the experts testified. Supreme Court decisions, testimony by eight of the best experts in the world and the animus behind Prop. 8 and then Mr. Blakenhorn came over to our side (laughter).

O: Then Mr. Cooper cited High Tech Gays case was in 1990. I must have heard that in his testimony six or eight times. It relied on Bowers. Bowers has since been reversed by Texas. Cites case that talks about immutability. Points your honor to 9th circuit opinion which guides.

O: No we get to gender discrimination. Choice of gender of whom you want to marry leaves some out. It’s about a fundamental right to marry, not to marry in June or some other time, but to marry whom you love. Can’t rely on post-hoc. We have to take a group of people who have bee victims of discrimination and we want to foreclose them from a basic right_ marriage. Strict scrutiny, rational basis or something in between, you have to have a good reason to take those rights away. “I don’t know” doesn’t cut it when you take a basic right from a group is not good enough. 14 Supreme Court cases, including Romer and Lawrence that says sexual orientation is private. You cannot say that we are taking away the intimate rights and take away your freedom to marry. Not acceptable under our constitution.

O: Mr. Blankenhorn is right. The day that ends, America will be better off. Thank you, your honor.

J: Very well. I’ll remand.


[UPDATE 4:09]

After nearly three weeks of testimony and a day of final arguments, it’s over. Now it’s all up to the judge. All.

Ted Olson just wrapped the whole thing up with these words: “I don’t know doesn’t cut” when you are removing the fundamental rights of an entire group of people.

I’m going to go hug folks. I almost cried. I have to think. We have our work to do. Everyone has to know.

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  • 1. K!r!lleXXI  |  June 16, 2010 at 8:53 am


  • 2. Straight Ally #3008  |  June 16, 2010 at 8:59 am

    Why are we all of a sudden talking about SS marriage? It’s no longer against the law to work for the federal government if you are a homosexual. It’s no longer against the law in most places to go into a bar if you are a homo. It’s no longer considered a disease. Even some of that stuff was in the Prop. 8 ads. With this changes in society, no wonder people are talking about marriage.

    QFT, as they say.

  • 3. Lesbians Love Boies  |  June 16, 2010 at 9:00 am

    O: Mr. Cooper says first you have to accept my definition that marriage is between a man and a woman and marriage between man and man or woman and woman would change definition. Of course it did because you defined it.

    Yes. And, isn't that definition still relatively new? Certainly not 30 years old.

  • 4. Joe  |  June 16, 2010 at 9:55 am

    43 years ago it was one white man and one white woman.

  • 5. Marlene  |  June 16, 2010 at 9:00 am

    Olsen and Boies have hit back to back to back to back home runs!

    They've taken every pathetic argument the bigots have spewed and tossed it back in their face! *This* is the reason *why* civil rights must be done in court, rather in the public sphere!

    Judge Walker is a supurb jurist, and has more intelligence in his left pinky than the twits from Prop H8! Just where in the hell did these two dipsticks get their law degrees… a box of Cracker Jacks, or was it one of those so-called "law schools" run by the religious reicht?

  • 6. Bill  |  June 16, 2010 at 10:20 am

    The Prop H8 guys are actually talented lawyers.

    When they have a defendable case.

    How does anyone, even a genius attorney like Boise or Olsen, go into a court of LAW and make a case for institutionalized discrimination against INNOCENT HUMAN BEINGS.

    It just can't be done. Unless the judge is an idiot. And clearly, Walker is anything but. His calm determination is what will help make this case stick. He really is to be commended however he decides. I can't imagine that he will not strike Prop 8 down as unconstitutional, but I am 41 years old, so nothing really surprises me anymore when it come to justice. It still hurts, but it doesn't surprise.

  • 7. Ronnie  |  June 16, 2010 at 9:01 am


  • 8. Lesbians Love Boies  |  June 16, 2010 at 9:06 am

    O: …on the other hand, heterosexual couples who have sex outside of their marriage are a much bigger threat to the institution.

    Yup, read that in these threads since the first days of the trial!

  • 9. Lesbians Love Boies  |  June 16, 2010 at 9:07 am

    Dag Nabbit! I thought Judge Walker might give us some time frame.

