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Prop 8 proponents still arguing procreation in 9th Circuit brief

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(Here is Karen Ocamb’s take, cross-posted from LGBTPOV, on the written arguments filed by the Prop 8 legal team late last night. Check out Friday night’s breaking news post for more on the brief).

By Karen Ocamb

Yes on 8 Andy Pugno and NimocksThe defendant-interveners in the federal Prop 8 trial filed a 134-page argument with the U.S. 9th Circuit Court of Appeals, three hours before it was due. Prop8TrialTracker has the brief scribed. Interestingly, Austin Nimocks, senior legal counsel for the Alliance Defense Fund, (pictured in this photo by Mark Hefflinger at the Yes on 8 podium with attorney Andy Pugno) is not a named author in the brief, despite being ubiquitous during the trial. Wonder what happened there.

The Proponents argument that they have standing in the case starts on page 19, after a list of citations – but it reads like they are submitting their case in full, once again arguing the incredible importance of procreation as the distinguishing characteristic of heterosexual relations. And once again, we’re jumping through the Looking Glass:

“Nowhere in its 136-page opinion does the district court even cite any of the evidence overwhelmingly acknowledging responsible procreation and child-rearing as the animating purpose of marriage. All of the evidence – the judicial authority from California and almost every other State, the works of eminent scholars from all relevant academic fields, the extensive historical evidence – is simply ignored. And the district court ignored it quite willfully; in the court’s view, apparently only oral testimony presented at trial constituted “evidence” on the issue (and its treatment of even this evidence was egregiously selective and one-sided….).”

In another interesting twist, the Prop 8 proponents claim the plaintiffs erroneously argued that there was animus on the part of the people of California, when in fact the legal team of Ted Olson and David Boies argued convincingly that it was the proponents and pushers of Prop 8 who were motivated by animus toward gay people:

“This charge is false and unfair on its face, and leveling it against the people of California is especially unfounded, for they have enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians, including a domestic partnership law that gives same sex couples all the same substantive benefits and protections as marriage. And it defames as anti-gay bigots not only seven million California voters, but everyone else in this Country, and elsewhere, who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve society’s interests – from the current President of the United States, to a large majority of legislators throughout the Nation, both in statehouses and in the United States Congress, and even to most of he scores of state and federal judges who have addressed the issue.”

On the issue of Standing, they write:

“As official proponents of Proposition 8, Appellants are authorized by California law to defend that Proposition on behalf of the people of that State. Accordingly, they have standing to defend this appeal. The Imperial Interveners, who directly administer California’s marriage laws, likewise have standing, and should have been permitted to intervene in this case…..”

Specifically, Proponents have “authority under state law” (Karcher v May 1987) to defend the constitutionality of an initiative they have successfully sponsored, for they are acting “as agents of he people” of California “in lieu of public officials” who refuse to do so,” ie Gov. Arnold Schwarzenegger and Attorney General Jerry Brown.

They cite Arizonans for Official English v Arizona (1997) as backup – but as Lambda Legal’s Jon Davidson wrote earlier, other attorneys believe the Arizona decision went against the initiative proponents.

The defender-interveners also say they have standing because the California Supreme Court “has already permitted these very Proponents to defend this very Proposition when the Attorney General would not do so.”

Imperial County filed their brief just before the midnight deadline.

UPDATE BY EDEN: In the comments, Alan E. just shared this relevant trial video reenactment from our friends at

If the closing arguments are any indication, I don’t think they will stop hammering procreation, even after it has been thoroughly debunked.


  • 1. Felyx  |  September 18, 2010 at 2:39 am

    I wonder if the Justices are just sitting there laughing their collective asses off. Seriously, a high-school English teacher would give this a good grade.

    I saw this on the last post…

    I say in order to pass anti-marriage laws the Fed should require procreation and deny divorce. Let's see them weasel their way out of that!

    On a more serious note… the further they push this the faster America will go gay!!! I for one don't think it can happen fast enough!

    <3 Felyx

  • 2. Steve  |  September 18, 2010 at 2:42 am

    "who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve society’s interests"

    Again implying that heterosexual couples are affected in some way and that something will be taken away from them. They just can't give it a rest.

  • 3. Richard A. Walter (s  |  September 18, 2010 at 2:43 am

    Checking in. Will read up later.

  • 4. Ann S.  |  September 18, 2010 at 3:05 am

    Moi aussi.

  • 5. Ann S.  |  September 18, 2010 at 3:05 am

    clicking box now . . .

  • 6. JonT  |  September 18, 2010 at 5:41 am

    Same here.

  • 7. Sagesse  |  September 18, 2010 at 2:49 am

    Et sequitur.

  • 8. Alan E.  |  September 18, 2010 at 2:53 am

    If the closing arguments are any indication, I don't think they will stop hammering procreation, even after it has been thoroughly debunked.

    [youtube =]

  • 9. Felyx  |  September 18, 2010 at 3:45 am

    Procreation – Having children

    Irresponsible Procreation – Having children when you are not supposed to… (whatever that means.)

    Irresponsible Procreation with a third party – Heterosexuals having fun… er, Surrogate Motherhood (No wait, that is legal for straights too)… um, Heterosexuals Cheating on each other (no wait, only gays are promiscuous…) Promiscuous Homosexuals

    Channeling Procreative Function – NOT a made-up phrase or a redefinition of Procreative Function indicating 'small governments' way of not interfering with the rights of it's citizens by forcing heterosexual couple who want to marry first and procreate afterwards to go ahead and do that thing just mentioned but at the same time not being overly burdensome to it's citizens by preventing other non-procreating couples from marrying and possibly procreating even if biologically impossible or preventing procreating couples from marrying each other or even some other opposite sex partner, whatever they like, or even preventing any woman from marrying any man or vice-versa, even it they are gay, just so long as gay people are considered immoral illegitimate, non-human, sinful 50.0001% of Californian voters who actually showed up to vote approve… because the most valuable right we have as Americans is personal freedom to vote on the rights of people that might not be ourselves OBEY ALMIGHTY GOD responsibly procreate (even with technology and surrogacy so long as the children have straight male/female role models.)

