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9th Circuit Perry v. Schwarzenegger hearing: analysis and discussion

9th Circuit Court of Appeals Prop 8 trial Statements Trial analysis

By Adam Bink

Well, that was something. Some brief reactions:

(a) Cooper’s constitutional argument turned almost entirely on the word itself- marriage- and as Brian noted in our live-blog thread, that this word is simply special.

(b) Very interesting and promising that Judge Hawkins seemed to ridicule Cooper’s discussion of the Romer v. Evans case when Cooper said that case was far-reaching and different, interjecting, if you take away a bunch of rights, it’s not okay, but if it’s one right [marriage], then it’s ok? Cooper could not square the circle that, to him, Amendment 2 was a noxious and over-the-top move by the voters of Colorado, but taking away the fundamental freedom to marry from same-sex couples is fine by him, and Hawkins seemed to note that.

(c) Tyler was terrible. Couldn’t explain why the clerk herself wasn’t there, made numerous factual mistakes, unprepared to respond to challenges from the judges.

(d) Ted Olson hammered home repeatedly, and without interruption that the US Supreme Court has never said marriage is just between man and woman when ruling in the context of prisoners, contraception, divorce, other cases that marriage is (a) liberty (b) privacy (c) association (d) identity. He noted the Supreme Court said this 14 different times. That, along with Olson’s discussion points that (a) even if raising children in same-sex households were a problem, the remedy is not to deny the freedom to marry to same-sex couples, and (b) as Brian put it, you can’t wall off a right because children shouldn’t be exposed to sexuality… it just doesn’t stand up to even the lowest level of rational basis- seemed to be the most poignant in the entire day.

I will be posting further reactions from others throughout the afternoon, as well as the scene from outside the courtroom.

What are your thoughts on how it went?

Update: Excerpt of a statement from Freedom to Marry’s Evan Wolfson:

“Earlier this year, the anti-gay forces behind California’s Prop 8 were yet again shown to have no evidence and no good arguments that would stand up in the light of a courtroom, under oath and cross-examination. Lacking any serious expert witnesses or facts to justify marriage discrimination, they fought to block cameras from the courtroom and actually asserted that they ‘don’t have to have evidence.’ After Judge Walker conclusively found that they had failed to justify stripping the freedom to marry away from California’s gay couples, the anti-gay groups swiftly took to attacking the judge.

“Today, unable to hide, these same opponents of equality stood before appellate judges and, this time, cameras, and all the world could see what a majority of American people have already come to understand: there is no good reason for continuing to exclude committed loving couples from the legal commitment of marriage. When the gavel came down, it was clear yet again that the anti-gay forces still have nothing. Their case is, in Lincoln’s words, ‘as thin as the homeopathic soup made by boiling the shadow of a pigeon that starved to death.'”

Update 2: Karen Ocamb has a good and quick summary of the pre-trial rally.

Update 3: Anti-equality folks outside the courthouse:

Anti-equality folks outside the courthouse

Update 4: Brief reactions from some trusted legal eagles in the legal community around marriage equality are coming in. I’ll get them up later.

Update 5: First reaction from members of the legal community: here’s what Evan Wolfson sent me over e-mail:

Most striking was the complete failure — I mean complete! — to show how Judge Walker erred in his marshaling of the facts, evidence, cross-examination, and record showing a lack of a legitimate, sufficient reason for stripping away gay people’s freedom to marry.  They came in with nothing, and left nothing for the court.

Update 6: Shannon Minter of the National Center for Lesbian Rights, who was the lead attorney on the In re Marriage Cases often cited in today’s hearing, and who we invited on for an open Prop 8 trial Q&A a few months back along with his colleague Chris Stoll, sent in the following to me over e-mail:

Hey Adam- The argument went very well for the plaintiffs.  Judges Reinhardt and Hawkins seemed quite critical of Charles Cooper’s claim on behalf of the proponents that Prop 8 could be justified based on arguments relating to procreation.  The judges pressed Cooper on how procreation could be a justification for Prop 8 when California law gives same-sex couples exactly the same parentage rights as heterosexual couples.   The judges were very tough on both sides on the question of standing.  But in the end all three judges seemed highly skeptical that Imperial County has standing, and they also seemed convinced  that current U.S. Supreme Court precedent casts much doubt on whether the proponents of Prop 8 have standing either.

Last, Therese Stewart from the San Francisco City Attorney’s office did a brilliant job of laying out why Prop 8 is uniquely irrational based on the unprecedented circumstances under which it was passed. No other state has first said that gay couples have a constitutional right to marry, and then taken it away.

Update 7: Shannon has a longer reaction over at Karen Ocamb’s space.

Update 8: Just learned David Boies will be on Hardball within the hour. I’ll be watching and will update with notes.