  • 10. Bryan  |  June 16, 2010 at 12:11 pm

    I was hoping the same thing! I was praying that he would say something along the lines of, I don't know, "I'll get back to you tomorrow". 🙂

  • 11. Ray in MA  |  June 16, 2010 at 9:14 am

    Thank You Thank You Thank You Mr. Olsen and Mr. Boise and ALL of your associates.

    You are ALL a treasure in my heart. I believe you can understand why.

  • 12. Straight Grandmother  |  June 16, 2010 at 10:06 am

    Ther FIRST and biggest praise should go to 2 people who have kept a low profile. Rob Reiner and his wife Michelle Singer. After Prop 8 passed they decided to do something about it and hired Olson and Boies and put up the first money to start the court case. They are truly the unsung heros. Withour Rob and Michelle there would be no Olson and Boies.

  • 13. Richard A. Walter (s  |  June 16, 2010 at 10:11 am

    Can we start a facebook page for them like was done for Daivd Boies? That would be one way of doing it.

  • 14. Bill  |  June 16, 2010 at 10:22 am

    And people like you, too, Straight Grandmother. You have been with us here from the start.

    I love you for that. Thank you!


  • 15. jq  |  June 16, 2010 at 9:14 am

    When is a ruling expected?

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

    Good luck to us all, but I don't want to get my hopes up. It could go either way.

  • 17. gayathomemom  |  June 16, 2010 at 9:19 am

    Yeah, Cooper's hubris with the 'we don't have to prove a thing' makes me so angry. He really is relying on the 'status quo' to make his case for him. What a lazy, arrogant approach to the biggest civil rights case in 50 years.

    Hopefully, we will not have to wait long for Walker's decision. Whatever it might be. But I'm hopeful.

  • 18. cc  |  June 16, 2010 at 9:20 am

    All I can say is wow! Crossing fingers and holding my breath till the judgment comes!

  • 19. 109  |  June 16, 2010 at 9:22 am

    That was breathtaking. Thanks so much awesome lawyers, live bloggers, and everyone! Waiting for a ruling now, I guess. Wow.

  • 20. nightshayde  |  June 16, 2010 at 9:24 am

    So…. what happens now?

    If we win, does marriage equality get reinstated in California immediately, or will it depend on whether or not there's an appeal?

  • 21. Balu  |  June 16, 2010 at 9:26 am

    I dont know doesn't cut … that is gonna be my status of the week. What wonderful closing arguments.

  • 22. Richard A. Walter (s  |  June 16, 2010 at 9:27 am

    Ted Olson is another of my heroes!

  • 23. Mike Holzman  |  June 16, 2010 at 9:56 am

    Thanks for doing such a great job with the blog today. I really enjoyed it. As a gay married couple with 2 adopted kids this is a key issue for our family and stand united in the efforts. Keep up the great work!

  • 24. chamisaguy  |  June 16, 2010 at 11:27 am

    Thanks for the live coverage, as always! Exciting times, truly intelligent and impressive counsel on the plaintiffs side, and dusty and shifting protests and arguments from the proponents' side. Here's a really strong thought from me that Judge Walker will come down clearly, cleanly and heavily on the side of constitutionality, equality and against bigotry and legislating discriminatory morality by the majority.

    (So are my brother and his partner back home in San Francisco — who'd married when it was first available in San Francisco; then that was struck down, so they entered into a Domestic Partnership; then came the CA Supreme Court decision recognizing the constitutionality of same sex marriage in the State, so they rushed out and got married (again) – one of the 18,000 couples who managed to get through the door before it was closed down again by Prop 8. And they're one of those 3 classes of citizens now in California caused by Prop 8 — and the class of "limbo" —that's untenable status and I hope this case will wind up overturning (in the long run) the hateful rewritten section of the state's constitution.)

    Waiting for the next phase with bated breath!

  • 25. Bill  |  June 16, 2010 at 4:55 pm

    Win or lose, our voice has finally been heard. In a court of law. Without the hateful bigoted rhetoric.