    Proposition 8 – NOT a shipload of crap promulgated by bigoted conservative so-called Republican heterosexist homophobes who are not really bigoted as evidenced by their complete denial of the fact (even the ones who don't deny being bigoted because it is ok to be a bigot as long as you are not being prejudiced but rather do God's will.)

    Did I miss anything?


  • 10. Kate  |  September 18, 2010 at 3:58 am

    Felyx, you should be writing their briefs!

  • 11. Chris in Lathrop  |  September 19, 2010 at 1:48 am

    Absolutely they're going to keep hammering on procreation. That and "redefining" marriage. Those are their Big Lies.

  • 12. Felyx  |  September 18, 2010 at 3:08 am

    The reason this whole thing sounds so damn funny is that they are looking for a reason, ANY REASON, to deny a right…

    Hard to find what isn't there!

    (They are sifting through an ever increasing mountain of hay to get to that one rusty needle!)

  • 13. Richard A. Walter (s  |  September 18, 2010 at 5:04 am

    And they may want to be careful looking for that rusty needle. It could give them a good dose of lockjaw. Oh, wait, maybe they should find it and repeatedly stick themselves with it.

  • 14. Rhie  |  September 18, 2010 at 3:57 pm

    So rusty it immediately disintegrates when they find it, as it is a relic of the 19th century.

  • 15. Ronnie  |  September 18, 2010 at 3:09 am

    They really need to STFU w/the procreation (do a shot) bullshite…It's not a legal prerequisite for marriage. NOBODY is required by law to have children. & they keep insulting, degrading, & demeaning Heterosexuals who cannot procreate because of naturally biological/physical/chosen circumstances….They are reprehensible & totally out of line…. : / ….Ronnie

  • 16. Kate  |  September 18, 2010 at 3:18 am

    There are also many heteros who CHOOSE not to have children, for whatever reasons. Those folks won't be making any accidental babies — hurray!

  • 17. Straight Grandmother  |  September 18, 2010 at 3:26 am

    In order to appeal the defendents must show actual harm. Someone, anyone can anyone point me to the page where the defendets lay out the harm they will be subject to? I didn't read it anywhere first time so I guess I'll go back and try it again.

  • 18. Tomato  |  September 18, 2010 at 3:31 am

    Yeah, I'd like to see some examples.

    How many straight couples divorced because my wife and I got married in 2008? How many fertile married heterosexuals suddenly became sterile because we married? How many good heterosexual parents suddenly became evil abusive parents because our minister and our church and the state of California recognized us as a legally married couple?

    Who was harmed because we married?

  • 19. Elizabeth Oakes  |  September 18, 2010 at 6:09 am

    I was discussing this with some gay neighbors and their kid last night, and we finally agreed that straight marriages are harmed by the dearth of toaster ovens caused by Teh Gayze Recruitment Department's bogarting them all for their evil efforts. A straight marriage cannot survive without proper toasting of things (hence, our "burnt toast" divorce provision here in California) so therefore straight couples and their children are irrevocably harmed by this, and protecting them from carbonized baked goods is a legitimate state interest.

  • 20. anonygrl  |  September 18, 2010 at 7:01 am

    So the answer is we need to start a Toasters for Two-Sex campaign to raise funds to equalize the toasters available to all.

    Sign me up!

  • 21. Elizabeth Oakes  |  September 18, 2010 at 7:57 am

    *jots anonygrl's name on Toaster Equalization Fund roster and sighs, as that is the only name listed*

  • 22. Kate  |  September 18, 2010 at 11:25 am

    You two just keep getting better and better – what fun!

  • 23. Felyx  |  September 18, 2010 at 4:35 am

    I believe Kuhle in the Iowa case was UNAMBIGUOUSLY "clear" on this point… When asked by the Judge what harm would come, specifically to children, Kuhle responded, "Your honor, the harm question is not necessarily that they are harmed physically." He goes on to say, "One could easily argue… that…fostering same-sex marriage will harm the insitution of marriage as we know it." And here is his UNAMBIGUOUS ACTUAL HARM stated clearly and unequivocally… "It will defeat it's [marriage's]… could defeat it's vital purposes." So we can see that this is the harm. The actual harm. (If you didn't catch it then that means you are a fag or a fag sympathizer… which is almost as bad as actually being a fag!) And Kuhle tells us EXACTLY when this will happen… pay attention, he is very specific as to the PRECISE time that it will occur, "It is not going to happen tomorrow… we are not going to see any changes tomorrow, next week, next year, probably not for a generation." If this isn't enough rational for any of you (fags) then here is the stated EXACT UNAMBIGUOUS reasons presented by the expert witnesses (as paraphrased by Kuhle) as to when and how this harm IS RIGHT NOW OCCURING RIGHT NOW, "…our witnesses suggest that you gotta look into the future…" "…there is an easily pictured scenario…that after a generation, maybe two,… people will see or could come to believe that if it is not necessary for a child to have its mother, it's biological mother or it's biological father then what's the need for even getting married?"

    Again, if you missed the horrifying reality of the threat of gender-ambiguous marriage to real marriage then you are a gay homo-fag. To sum it up, if a child can be raised by robots or wolves or a father (as opposed to a mother, a biological mother or a biological father as stated by Mr. Not-so-Kuhle) and God takes vengeance on the world by plunging the moon into the earth in one, or maybe two generations… maybe more, ethicists haven't decided yet, then what, I ask you, WHAT is the purpose of marriage? (And please do not say for love, we all know that is a load of crap.)

    Sin Cerely… (as in 'without' cerity),
    Felyx and Kirill (who are not gay homo fags because we 'get it' if you know what we mean!)

  • 24. Ann S.  |  September 18, 2010 at 4:44 am

    LOL — that's pretty much what Cooper tried to say in explaining away his oft-quoted "I don't know" remarks — we can't know what the harm is, but it's too dangerous to try it and find out.

  • 25. Rhie  |  September 18, 2010 at 3:59 pm

    if a person COULD argue it…why didn't they?