Update 9: Predictably given their attempted pre-buttal of this hearing, NOM throws a fit:

National Organization for Marriage Decries Biased Hearing in Ninth Circuit

National Organization for MarriageTM (NOM) today decried the hearing to determine the constitutionality of Proposition 8, California’s constitutional amendment providing that marriage is only the union of a man and a woman. NOM is protesting the involvement of Judge Stephen Reinhardt because Reinhardt’s wife has been involved in the case from the beginning as the Executive Director of the ACLU of Southern California.

“This hearing makes a mockery of the federal judiciary,” said Brian Brown, president of NOM. “Citizens are entitled to a guarantee of impartiality from their judiciary. Yet here we have the spectacle of a federal appeals court justice ruling on a case in which his wife represents a group that is a participant. A cynic would be left to wonder if the fix is in for marriage in the Ninth Circuit.”


“Chuck Cooper did an extraordinary job defending Proposition 8 and the right of California voters,” said Brown. “Cooper made a compelling case that not only is limiting marriage to a man and a woman a rational position for voters to take, it is the position taken by virtually every other country on earth, and indeed virtually every nation throughout the history of civilization. However, it’s hard not to think that none of that will matter when a Judge like Stephen Reinhardt, who has such an obvious conflict, is allowed to sit in judgment of the people of California.”


“The long road to determine the constitutionality of Proposition 8 cannot be allowed to go through the courtroom of a Judge whose wife is a key participant in that case,” said Brown. “It’s obvious that Reinhardt will vote to overturn Prop 8. We can only hope that once this case reaches the U.S. Supreme Court, that the people of California will finally get an impartial day in court. When they do, we are confident that marriage as the union of one man and one woman will be vindicated.”

Never mind judicial independence, never mind Reinhardt’s occasionally-sharp lines of questioning, never mind anything with these folks. No, what is a “mockery of the federal judiciary” is Brian Brown and NOM.

Update 10: Rick is at a post-trial press conference with Cooper. He sent back the following dispatch:

Cooper says that he respects the other side and regrets that they do not respect him/his arguments equally. He says that in order to find for the plaintiffs, the courts must find tens of millions of Americans who voted against marriage equality. Cooper said the other side are demeaning and ridiculing. He continues by arguing that all Californians are victims if their elected leaders do not carry out the law, and that voters are sovereign.  This is laying grounds for anti-court hatred.

Update 11: David Boies and Chad Griffin are now live on Hardball. Boies makes the point that there’s no useful societal point to banning s-s marriages. Griffin talks about “state-sanctioned discrimination” and how it gives license to other forms of discrimination. Matthews asked if Boies’ argument would have been credible in the early days of our republic. Boies responds that (a) The bias we see today against gays and lesbians is a product of the last 100 years (b) originally, this country was “we the white male propety-owners”. Griffin in response to a question from Matthews says this should not be up to a vote of the people. Matthews asks about possibility of getting Scalia-types on this. Boies says “we’re not giving up on any of the justices b/c if  you look at Ted and myself, it’s hard to find two on the most opposite poles of the political spectrum” [paraphrasing]. Griffin briefly discusses inter-racial marriage. Matthews says thanks, they sign off. They both did very well.



  • 1. Ronnie  |  December 6, 2010 at 6:16 am

    Thanks for all the coverage…<3…Ronnie

  • 2. Michael  |  December 6, 2010 at 6:20 am

    My favorite part was when Olson said something to the effect of, "They're worried that it will expose kids to sexuality at an early age? By that logic, you'd have to ban comic books, movies, video games, television and conversations with other children."

  • 3. Maura McGurk  |  December 6, 2010 at 6:37 am

    Michael, that was fantastic! I also really liked the imagery of "encircling gay people with a fence"–that made it so stark and clear.

  • 4. RevChewie  |  December 6, 2010 at 6:48 am

    That was one of the best one-liners I've ever heard. Just brilliant!

    Hoping my friends will soon have the same rights I, as a straight man, already have.

  • 5. Elizabeth Oakes  |  December 6, 2010 at 6:50 am

    Or conversations with their parents about basic body parts.

  • 6. jimi  |  December 6, 2010 at 7:07 am

    Don't heterosexuals also have "sexuality?" Or are they better at locking bedroom doors?

  • 7. DaveP  |  December 6, 2010 at 10:42 am

    EXACTLY. Sheesh. The anti-equality folks are arguing that exposing kids to ideas about same sex couples getting married will somehow make the kids start thinking about sex, but that exposing kids to ideas about OPPOSITE sex couples getting married will NOT ????

  • 8. Straight Ally #3008  |  December 6, 2010 at 8:57 am

    By that logic, you’d have to ban comic books, movies, video games, television and conversations with other children.

    Not surprisingly, the Relgious Right would have no problem with that.

  • 9. Adam G  |  December 6, 2010 at 9:06 am

    Hear, hear. Let's ban all things that children might see that might let them know that life is not all roses and bunnies and rainbows. Oh, wait, we better not let them see rainbows, either, because THEY'RE SO GAY.

    *sigh* Helicopter parenting taken to a whole new level – and these are the people who also complain about the "nanny state". Incredible.