    It does not matter what the decision is.

    We won.

    Big time.

    This is now and forever a part of public record.

    This time, our enemy can not and will not rewrite our history.

    We won.

    I love you ALL. As a California resident, after the trauma of Novemeber 2008, having been a part of this web site for so many months has been such a gift and a light in my life. You all have helped to ease the unrest and the damage to spirit that was the very intention behind Prop 8 to begin with.

    We must keep in mind that this is only stage one. But honestly, with all of this on record, the entire LGTB community should recognize this for the historic moment that it is. It is a turning point. And I am old enough to recognize those when I see them.

    I think we’re going to be OK.

  • 26. Sapphocrat  |  June 16, 2010 at 4:56 pm

    Thank you, Rick, for a superb job! What a day!

  • 27. torifan669  |  June 16, 2010 at 5:22 pm

  • 28. Chris B  |  June 16, 2010 at 11:30 am

    "It's a health issue"? Ignorant comments like these make me so angry and frustrated. Do they think banning gay marriage will keep gay people from having sex? Or, since they can't marry, they will suddenly turn straight?

    Same group that believes that if you don't tell kids about sex (or only teach abstinence), they won't have sex.

  • 29. allen  |  June 16, 2010 at 12:03 pm

    I was raised in Porterville and I was friends with Jessica Mahoney in that video. Wow, small world, thanks for sharing. You go Jessica, you make me proud 🙂

  • 30. James Tuttle  |  June 16, 2010 at 1:31 pm

    WOW!!! I live here where this first photo is taken, I eat breakfast at Irene's (the resteraunt in back) about 2 times a week. Its called Fresno's Tower District and my partner and I love it here.

  • 31. Ray in MA  |  June 16, 2010 at 5:53 pm

    It’s difficult these days to avoid ignorance.

  • 32. bonobo  |  June 16, 2010 at 6:14 pm

    I hear them. I too live in a small community of California, mostly republican and very bible belt, and we are all but forgotten by our side. They want us to sign up and send money, but they also want us to go to the big cities and won’t help us here.
    I wish them all the luck in the world.

  • 33. Yael  |  June 16, 2010 at 5:26 pm

    Wow this was powerful as a gay man who has been in a loving relationship for 6 yrs i don’t know what to say Olson and Boies You guys have give us a voice that is so loud nobody cant ignore anymore I don’t know what else to say but Thanks love you.

  • 34. Bill  |  June 16, 2010 at 6:25 pm

    I was at the closing arguments today. Someone who came late asked me if I thought the argument about “this isn’t the right time” has any merit. I admitted that I am not sure, but one thing I do think is that if the timing isn’t ideal, then the strength of the Boies and Olson legal team sure makes up for it. Those guys are incredible, and jumping on the opportunity to have them present our case is simply an opportunity that we could not have afforded to pass up, no matter when…

  • 35. Richard A. Walter (soon to be Walter-Jernigan)  |  June 16, 2010 at 6:31 pm

    It wasn’t “the right time” for Martin Luther King, Jr. either, but look what was accomplished because of all those who refused to just sit quietly in a corner and be ignored.

  • 36. Dave T  |  June 16, 2010 at 11:43 pm

    In response to the "now is not the right time" argument:

    We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was "well timed" in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant "Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied."

    Martin Luther King, Jr. Letter from a Birmingham Jail

  • 37. truthspew  |  June 16, 2010 at 10:18 pm

    Cooper is totally out of line with many of his arguments. The immutability argument really gets under my skin.

    I’ve been strictly homosexual for as long as I can remember. No intention to change that and no desire to do so.

    I so hope we win this one. It’ll be good to shove it in the faces of the bigots.

  • 38. Mark M.  |  June 17, 2010 at 8:54 am

    My husband and I are so over joyed by the love and support from our legal team and from each and everyone of you here.
    It’s so easy to even in this day and age to feel ‘alone’, but sharing this historic time with all of you has made us realize we are NOT alone.
    Our children will one day look back on this as a true turning point in history.
    Thank you one and all!!!
    Mark and Robert (together 27 yrs and counting)
    Seattle, WA

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