  • 26. Straight Grandmother  |  September 18, 2010 at 6:33 am

    @Elizabeth Oakes, Please take notice of a comment I wrote in reply to one of your comments near the end of the Is Maggie a Bigot topic (I'm pretty sure that is the one). No need for me to repeat, let me just say Ditto, re: above.

  • 27. Elizabeth Oakes  |  September 18, 2010 at 6:44 am

    SG, I only just read your previous comment and I am very touched (I don't subscribe to posts because seeing high numbers of unread emails in my Inbox makes my brain cry.)

    Thank you, and I think it's just because I was raised in a bigmouth household and with the middle name of "Smartypants" (though at the County they call me "Trouble," I kid you not. Affectionately, though.) 🙂

  • 28. Straight Grandmother  |  September 18, 2010 at 7:12 am

    I sooooooo can understand why your middle name was "smarty pants" LOL

    I never subscribe to topics either. When I have the time I prefer to jsut read them all in the interface. Sometimes I miss stuff but usually I go back several topics to see in there are any newer really great comments.

  • 29. AndrewPDX  |  September 18, 2010 at 7:52 am

    @Elizabeth… my mom always told me my middle name was Latin for Trouble… well, it's Latin and starts with a 'T', so I believe she was probably right.

    Let's just say, to this day, when I'm in the grocery store and I hear a 'mom voice' say "Andrew, stop that!" I immediately freeze and say "it wasn't me!"

    Liberty, Equality, Fraternity

  • 30. Jonathan H  |  September 18, 2010 at 6:56 am

    Jack-booted Queens. First they legalize gay marriage, then they make it mandatory. Next step is to outlaw straight sex, and soon after the human race dies out. It's all in Chapter 7 of The Gay Agenda.

    Of course, that document was not submitted as evidence, so it's not relevant to this trial. 😛

    Incidentally, Straight Grandmother, the main reason I'm such a chatterbox today is that I remembered a comment of yours yesterday or the day before encouraging lurkers to post more. See what you're done?

  • 31. anonygrl  |  September 18, 2010 at 7:04 am

    Have a cookie!!!

  • 32. Straight Grandmother  |  September 18, 2010 at 7:08 am

    Woo Hoo you have been recruited into this family. Keep it up you're on a roll. 🙂

  • 33. AndrewPDX  |  September 18, 2010 at 7:52 am

    Welcome to the party, Jonathan! pull up a chair and enjoy the snacks. Can I get you a cup of MILK?

    Liberty, Equality, Fraternity

  • 34. allen  |  September 18, 2010 at 3:28 am

    All I know is this brief gives me more confidence in our case. They're arguments are tired and desperate. Like Ronnie said their arguments are degrading to heterosexuals who cannot/choose not to procreate. I know I would be offended if I were in a straight, non-procreating relationship.

  • 35. Straight Grandmother  |  September 18, 2010 at 7:15 am

    Wel since I am in a straight non procreating marriage (past child bearing years) yes, I am offended. Have you gotten a cookie lately? I htink you also need a cookie I don't recall you having posted lately.

  • 36. Regan DuCasse  |  September 18, 2010 at 10:06 am

    I am DEEPLY offended as one of those straight, non procreating marriages.

    I consulted with my support group of other non parents, called 'No Kidding' founded by a straight Canadian man who feels that people don't take their childbearing too seriously and stigmatize those who CHOOSE not to have children, especially.
    Or treat those without them as if tragic figures with nothing to do but sit in a corner.
    Indeed, there was some research done on non parent married couples who chose not to procreate, and it turns out they are THE HAPPIEST and satisfied of married couples.
    I bet we could included longtime gay couples in that mix too.

    The other offending statements coming from this crowd, is as if us non procreating adults do NOTHING for the benefit of society and otherwise have no contribution to make.
    This insult especially pointed offensively at non mothering WOMEN.

    We work longer hours, take less family leave time from work, and are taxed more heavily.
    And we're not consulted when our paychecks are deducted to contribute to welfare mothers not bright enough to prevent a child THEY can't afford.

    We are taken for granted as people who are worthless and without any talents or skills that contribute to our own, or our community's support.

    Yet, all those horrifically BAD parents out there. The ones who make their children live in poverty. Who neglect them, abuse and murder them. Can't pay for their child's educations, or basics without being at the public trough are seen as victims of bad luck instead of their own lack of restraint or life planning.

    But those of us with MUCH self restraint in that area are getting hammered in this debate. We non parents know our limits to being parents, for whatever reason.
    And another unfair prejudice is the assumption we don't have children because we are selfish and uncaring.

    A majority of those who choose not to have children are highly represented in child supportive professions like pediatrics, school teachers, arts instructors and at risk child mentors.

    And in a world of way over 6 billion and counting, we are on the precipice of a disaster in the making from OVER POPULATION.
    When our human lifespan has been doubled, our ability to have enough jobs and efficiency in resources required that the population be maintained at HALF of what it is now.
    The calculus of expanded fertility years, common multiple birthing, non adoption because of advances in fertility treatment, and lack of housing structures that can house more than two parents with more than two children shows that we're in crisis mode of too many people.

    If anything is to be analytical about the presence of homosexuality, the easy answer is a check and balance to over population and insufficient sustainability of so many billions of people. We've overstocked the foster care and CPS systems in every city in America.
    Strained the welfare state and reduced the argument of marriage to breeding capacity, rather than the happiness and fulfillment and protection of THE ADULTS who mutually consent to marry.

    Yes, they do offend the non parent adults as if their love is otherwise useless to anyone BUT children.

    As if they have no investment in each other or their social network and extended family.

    As if they have no worth simply as human beings.

    If children were SO important to THIS crowd straining to rationalize such discrimination and stigma, then it makes it that much easier for them to be preoccupied with it.
    Instead of with the millions of children who suffer for the abandonment, neglect, poverty, violence, disease, abuse and divorce that visits them every day.

    Can't blame the gays for contributing to those numbers of children in those situations.
    But punishing gays and other adults for NOT doing that, and punishing gay couples with non marriage for doing the RIGHT thing by their significant other AND the children they DO have to support is in complete contradiction to their initial position anyway.