  • 10. Warner  |  December 6, 2010 at 6:22 am

    is court adjourned for the day, or simply the afternoon?

    I am looking forward to hearing more.

  • 11. Jeff  |  December 6, 2010 at 6:26 am

    There's no more to hear – the court scheduled two hours and its done until they rule.

  • 12. Simon  |  December 6, 2010 at 6:24 am

    Watched it all. I predict a ruling in our favor on the issue of standing but I think they will still want to provide some kind of opinion on the rest of the matter somehow and will rule 2-1 in our favor.

  • 13. Dave  |  December 6, 2010 at 7:08 am

    Actually Simon, I think even Smith was leaning more toward the plaintiff's side. It very well may turn out being a 3-0 ruling.

  • 14. Coronal  |  December 6, 2010 at 8:05 am

    If so, that should effectively torpedo NOM'S whining about Reinhardt’s "bias".

  • 15. Cat  |  December 6, 2010 at 8:48 am

    I'm sure they'll claim Reinhardt corrupted Smith… If you don't care about speaking the truth there are an infinite number of things you can say to make your point…

  • 16. Chris in Lathrop  |  December 6, 2010 at 9:10 am

    I can just see the NOM/WND headline now: Reinhardt Corrupts Smith in Fit of Judicial Arrogance

  • 17. Dan  |  December 6, 2010 at 8:59 am

    Yeah, they're in trouble (Yes on 8) if they can't even win over the Mormon judge. Funny there's all this whining from NOM about Reinhardt and his wife's involvement with the ACLU when Smith's religion was the biggest proponent of Prop 8.

  • 18. Leah  |  December 6, 2010 at 6:24 am

    I think it went well, in general, about getting this court to really think about discrimination against and the rights of gays and lesbians. Two things come to mind for me:
    1. They will probably rule in this go-round that the case has to go back to answer the question about representation. If nothing else, to avoid having to deal with this issue right now.
    2. If they do keep the issue, the fact that we were allowed to marry and then NOT allowed to marry, will be a major factor in their decision. A right was given, then taken away.

  • 19. BobN  |  December 6, 2010 at 6:26 am

    It was interesting to see the different body language used by Boies and Olson. Boies extends both hands, open, with fingers extended in an almost pleading gesture while Olson mostly raises one hand as a fist with the index finger extended as though instructing the Court. He seems to aware of this and tries to stop himself or modify the gesture so it doesn't seem so pushy but can't help himself.

  • 20. Ķĭŗîļĺę&  |  December 6, 2010 at 6:26 am

    Fascinating hearing!
    Judges showed us their impartiality by asking hard questions both sides.
    I liked how judges were grilling Cooper and Tyler as I was grilling my chicken earlier for dinner.
    I also liked the well-known to us already premise that marriage is for idiots who have babies by accident of being virile and horny, not for having a lifelong special loving relationship within which people decide to have children because they trust each other to be wonderful parents to those children and stick together in love.
    Looking forward to the decision!

    — ♂K♥F

  • 21. Steve  |  December 6, 2010 at 7:05 am

    I too found it funny how they claimed that opposite-sex marriage is special because people can have babies by accident. When in the Walker trial they were all about "responsible procreation".

  • 22. clayton  |  December 6, 2010 at 8:12 am

    I, too, found all the discussion about accidental procreation to be laughable. It was as if Prop 8 proponents were arguing that the highest function of marriage was to protect children against their parents' procreative mistakes. Since gay couples can only have children intentionally, Cooper seemed to argue, those children have no need of protection. Of all the weak arguments the Prop 8 and NOM crowd have ever advanced, this had to be the weakest.

  • 23. Cat  |  December 6, 2010 at 8:54 am

    It's much like the Black Knight in the Holy Grail movie. The Prop.8 proponents keep losing key arguments, and even when they have nothing left, they'll keep going at it, way beyond the point of being ridiculous.

    The Black Knight always triumphs! Have at you! Come on, then.
    [ARTHUR chops the BLACK KNIGHT's last leg off]

    Oh? All right, we'll call it a draw.
    Come, Patsy.
    Oh. Oh, I see. Running away, eh? You yellow bastards! Come back here and take what's coming to you. I'll bite your legs off!

  • 24. Straight Ally #3008  |  December 6, 2010 at 9:00 am

  • 25. Felyx  |  December 6, 2010 at 9:51 am

    OMG!! Too funny! That is exactly how the pro-hate side sounds! You tell them that it is blatantly obvious that they are discriminating and they deny and just outright lie!!!

    Spot on SA!

  • 26. Ķĭŗîļĺę&  |  December 6, 2010 at 9:52 am

    Seems to me that Proponents think gay people are so responsible that they never make mistakes if they decide to become parents to their children and do it not by accident… As if gay people never walk away from their children and other stuff never happens in their life. Yeah, right! These things can happen in any family, including a gay one, and having marriage sometimes domesticates married partners giving them a reason to stay together and work out their issues before doing something very extreme like divorcing… That is why marriage equality is so important.

    — ♂K♥F

  • 27. Catherine  |  December 7, 2010 at 12:47 am

    Yes, it is ridiculous. However, they are hammering this point because there is a New York case (I cannot remember the name) where the court used that very "logic" to allow discriminatory practices against gays to stand. That's why they are using the argument, it is a legal precedent. The New York Supreme Court ruled that because we generally do not bear children by accident—what a compelling principle to base equality upon—because our households are more likely to have children, if we have them, because we want them, we don’t need the same encouragement toward stability, the same social supports and benefits as do those reckless heterosexuals.

    It's such a stupid argument, especially in light of old Brian Brown and his ilk talking about the special nature of marriage and how it's only for one man-one woman. Well, the legal reasons being put forth for the exclusion are really special, aren't they – heteros can't be bothered to reproduce responsibly and when they do make mistakes they don't want to own up to them and need to be incentivized to stick together. Wow, that's truly special.

  • 28. Daily Lurker  |  December 6, 2010 at 12:22 pm

    It really does seem that, confronted with the idea that "any two people who love each other should be able to enter a lifelong commitment to each other," the NOMers respond "marriage ain"t about love, it's about f**king!"

    If thy just called themselves NOF, I'd have more respect.

  • 29. Peterplumber  |  December 6, 2010 at 12:33 pm

    hehe hehe
    I like that one

  • 30. bonobo & mom  |  December 6, 2010 at 6:28 am

    signing on

  • 31. Ann S.  |  December 6, 2010 at 10:04 am


  • 32. Dave in ME  |  December 6, 2010 at 6:29 am

    superscibing, yo.

    Dave in Maine

  • 33. bry  |  December 6, 2010 at 6:30 am

    I haven't gotten to watch yet cause I've been in class all day but it appears fromm what I read that we really wiped their butts on this one. 3-0 in our favor, and onto the supremes!!! The trojan horse strikes~

  • 34. anonygrl  |  December 6, 2010 at 6:32 am

    My biggest response to what I have read is that Cooper's arguments make less and less sense as time goes on. He couldn't get past the judges on why the word marriage is the sticking point if same sex couples have all the other rights of marriage. He seems to have flubbed twice with Loving v. Virginia, first arguing that it did not make sense that people could vote to take away the right to interracial marriage, and later claiming that because Loving v. Virginia would have been ruled on differently FIFTY THREE YEARS AGO if it had been about same sex marriage, this meant something about how we should view same sex marriage today.

  • 35. Charlie Galvin  |  December 6, 2010 at 6:32 am

    I've been following here and via Twitter. The judges' questions don't necessarily tell you how they will rule, but they do indicate what points of law they consider important to their decision. I found it interesting that even Judge Smith asked questions that seemed to indicate he might be seeing some things our way. I can't believe that the proponents and Imperial County were so lame—again! Did they learn nothing from the trial about preparing their argument? We went from "What harm?"—"I don't know" to "What case?"—"I have no case." I'd like this to be over, but I'm also dying to know whether they'll be saying the same sort of thing to SCOTUS!

  • 36. Daily Lurker  |  December 6, 2010 at 12:25 pm

    Could it be that they don't present a better case because there IS NO BETTER CASE? (Yes, I'm shouting.)

  • 37. Shelly  |  December 6, 2010 at 6:33 am

    Well now this i think went very well 4 us. So when is the court supposed 2 make a ruling or the court 2 hold more hearings on this important issue? Happy 2 b online again it's been awhile been writing our book. Now we leave to go to Italy on the 12th of Dec hopefully my wife can get a job somewhere in Ireland then we can live there temporarily until the U.S. gets their ass in gear & does the right thing finally!!! JUSTICE RULES!!! EQUAL RIGHTS 4 ALL!!!

  • 38. anonygrl  |  December 6, 2010 at 6:37 am

    They will make a ruling when they are ready… which is to say that it might take a while for them to rule (several months to longer…)

    We can hope for a speedy ruling, because they have seeemed to favor expediency so far in their scheduling of this appeal hearing, but that doesn't guarantee anything.

  • 39. Lesbians Love Boies  |  December 6, 2010 at 6:46 am

    I am praying for a christmas eve or new years eve … This year … Ruling.

  • 40. Richard A. Jernigan  |  December 6, 2010 at 6:54 am

    If it comes down on 12/31/2010, I will be glad that I signed up for AFER's notifications, because BZ and I will be in Statesboro, GA, and I don't know what Internet service is like in that part of rural America.

  • 41. Daily Lurker  |  December 6, 2010 at 12:29 pm

    …that part of rural real America.

    There, fixed it for ya.

  • 42. Richard A. Jernigan  |  December 6, 2010 at 7:08 pm

    Actually, according to our granddaughter, it is very rural. She said they haven't even finished building the pipeline that will bring the sunshine in yet.