    People this all over the place DO need to shut up and let the grown folks handle their own business.

  • 37. Steve  |  September 18, 2010 at 10:44 am

    The overpopulation argument is really, really weak. If you look deeper into it, you'll notice that it mostly applies to Africa and some parts of Asia. Western countries (and also Japan for example) on the other hand suffer from a low birth rate and over-aging. That will lead to a relatively large decrease in the population – unless offset by immigration – within the next 50 years. And since there are fewer younger people and more older people, a great strain is put on the social support systems. That's already evident in Europe. The only way to pay for older humans is with more younger ones.

    Dwindling natural resources and pollution aside, the problem isn't so much the masses of people, but the huge poverty in half the world. If they had functioning societies, it wouldn't be such a problem.

  • 38. Kate  |  September 18, 2010 at 10:47 am

    Three cheers, Regan! Most of the time I feel as though my pointing out the obvious impact of overpopulation on this planet is seen as evidence of my non-humanity somehow. Forty years ago we were more conscious of this issue than we are now. People who choose not to breed should be the ones who get the tax deductions, not the ones who keep cranking out new child after new child. Once I worked with someone who made the same salary as I. But he had 6 or 8 kids, so his medical coverage fully paid by our employer was massive, far more than his monthly salary in fact. It was as though he was being paid at least twice as much as the rest of us because his church told him to fill the planet with more mouths. When humans are an endangered species, I'll begin to feel differently. That the DIs continue to use "procreation" as their sole argument makes me want to puke. Their fundamentalist religions are already forcing too many humans onto a planet of fast-disappearing resources.

  • 39. Felyx  |  September 18, 2010 at 1:00 pm

    Wow Regan!

    "…reduced the argument of marriage to breeding capacity…"

    Every so-called Christian (supporting 1M1W 'Procreativity') should be horrifically ashamed!

    You are so absolutely right Regan, marriage is so much more!!!

    Felyx (Minus one 🙁 …sigh.)

  • 40. Rhie  |  September 18, 2010 at 4:05 pm

    And we’re not consulted when our paychecks are deducted to contribute to welfare mothers not bright enough to prevent a child THEY can’t afford.

    I agree with you that child-free (either by choice or not) people are generally stigmatized, but I ask that you make your argument without stigmatizing another poorly treated group – indeed, one more poorly treated than the child-free.

    Just as there are plenty of reasons why a woman in any circumstance would choose not to have a child, there are plenty of reasons why a woman on welfare would have a child, besides being too stupid to use birth control.

  • 41. Linda  |  September 18, 2010 at 3:32 am

    Procreation is the only non-religious argument they can proffer, imho. So they stand there, with 'straight' faces, and say, "Marriage is about procreation; so the two people marrying should at least have the appearance of being able to procreate. They don't have to actually go through with it (procreation), but it should *look* like they could."


  • 42. Kate  |  September 18, 2010 at 3:36 am

    It does seem strange to be reading all this stuff from "them" without ever once seeing the words god or bible.

  • 43. Steve  |  September 18, 2010 at 3:51 am

    That's because they are in a court of law. They know that's the one thing they can't say.

  • 44. Kate  |  September 18, 2010 at 4:15 am

    Yeah, I know, Steve. 🙂
    It's just that it is such a tidal shift to see how they avoid those favorite words of theirs.

  • 45. Richard A. Walter (s  |  September 18, 2010 at 5:09 am

    @ Steve: It hasn't stopped them before!

  • 46. Rhie  |  September 18, 2010 at 4:07 pm

    Actually, procreation as the reason for marriage is mainly a Catholic, and so religious, argument.,

    It's the religious argument most easily made to sound non-religious.

  • 47. Jonathan H  |  September 18, 2010 at 5:12 am

    "Nowhere in its 136-page opinion does the district court even cite any of the evidence overwhelmingly acknowledging responsible procreation and child-rearing as the animating purpose of marriage. All of the evidence – the judicial authority from California and almost every other State, the works of eminent scholars from all relevant academic fields, the extensive historical evidence – is simply ignored"

    That was because you never presented any during the trial, guys. Remember the trial? Big quiet room full of serious people using a lot of big words? You may associate it with a sort of red-faced feeling of burning shame.

    You see, it's the judge's job to evaluate the evidence and arguments presented at trial. It is not his job to seek out or discover evidence, that is the job of lawyers. The judge clearly addressed the evidence you presented, which I recall being something along the lines of "We don't have to show you evidence of that".

    I really don't know how much simpler I can break that down without resorting to "See Spot run" levels.

  • 48. Richard A. Walter (s  |  September 18, 2010 at 5:14 am

    And I think that even the level of "See Spot run" would be over their heads.

  • 49. Jonathan H  |  September 18, 2010 at 5:34 am


    I guess I'll go dig out the art supplies and start working on big, colorful pictures. I figure we can work on art after lunch, then have a nice snack, maybe celery & peanut butter with fruit juice. After snack time we'll have a brief nap before it's back to legal theory.

    Remember, no biting!

  • 50. Marlene  |  September 18, 2010 at 7:30 am

    But that's the best part, Jonathan! nibbling on yummy nips!

  • 51. Jonathan H  |  September 18, 2010 at 9:41 am

    <blockquote cite="Myself">
    "no biting!"

    <blockquote cite="Marlene">
    But that’s the best part, Jonathan! nibbling on yummy nips!

    Great Scott, Marlene! The trainwreck you caused in my head by combining my little kindergarten scene with nip-nibbling was just… well it was a grand chaotic work of art, really. You should be proud.

    And now I need some aspirin. And maybe scotch.

  • 52. Kate  |  September 18, 2010 at 11:23 am

    Jonathon, you are GOOD.

  • 53. Jonathan H  |  September 18, 2010 at 5:21 am

    I guess if I click the checkbox it'll probably work better.
    While I'm still chattering, is anyone else astonished by "We don’t have to show you evidence of that”? I'm amazed that we live in a world where that happened. Like, its a matter of public record! For the rest of American legal history people are going to be able to look that up and see that someone actually said that to a federal judge who asked what evidence they'd presented to support their claims. In court.