  • 43. Charlie Galvin  |  December 6, 2010 at 7:12 am

    Given the foreshortened timetable for briefing and argument, I'd expect that the opinion will also issue sooner than is customary. I can't imagine the court would drag its feet after it hustled to get the matter heard.

  • 44. Kathleen  |  December 6, 2010 at 9:38 am

    Boies said in the press conference that he doesn't expect it this year.

  • 45. Daily Lurker  |  December 6, 2010 at 1:10 pm

    IANAL, and all that, but I think Imperial County was DOA today, and if that were the only issue, the 3 judges could have a ruling "tomorrow."

    I think that the 9th circuit cleverly arranged things so that the 3 judges could hear/see amici and arguments on the merits without first determining standing. If the merits arguments were strong and even close to being balanced, the 3 might (in the privacy of their own minds, of course) have looked for somebody to have standing.

    But Cooper was as awful here as he was at trial, especially in failing (as someone else has noted) to cite any part of Walker's opinion that was sufficiently in error to justify overturning, or even remanding. Cooper also failed miserably (IMO) to show any harm (or even interest) to any of the "proponents" that would justify their having standing.

    So why would the 3 delay a ruling for any other reason than to make sure it is well-reasoned and forceful?

    That ruling would be: (a) Imperial County doesn't have standing. (b) neither do the "proponents." (c) therefore we don't have to judge the merits. (d) therefore, Judge Walker's ruling stands for California. 200 to 500 words.

    And I would hope that the 3 would deny a stay of their appeals decision while Cooper and friends go for an en banc and then a SCOTUS reversal. After all, there are already 18,000 (I think) California couples who were married during the interregnum, what difference would it make to increase that number to 36,000 or 54,000 or anything more???

    If the case is "resolved" by the 3 on the issue of standing, such that Judge Walker's ruling applies only to California, I'll bet my next lottery ticket that neither the "banc" nor the supremes will take a further appeal.

  • 46. DailyLurker  |  December 6, 2010 at 1:13 pm

    Kathleen and Ann S. — So glad you got front-row seats!

  • 47. Ann S.  |  December 6, 2010 at 1:42 pm

    @DL, we were thrilled to be there! Now we're both starting to drag a bit, having arisen at 0-dark-thirty.

  • 48. Richard A. Jernigan  |  December 6, 2010 at 7:17 pm

    Oh that's right–you poor souls didi have to get up before G-d yesterday, didn't you? Were you at least able to get to sleep before She turned her phone off for the night?

  • 49. Jonathan H  |  December 6, 2010 at 6:36 am

    Thank you Adam and everyone else at P8TT for keeping us informed.

    I don't know about the standing issue, but the discussion on the merits was so one-sided I don't see any way this decision can be overturned. Cooper's arguments seemed very feeble to me.

    Olson was a juggernaut, it was really amazing to watch him in action. Makes me wish that they'd televised the trial even more.

  • 50. Richard A. Jernigan  |  December 6, 2010 at 6:40 am

    Adam, all I can say is that I am listening to "Hava Nagila" (translates to mean "Come Let Us Rejoice") by Connie Francis and dancing the hora. I feel as though the 9th CCA will hand down a fair ruling, and that Prop H8 is dead and stinking!

  • 51. adambink  |  December 6, 2010 at 6:44 am

    Awesome. Yours truly is making a kugel tonight for tomorrow's Chanukah dinner. Heh.

  • 52. Richard A. Jernigan  |  December 6, 2010 at 6:52 am

    And I still have more challahs to make for Chanukkah deliveries. That is what our gift list is getting this year.

  • 53. Straight Ally #3008  |  December 6, 2010 at 9:02 am

    I love that image. 🙂

  • 54. Adam G  |  December 6, 2010 at 9:16 am

    I would love to see the 9th Circuit hand down a ruling in our favor on both the standing issue and the merits, although I think that the standing issue will preclude any ruling on the merits if they rule (as they should) that proponents don't have standing. But at least, let them rule that the proponents have no standing.

    I'm not sure which would satisfy me more, though, at the inevitable appeal from the proponents: SCOTUS refusing to grant cert, or SCOTUS granting cert only on the merits of the case and not on the standing issue. Either way, I think Boies and Olson will wipe the floor with Cooper et al. The proponents HAVE NO CASE, and now the whole world knows it.

  • 55. Shelly  |  December 6, 2010 at 6:44 am

    Ok i read that the court is done hearing information on the case and this waz it?? Why no loving family vids of hetro & homosexuals living in a good neighborhood, doing community service, having couples speak about their issues like 2 couples per side so the judges can see 4 themselves that we all hurt, cry, get sad, happy we r all the same except 4 the bad part of this discriminating law that we all should be able 2 marry what the kidz go through when other kids say ur not good enough ur bad thats why ur parents cant marry ur all sinners & ur not a real family!!!! then the judeges will see how they need 2 rule!!!