  • 54. draNgNon  |  September 18, 2010 at 5:39 am

    But, why should they present it as evidence? it's in the dictionary!

    Samuel Johnson, for example, defined marriage as the “act of uniting a man and woman for life.” A DICTIONARY OF THE ENGLISH LANGUAGE (1755). Subsequent dictionaries have consistently defined
    marriage in the same way, including the first edition of Noah Webster’s, AN AMERICAN DICTIONARY OF THE
    ENGLISH LANGUAGE (1828), …

    isn't evidence like copyright? if it's more than 56 years old you should just know it?

    …actually I think a good part of their argument is actually along those lines. see pp 50-51 in the Scribed copy, which is too tedious to copy&paste here.

  • 55. Elizabeth Oakes  |  September 18, 2010 at 6:18 am

    Yes Jonathan, the 'we don't need no stinkin' evidence" defense was shocking to me too. My theory is that they have confused their preaching arena–where they can say anything they want without any evidence and have people believe them–with "court of law", where one really does have to present evidence to establish credibility. I hope this will be their fatal mistake.

    Who was it that said, "Everyone is entitled to their own beliefs but everyone is not entitled to their own facts"? That's pretty much the court's duty, to establish things based on facts. Let's hope the Ninth Circuit finds this new non-evidence submission as bollocksy as we do.

  • 56. Steve  |  September 18, 2010 at 6:24 am

    Then there are more modern dictionaries

    See 1b:

    See (2):

    Though they could just simplify that to:
    "the social institution under which two persons establish their decision to live as spouses by legal commitments, …"

  • 57. Cat  |  September 18, 2010 at 6:30 am

    I don't think it's a mistake on their part. It's the only real defense they have left. "Marriage is (1) traditionally one-woman-one-man and (2) can be defined by popular vote". That's all they have. Fortunately for us we are talking about laws here, and they need to have a rational basis and not conflict with the constitution.

  • 58. Jonathan H  |  September 18, 2010 at 6:43 am

    draNgNon, I know I have only myself to blame for looking that up, but I'm still going to glare a fearsome glare in your general direction.

    I kinda skimmed down to the bit about Sam Johnson, and I saw things that are going to wake me up in the night in a cold sweat. I don't know a whole lot about the law, and an appalling amount of what I do know I learned in the last nine months, following this trial, but it feels like even I could take this down.

    It's a shame my credit's so bad, else I could take out a student loan and go to law school. If these clowns can do it, surely I could!

  • 59. Sagesse  |  September 18, 2010 at 6:47 am


    I particularly like item 10 in 1(b)

    "10. Obsolete . the formal declaration or contract by which act a man and a woman join in wedlock. "

  • 60. Jonathan H  |  September 18, 2010 at 8:21 am

    <blockquote cite="Elizabeth Oakes">
    Who was it that said, “Everyone is entitled to their own beliefs but everyone is not entitled to their own facts”?

    Wikiquote isn't sure whether that was James R. Schlesinger or Daniel Patrick Moynihan. I'm tempted to give it to Schlesinger because he doesn't even get his own page and Moynihan said lots of interesting things.

    It's hard for me to imagine this NOT being a fatal mistake. Frankly I'm kind of expecting the paper to burst into flame from sheer embarrassment when the judges examine it. I suppose there have been weirder decisions, though.

  • 61. John B.  |  September 18, 2010 at 5:27 am

    "“This charge is false and unfair on its face, and leveling it against the people of California is especially unfounded, for they have enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians, including a domestic partnership law that gives same sex couples all the same substantive benefits and protections as marriage."

    Just curious, did these laws come by a voter-approved proposition, or by legislative action? (I honestly don't know). Because if these "sweeping and progressive" "benefits and protections" came from legislation, then not only are they making an erroneous argument, but they are actually making an argument for the LEGISLATURE to make laws (isn't that what they're elected to do anyway?), as they did TWICE in passing a same-sex marriage bill (which was then vetoed by the governor).

  • 62. Don in Texas  |  September 18, 2010 at 5:32 am

    Elsewhere in their brief, the proponents seem to argue that passage of Prop 8 was a legislative act, not an enactment by referendum.

    Can't have it both ways.

  • 63. Sagesse  |  September 18, 2010 at 6:33 am

    @Don in Texas

    When 'the people pass a law or amendment to the state constitution, they are 'legislating'. The force of the law they create is the same as if the legislature passed it. That sort of language is used often.

  • 64. Alan E.  |  September 18, 2010 at 7:09 am

    The language is there, but those actually in the legislature can't change the CA Constitution the same way with a 50% +1 vote. Likewise, they can't take away Prop 8 by a similar vote.

  • 65. Ann S.  |  September 18, 2010 at 5:36 am

    Domestic partnership laws were enacted by the CA legislature.

  • 66. Chris in Lathrop  |  September 19, 2010 at 7:07 am

    "…for they have enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians…"

    So… since we Californians have such a good overall record of progressiveness, we're what, incapable of mistakes? Incapable of mass bigotry, even if duped into it?

    Of course, this is all part of their blanket strategy to try the same bull until it works.

  • 67. Felyx  |  September 18, 2010 at 5:31 am

    “Nowhere in its 136-page opinion does the district court even cite any of the evidence overwhelmingly acknowledging responsible procreation and child-rearing…"

    Wait, did I miss something? Was that actually evidence? I mean, was there any actual evidence? I thought evidence was actual facts that actually proved something?

    confused Gay homo-fag.

  • 68. Cat  |  September 18, 2010 at 6:21 am

    It's common sense! No need for proof, facts, research, studies, and any of those overrated things only exercised by left-wing liberal Berkeley graduate intuhlectuals working at these snob universities. You don't even have present it in court. Pretty much all people, including most judges, already know this. Only this gay activist San Francisco judge has no common sense. You should fire him!

  • 69. Rhie  |  September 18, 2010 at 4:11 pm

    I'd laugh except Mom said something similar to me, with a straight and serious face, when I brought up the fact that research clearly shows LGBT to not be a choice.

    She also doesn't believe in science. -__-

  • 70. Don in Texas  |  September 18, 2010 at 5:34 am

    I can't wait to see how completely Ted Olsen and David Boies totally destroy these arguments when they file their response next month.

  • 71. Ann S.  |  September 18, 2010 at 5:36 am


  • 72. Felyx  |  September 18, 2010 at 5:59 am

    Olsen and Boies should make it challenging for themselves… perhaps they can write the whole brief in iambic pentameter or maybe without using the letter /e/… you know, to make it challenging.


  • 73. BK  |  September 18, 2010 at 10:33 pm

    ROFL, Felyx! They definitely should use iambic pentameter! That would make the brief even more fun to read. 🙂 I wonder if they could make it rhyme *and* use iambic pentameter… that would make for an interesting read. 🙂

  • 74. Tomato  |  September 18, 2010 at 11:13 pm

    One of my literature professors gave us a passage from a physics textbook that was written in iambic pentameter and in sonnet rhyme scheme. It was fabulous! Olsen and Boies could have a lot of fun with that… and literature students would be reading it in class for years to come!

  • 75. Kate  |  September 18, 2010 at 5:39 am

    Bring me the waaambulance — I don't want to have to wait a full month!!!!

  • 76. draNgNon  |  September 18, 2010 at 5:42 am

    the timing of that filing is going to be interesting. depending on how they say it, and when they say it, and how it's reported, the result might be a seriously fired up conservative base just in time for November elections.

  • 77. Straight Grandmother  |  September 18, 2010 at 7:21 am

    Oh and our buddies Olson and Boies did not ask for extra pages. So we won't have to read (how many pages what that appeal by the DI's 180 pages or something) what is that word Richard Walter jsut used, oh yes, 180 pages of tautology.

    Olson & Boies will no doubt make their point back it up by the trial record adn be suscint but thoroughal.

  • 78. karen in kalifornia  |  September 18, 2010 at 5:46 am

    Thank you all for the entertaining reading for my weekend.

  • 79. Richard A. Walter (s  |  September 18, 2010 at 5:57 am

    Glad to help. Here have some cookies, MILK, coffee, and challah.

  • 80. Adam G.  |  September 19, 2010 at 8:00 am

    Could I have a few of those bacon-wrapped scallops, too?

  • 81. Cat  |  September 18, 2010 at 6:09 am

    Are they serious they want to bring more 'experts' that are prepared by the D-Is to quote from ancient 'scientific' publications without peer review, and have them deconstructed into a puff of stale air by Boies?

    Of course they are not. But it sure sounds good when you say "the judge dismissed our massive mountain of evidence", and one can hope and pray that writing down such lies somehow makes it truth. Just like the "the judge scared away our witnesses" defense.

    And what's this wining about not having to return copies of confidential records? The judge didn't say that they are no longer confidential, did he? You can't return information like you can return a borrowed pen. It's part of the case record, and lawyers will need to handle it as confidential, which they are trained to do.

    I thought they were only pulling this misinformation stunt in their statements to the public (and their donors), but I'm baffled they try this on the 9th district court. And angry too, frankly.

  • 82. Elizabeth Oakes  |  September 18, 2010 at 6:29 am

    Color me nutty, but I have a sneaking suspicion that at least one of the Ninth Circuit judges will, ya know, actually look at the trial record to see if that mountain of evidence exists. And I think they may actually even figure out that it doesn't and that *gasp* the Proponents are misrepresenting the arguments in their favor here.

    I further suspect that some of the judges–because, ya know, they're supposed to be regarded with some level of respect for their knowledge and legal wisdom–might be offended by the childishness of this tactic, not to mention the direct assaults on the character and ethics of one of their colleagues.

    And my fervent wish is that they write a decision so scathing that it makes the churlish, dogmatic Justice Scalia look like a cute little laughing baby in a Hello Kitty bib by comparison. And I hope they do it by New Year.

  • 83. Michelle Evans  |  September 18, 2010 at 6:46 am

    Actually, as has been seen in other states, the unfortunate suspicion might instead be that one or more of the judges on this 9th Circuit panel will read the Proponents arguments, and find validity in them. That doesn't mean that they actually have any valid argument, other than what they pull out of their derriere, but that has not stopped judges from siding with them in the past.

  • 84. Elizabeth Oakes  |  September 18, 2010 at 6:51 am

    Trust me, Michelle, I am aware and afraid of that possibility. I have come to see that the law is like the bible in that regard–you can cherry-pick statements to support pretty much any personal viewpoint.

    However, I would be more afraid if this filing had stronger logic and effectively cited more recent law. I allow my hopes to remain high for the moment, though I'm sure that feeling will change and range as time and developments go on (everyone here knows what I mean, I'm sure.)

  • 85. Straight Grandmother  |  September 18, 2010 at 7:30 am

    @Michelle Evans, don't forget the must find a compelling reason that is higher than rational basis. They have to prove in their appeal that the state has a compelling interest, not just any old interest because they are denying GLBT people of a basic liberty/fundamental constituitional right. They would have to proove that permitting gender neutral marraige will result in less procreating for example. Personally I didn't find any of that in their 179 pages of tautology (my newest favortie word).

  • 86. Sagesse  |  September 18, 2010 at 6:13 am

    For some reason, I read Imperial County first, and am still fighting my way through the Proponents brief.

    Is it just me, or is the Imperial County brief less…. hysterical… histrionic…. hyperbolic…. ? The arguments may be no more robust, but at least the tone is logical and respectful.

  • 87. Ann S.  |  September 18, 2010 at 6:15 am

    It's mercifully shorter, anyway.

  • 88. Sagesse  |  September 18, 2010 at 6:41 am

    And it's fresh tripe, instead of the same old regurgitated tripe they put in their arguments to the 9th circuit against the stay.

  • 89. Straight Grandmother  |  September 18, 2010 at 7:26 am

    My husband loves tripe, we actually have some left over tripe in the refridgerator. You can buy it in the grocery stores here. I am not a fan.