  • 56. Richard A. Jernigan  |  December 6, 2010 at 6:51 am

    Since this was an appeals hearing, no new evidence could be admitted. This ruling has to be made based on the trial transcripts from the trial in Judge Walker's courtroom in January. That evidence includes all evidence presented to Judge Walker, whether that evidence was printed evidence, verbal testimony, or electronic evidence such as videos. This is what they must consider, and this is all they are allowed to consider. But I truly think that this ruling will end up 3-0 in favor of marriage equality.

  • 57. Elizabeth Oakes  |  December 6, 2010 at 6:53 am

    Alevai, Richard.

  • 58. Richard A. Jernigan  |  December 6, 2010 at 8:24 am

    Thanks, Elizabeth. Hope all is going well at your house!

  • 59. Elizabeth Oakes  |  December 6, 2010 at 2:46 pm

    It is, except I'm still suffering from Latke Overload, the family Hannukah party was this weekend. Wanna email me some challah?? 🙂

  • 60. Richard A. Jernigan  |  December 6, 2010 at 7:24 pm

    Which topping–Poppy seeds or Cinnamon/sugar blend?

  • 61. Jonathan H  |  December 6, 2010 at 6:53 am

    Don't worry, they still see all that. As I understand it they go over all the evidence presented at the trial, including video of the witnesses. Probably already did that before this hearing.

  • 62. Carpool Cookie  |  December 6, 2010 at 6:58 am

    And now they have time to go over all the evidence again on their own, if they want, if they need to clarify anything for themselves.

  • 63. anonygrl  |  December 6, 2010 at 6:55 am

    Because during the appeal, new evidence is not presented, merely discussions on interpretation of law. All the evidence was presented during the original case, and that is what the judges (and lawyers, much to Mr. Cooper's disadvantage, since he didn't present any) have to work with.

    That is also why the appeal hearing is short. Each side gets to sum up their interpretation of the law, with the judges asking questions, and then the judges rule on the prior ruling (Judge Walker's 136 page ruling, that is), based on the originally presented evidence, and everybody's thoughts (including their own) about the law.

  • 64. anonygrl  |  December 6, 2010 at 6:59 am

    Additionally, trying to sway judges at this level with emotional arguments as opposed to legal ones is extremely risky. These judges are smart, and would not sit still very long for emotional manipulation. Not to mention that this is a large part of the argument that Olsen and Boies made originally, that the people were swayed to vote in an unconstitutional amendment because of the emotional manipulation of the Prop 8 proponents.

    I believe that the judges understand, from the trial evidence, what the harm to homosexuals is in this case.

  • 65. Adam G  |  December 6, 2010 at 9:18 am

    "trying to sway judges at this level with emotional arguments as opposed to legal ones is extremely risky. These judges are smart, and would not sit still very long for emotional manipulation."

    Somebody oughta tell Cooper that. He seems to have missed the memo.

  • 66. nightshayde  |  December 6, 2010 at 9:20 am

    This is completely picky on my part (and I'm really trying to not be snarky — I really am!) — but when you post here, could you possibly use "2" or "4" when referring to the actual numbers, and either to, too, for, or fore if that's what you mean?

    I know I'm getting old when text-speak makes my brain shut down. =(

  • 67. celdd  |  December 6, 2010 at 10:15 am

    I had the same reaction to that post.

  • 68. OldCoastie  |  December 6, 2010 at 6:56 am

    I completely fail to understand how the Prop 8 people keep arguing about children out of wedlock is somehow relevant to marriage equality…

    makes no sense to me.

  • 69. Carpool Cookie  |  December 6, 2010 at 7:03 am

    Well, they can't argue what they really feel (ie, as that "homosexuals make the U.S. fall into satan's hand, state by state"), so they have to "hang their hat" on SOMETHING, at least.

  • 70. Adam G  |  December 6, 2010 at 9:18 am

    I don't think it's even that rational. Their whole argument boils down to "GAYS ARE ICKY!"

  • 71. celdd  |  December 6, 2010 at 10:16 am

    And what was so great about Theresa Stewart's presentation is that she actually was the only one to actually say that out loud (in equivalent words).

  • 72. DailyLurker  |  December 6, 2010 at 1:32 pm

    For all the deserved accolades to Boies and Olson, when the history of this case is written, I hope that Terese Stewart gets her due, and is part of, not lost in, the adulation.

  • 73. Ann S.  |  December 6, 2010 at 1:42 pm

    Terese was really "on" today and never missed a beat. Another great performance.

  • 74. Sagesse  |  December 6, 2010 at 1:53 pm

    At first I was surprised when Cooper went on that people don't respect him and his arguments. Therese Stewart was very forthright about what their arguments boil down to. Everyone on the equality side was impressive, but she sure packed a punch into her few minutes. A very impressive lady.

  • 75. Elizabeth Oakes  |  December 6, 2010 at 2:48 pm

    I have wuved her since Marriage Cases, where she also put on a fabulous presentation. So glad she's on our team!!!