  • 90. Alan E.  |  September 18, 2010 at 7:31 am

    The Asian market near my house has cow tongue. I have never tried it, but I am tempted to buy it (once I know how to prepare it). I know it is just muscle that has been worked a lot. Tripe, I don't think I could ever convince myself to try.

  • 91. Straight Grandmother  |  September 18, 2010 at 8:47 am

    Alan E. Yup cow tongue over here also, just out there in the meat department. As well as skinned rabbit and roosters and oh other odd things. My husband likes chicken with thier feet still on as the feet make the best chicken broth but those are now harder to get.
    Oh here is a good one. My husband and I participate at a new (new as in jsut pressed the new harvest) olive oil and truffle festival in January every year. So we bought a nice truffle and was talking to our daughter about it and how we would eat some now and put the rest in duck fat. So she askes, "Where do you get the duck fat from?" Yup, also jars of duck fat sold in the grocery stores, real good duck fat I should add.

    Then there is somthign called pied paquet. I am not positive but I believe it is meat from the foot of the pig stuffed into little packets of sheep stomach tied up with a string. I actually love this. You cook it for 24 hours real real low heat, real low, cooked in a tomatoe sauce. My brother in law only cooks his on a wood fire, he swears that the process of the wood slowly buring down and then firing it back up again with new wood is what makes his so particularly flavored. Not that I have seen it lately but when we were first married my husband's aunt raised guinea pigs for thier meat 🙂

  • 92. Dave  |  September 20, 2010 at 3:06 am

    I did the same thing. Read Imperials first. And thought it was cogent, although faulty logic.

  • 93. CaliGirl  |  September 18, 2010 at 6:16 am

    The only thing more interesting on this site than the posts are the comments made by the P8TT community.

    Seriously, I love you guys. You've consistently made an emotionally upsetting topic much happier for me. <3

  • 94. Elizabeth Oakes  |  September 18, 2010 at 6:30 am

    🙂 Right back atcha, CaliGirl. Thanks for being here.

  • 95. Kate  |  September 18, 2010 at 6:34 am


  • 96. BK  |  September 18, 2010 at 10:38 pm


  • 97. JonT  |  September 18, 2010 at 6:43 am

    The top of page 35 (DI's brief) is interesting logic:

    'Again, rational basis review is satisfied whenever “legislative judgments” are “debatable,” and the district court’s decision to hold a trial at all was itself a determination that Proposition 8’s rationality is debatable, thus mandating judgment upholding the measure.'

    So, basically, since there was an actual trial, then obviously rational basis was therefore met, and the trial should therefore been decided in favor of prop 8.

    WTF? 🙂

  • 98. Ann S.  |  September 18, 2010 at 6:52 am

    Uh, NO. That doesn't make sense to you because it doesn't make sense.

  • 99. Alan E.  |  September 18, 2010 at 7:11 am

    Very Catch-22.

  • 100. Jonathan H  |  September 18, 2010 at 10:45 am

    Criminal trials require that guilt be proven beyond a reasonable doubt. By the logic shown above, anyone brought to trial on criminal charges must be acquitted, because giving them a trial shows reasonable doubt.

    At this point I would like to mention that one of the constitutional clauses Prop8 was found to be in violation of was Due Process. I've spent about a half hour now trying to work out how to finish this paragraph and really there just doesn't seem to be a need to because that's easily the stupidest thing I've seen all week! (I'm still occasionally glancing at the brief, so it may yet get topped).

    Seriously that claim needs to be drug out into the street and shot! It's a good thing Star Trek isn't real because if Mr. Spock were to read that he'd drop dead of apoplexy.

    As near as I can tell, they seem to be trying to bury the relevant parts of the case in so much bullshit that the opposition gives up. That's an effective tactic in a public debate or a conversation when you care more about "winning" than being right, and I suppose you could use it to keep a jury distracted or at least confused. It couldn't possibly work in their favor here though, could it? Seems like all it could do is waste time and possibly annoy judges.

  • 101. Rhie  |  September 18, 2010 at 4:17 pm

    I have a macro I wish I could plaster all over their briefs…(heh the pants kind and the written)…

    It has Spock looking very reproachful with the caption:

    THAT IS ILLOGICAL YOUR RAVING F***TARD! only without the stars.

  • 102. Jonathan H  |  September 18, 2010 at 9:02 am

    I wonder if there's any overlap between the people behind the D-I's here and the Kitzmiller v. Dover trial a few years back. It has the same sort of feel to me, lots of hype and bluster about how they have mountains of scientific evidence on their side and an army of expert witnesses so that they'll easily crush their enemies, see them driven before them, and hear the lamentation of their women.

    Then when the trial rolls around they present weak arguments with lots of hand-waving. The scientific evidence never appears, all but a few of the witnesses have refused to testify and the ones who do only weaken their case further. The plaintiffs calmly present science and experts and then a conservative Republican judge hands down a clear, well-written decision and is promptly declared a liberal activist by talking heads on Fox News.

    Hrm, has Judge Walker received any death threats over this? I'm curious how far the similarities go.

    Of course, it could just as well be a similar mindset, that sort of stubborn, unthinking, "I'm on God's side, so why work too hard when I can't lose?" kind of attitude. But the similarities are interesting.

  • 103. Elizabeth Oakes  |  September 18, 2010 at 9:09 am

    Jonathan, LOL@ first paragraph and so true, but then Judge Walker said, "I put on my wizard hat and cape…."

  • 104. Jonathan H  |  September 18, 2010 at 9:47 am

    I had to stand up quickly after reading that for fear that I'd break my chair laughing. You managed to live up to "Smartypants" and "Trouble" in one sentence!

  • 105. Elizabeth Oakes  |  September 18, 2010 at 10:00 am

    Aw pshaw. I'm glad you got the reference, always nice to see a fellow geek in the room. 🙂

  • 106. PhillyKarl  |  September 18, 2010 at 9:55 pm

    As a Biology professor, the similarity between this trial and Kitzmiller v. Dover was the first thing I noticed. And I expected it. How could it be otherwise? They both involved an attempt to take an issues that was 100% religious, and try to find a way to make it look nonreligious. Thats why it was virtually impossible to find scholarly witnesses to defend them. BECAUSE THEY DON'T EXIST. Here's what I find laughable – the argument that the pro prop8 witnesses were afraid to testify because it would jeopardize their careers. There are more than 200 CATHOLIC colleges and universities in the US.. They couldn't find tenured professors of psychology, sociology, or family law from ANY of them to support their position? Because they were afraid of retribution from their CATHOLIC colleges and universities? ROTFLMAO!

  • 107. Rhie  |  September 18, 2010 at 11:19 am

    Oh for…the love of…my cat in the box. I swear.

  • 108. Petr Tomeš  |  September 18, 2010 at 5:41 pm

    They have done the misrepresentation and the trick again:
    “Children who grow up in a household with only one biological parent are worse off, on average, than children who grow up in a household with both of their biological parents, regardless of the parents’ race or educational background, regardless of whether the parents are married
    when the child is born, and regardless of whether the resident parent remarries.”
    When comparing the outcomes of different forms of parenting, it is critically important to make appropriate comparisons. For example, differences resulting from the number of parents in a household cannot be attributed to the parents’ gender or sexual orientation. Research in households with heterosexual parents generally indicates that – all else being equal – children do better with two parenting figures rather than just one. The specific research studies typically cited in this regard do not address parents’ sexual orientation, however, and therefore do not permit any conclusions to be drawn about the consequences of having heterosexual versus nonheterosexual parents, or two parents who are of the same versus different genders.

    According to Herek’s extensive review of the literature in 2006, the research on which opponents to
    marriage of same-sex couples rely, look at the functioning of children in intact families with
    heterosexual parents compared to those children raised by a single parent following divorce or
    death of a spouse. They do not include studies that compare the functioning of children raised by
    heterosexual couples with the functioning of children raised by same-sex couples. In this group of
    studies, any differences observed are more accurately attributable to the effects of death or
    divorce, and/or to the effects of living with a single parent, rather than to parents’ sexual
    orientation. These studies do not tell us that the children of same-sex parents in an intact
    relationship fair worse than the children of opposite-sex parents in an intact relationship.

  • 109. MJFargo  |  September 19, 2010 at 12:42 am

    I have yet to find one study–particularly ones cited by the proponents–that shows GLBT couples/families are different than heterosexuals. If you go read any study they cite, they are misusing the conclusions, misrepresenting the groups studied, or they aren't scholarly/peer reviewed.

    Throughout the trial, I kept holding my breath that they'd come up with something…ANYthing. And I've concluded that their insistence that the trial not be televised is because they know they are misrepresenting evidence and didn't want to be caught….so they can keep on trying to convince people their is evidence.

  • 110. Petr Tomeš  |  September 19, 2010 at 5:18 am

    "The Canadian Psychological Association is concerned that some are mis-interpreting the findings of psychological research to support their positions, when their positions are more accurately based on other systems of belief or values."

    According to the Maine Chapter of American Academy of Pediatrics "Those who claim that children need a biologically related mother and father to flourish are either ignorant of the scientific literature or are misrepresenting it or both. With all respects people are entitled to their beliefs and even their biases but it is plainly wrong to call those beliefs and biases science."

  • 111. Michael  |  September 18, 2010 at 7:10 pm

    No one in California in Sept-Nov. of 2008 who watched TV and saw over and over and over and over any of the commercials by the shrill anti-gay pressure groups for Prop. 8 could come to any other conclusion than they were based on "animus toward gay people." Simply submit the nasty commercials as evidence.

  • 112. Rhie  |  September 19, 2010 at 4:32 am

    I am pretty sure they did, or tried to. I remember a mention of playing at least part of the Gathering Storm one.

  • 113. Anonygrl  |  September 20, 2010 at 3:32 am

    A number of those commercials were entered into evidence, and Walker had them put up on the site that also had some videos of the depositions of the experts who refused to testify in court because they were so terrified of video cameras… errr… did anyone spot the inconsistancy there?

    Those were the same pieces that were brought into evidence by the Olson and Boies during the trial.

  • 114. Rhie  |  September 20, 2010 at 4:01 am

    AH, thank you!

  • 115. omini  |  September 19, 2010 at 11:01 am

    I had an epiphany the other day whilst pondering the utter stupidity of the procreation arguement: if what they really had a problem with are marriages that dont result in children, why didnt they put a ballot saying "only marriages that result in one or more children are valid or recognized in the state of california. " up to a vote? Why did they go after the gays when all they really wanted to do was make sure marriages produced kids? Oh ya, thats right. They dont really belive that marriages must make children, they just dont like gay people.

  • 116. Felyx  |  September 19, 2010 at 11:45 am

    Actually your epiphany is real argument and a serious rational. The more scrutiny required for a law, the narrower in scope the law will have to be in order to pass muster.

    Putting a measure on the ballot as you suggested, (not unlike this one…… )

    would have been more likely to pass judicial review (assuming enough people actually voted for it.) Of course the sticky part is this, gays can still reproduce naturally, through IVF, potentially with genetic engineering, by proxy (adoption) and of course the good ol' turkey baster. Moreover, the reality of genetic engineering and its ability to moot the 'biological parents' portion of the argument is very threatening in the mind of the fundamentally indoctrinated.

    In essence, preventing same-sex partners from marrying really is the only possible use to be made of this law!

    Once again stating the obvious,

    PS: I often ask why the law doesn't say 1 man 1 woman 1 time? Oh yeah, then marriage really would be threatened!

  • 117. Melissa  |  September 20, 2010 at 5:11 pm

    I was just thinking the same thing – is my marriage not valid because I don't want to have kids? Or what about heterosexual couples that can't conceive? In addition to the heartbreak of not being able to have children, let's just tell them their marriage is no longer recognized.

    On the flip side, I love how "unintentional procreation" is okay, because it's between one man and one woman.

    Everytime I read this procreation crap, I just want to scream. If I sounded this stupid, I would like to think I would stop talking.

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