  • 76. Elizabeth Oakes  |  December 6, 2010 at 2:50 pm

    Sorry, NOT marriage cases, Strauss v. Horton. It's late.

  • 77. Carpool Cookie  |  December 6, 2010 at 6:57 am

    "and (b) as Brian put it, you can’t wall off a right because children shouldn’t be exposed to sexuality… it just doesn’t stand up to even the lowest level of rational basis…

    I was expecting one of the judges to ask, if one agreed with the argument that knowing about marriage made children ponder sex at to early an age (and that was a bad thing), why marriage of ANY type was allowed, at all.

  • 78. Kathleen  |  December 6, 2010 at 10:05 am

    That's was my question, too! Actually, I would think this is an argument to ban procreation. Won't that immediately make children think of sex??

  • 79. James Tuttle  |  December 6, 2010 at 7:01 am

    Does anyone have any input(no-matter how far-fetched) about the question of how broad or narrow the ruling should be? Do you think that if they find proponents have standing and they do rule in our favor will they keep it to CA only of the whole ninth circuit? If they do apply the ruling to the whole ninth circuit based on U.S. constitutional rights won;t that force SCOTUS to take the case? I hope that makes sense.

  • 80. Steve  |  December 6, 2010 at 7:07 am

    They tried pretty hard to get arguments from the lawyers that a narrow ruling will suffice to address the problem.

  • 81. James Tuttle  |  December 6, 2010 at 7:13 am

    Oh..I thought they were asking if they should rule broadly…but at that point my mind was a bit foggy.

  • 82. Steve  |  December 6, 2010 at 7:34 am

    Mhhh, I could be wrong. I can't recall the exact words either.

  • 83. DailyLurker  |  December 6, 2010 at 2:44 pm

    As I said above, I'm betting my next lottery ticket on this being (a) a ruling on "standing" only (none of the appellants will have it) (b) therefore a ruling that applies to California only, and (c) therefore a ruling that neither the "banc" nor the supremes will take on appeal.

    IMO (and IANAL) that's as narrow as this opinion can get, and that's where it will end up.

  • 84. Peterplumber  |  December 6, 2010 at 8:42 am

    That question made me shiver when they asked it. For how broadly SHOULD they rule? If Prop 8 is unconstitutional at the US constitution level, then all the other states which have laws against same sex marriage would suddenly have to drop those laws and allow same sex marriage. Not that I disagree with that, but I think we would have a much more difficult fight ahead of us if that happened. For now, winning in California should suffice. Because what happens in California eventually spreads nationwide anyway.

  • 85. Ann S.  |  December 6, 2010 at 10:10 am

    They could conceivably focus their opinion on the right that was taken away by the voters, and so limit their ruling to California. Depending on how they word it, though, even if not directly applicable to other states, it might encourage cases to be brought in other states in the 9th Circuit.

  • 86. DailyLurker  |  December 6, 2010 at 2:54 pm

    Whatever the appeals ruling, Judge Walker's trial ruling will remain a powerful resource in future lawsuits. At the very minimum, it will require (IMO) that folks like the "proponents" either come up with more powerful arguments than "I don't know your honor, I just don't know," or else to abandon the courts as a way to "their" victory.

    BTW, with Illinois, I've read, some 28% of the citizens of the USA now live in a jurisdiction that recognizes at least CUs or DPs equivalent to marriage.

    So, by the time we get to SCOTUS, there will be enough citizens entitled to "spousal" benefits that even the hard-brained justices will have a hard time ignoring them.

    It worked in Loving!

  • 87. Steve  |  December 6, 2010 at 10:28 am

    The thing is that SCOTUS doesn't really want to get too far ahead of the social curve. When they declared the bans on interracial marriage unconstitutional only 20 or so states still had them.

    If the Supremes think that the 9th Circuit overstepped its bounds and ruled too broadly, that would be very bad.

  • 88. Elizabeth Oakes  |  December 6, 2010 at 2:55 pm

    I shivered too Peter…but I was so glad that Olson said "yes" when they asked him if Constitutional protection was called for. Everyone's scared to take this large because (as you note) they think the smaller win is more attainable….but the truth is large and so is the need for justice, and I'm glad Olson had the brassers to say so.

    It almost made me feel like one of those old Frank Capra movies, where only one guy in the whole world is willing to speak the truth to the high authorities, Congress or a courtroom…let's hope we get a similarly celebratable Capra ending.

  • 89. grod  |  December 7, 2010 at 2:53 am

    How narrow you ask. During the hearing was there not conjecture about a favourable decision being made applicable in the counties where the plaintiffs live? Taken with the observation about the election results, was it not acknowledged that it might be desirable for the Registrar, the Attorney General and the Governor to give effect to the decision a state-wide application, state-wide norms being the the case.

    How does the stay of the district order get lifted? Can it be lifted by these judges? Should the proponents appeal to the ‘en blanc’ Court of Appeal and/or the US Supreme Court, who determines the status of the stay – while each higher level considers the case?

  • 90. Polydactyl  |  December 6, 2010 at 7:06 am

    I'm blocked from streaming anything at this location, but it's nice to hear the details from others. I gotta say, I hope this is the same showing the defendants hope to present to the SCotUS when the time comes. It sounds abyssmal.

    Poor Cooper, he just has nothing to work with and I think he knows it. Did he draw the short stick at his firm to represent this case, or what? Oh well, he's getting paid one way or the other I suppose.

  • 91. JonT  |  December 6, 2010 at 7:07 am

    Subscribing, Yo.

    Of course I was really impressed with Olsen, Boies and Stewart. All of them got their points across, and did so in a way that was easy to understand.

    Cooper drove me up the wall. It was so hard to follow his arguments with all of the stammering and "uh's". It was like he could only utter 3 words at a time, while trying to think up 3 more words, and using "Uhh" to fill that time, while his mind tried to cope.

    Sometimes I just wanted to scream at the monitor "Spit it out!". 🙂

    I wonder if he was like that during the actual prop8 trial in January and August. It was *really* annoying.

    The Tyler guy (Imperial County) – he at least could speak full sentences that were understandable. Although, he also seemed unprepared. It was like he had come with a speech to give, but this wasn't a speech-giving forum. He could not address the Judges concerns, nor really answer their questions in a way that supported his case.

    All in all, it was nice to see this live.

    And thanks Adam for your work on this. Since there was actually a live stream, I did not read the live-blogging until after the proceedings were over, but I appreciated it nonetheless. Thanks!

    There were about an additional 600 messages in my inbox afterward 🙂

    Here hoping a decision will come swiftly.

  • 92. OldCoastie  |  December 6, 2010 at 7:19 am

    "Cooper says that he respects the other side and regrets that they do not respect him/his arguments equally. "

    What in the world is he talking about?

    (projection much, Coop?)

  • 93. Ronnie  |  December 6, 2010 at 7:22 am

    NOM is complaining about Judge Reinhardt…as if they didn't see the other 2 judges complete pawnage over Cooper….NOM = FOOLS!!!!…. XP ….Ronnie

  • 94. Adam G  |  December 6, 2010 at 9:20 am

    They probably didn't. They don't get that their arguments can't even hold air, much less water. They are focused (as are all dedicated paranoids) on anything they can use to justify their hate.

  • 95. bonobo & mom  |  December 6, 2010 at 7:25 am

    I have a question. As you may remember I have a friend that died October 1st of this year. She was legally married to he partner and her partner is trying to get the benefits from the State (the Fed's are closed to her, as we know). If Prop 8 is found legally binding, and the marriage is found illegal, what happens to my friends widow? Will she still be able to get the state bene's?

  • 96. Lawrence  |  December 6, 2010 at 7:29 am

    The CA supreme court already found that the ~18000 same-sex marriages that happened before Prop 8 passed remain VALID (and this is one of Olson's arguments about the irrational state of CA laws). So your friend's partner should have a case – BUT CLEARLY SHOULD HAVE A REAL LAWYER who understands this helping her. DOMA, as you state, currently prevents access to federal benefits.

  • 97. bonobo & mom  |  December 6, 2010 at 8:47 am

    Thank you Lawrence. Needless to say it's been a real hassle to the widow. Actualy, the State has been the nicest to her. It's the utilities, insurance companies (including house insurance), etc. that have made life the most difficult. Mostly they insist that she put money down and open a new account for phone and utilities before they will continue services. The house insurance was hysterical. They insisted (after the pipes broke) that any reimbursement money will be made out to my friend, and not the widow. Well, that should save them some bucks, shouldn't it.
    Glad to hear this is one less thing she will have to worry about.

  • 98. Kathleen  |  December 6, 2010 at 10:11 am

    Is this in California? If they were legally married during that window of opportunity, they remained legally married after Prop 8 – and must be treated by these companies just as any other widow would be treated. How horrible that your friend should have to deal with this while mourning the loss of her wife! Have her contact Lambda Legal, or NCLR, or another legal rights organization asap.

  • 99. Lawrence  |  December 6, 2010 at 7:25 am

    Tremendous thanks to Adam and the bloggers (good name for a band)! Also saw most of it live on TV. Appeal cases seem to show a really strange tip of the iceberg, relative to the detail of the case and the briefs, with plenty of tealeaf reading now to be done about what is implied by the Justice's questions. Also lots of interruptions making it a fascinating challenge to make one's prepared points.

    I thought Olson stayed on message and got his points over the strongest, hammering away with impassioned statements about how nothing from the proponents made constitutional sense. Boies seemed to get knocked off track early on and for some reason didn't seem to quickly counter the strange discussion about whether every clerk in the state need to be enjoined to follow a change in law when all they need to do is follow the directions of the Gov/AG. Boies got back on track towards the end. Stewart, I thought, was very effective at rapidly making her point about the irrationality and animus of the state enforcing equality in all other laws but having the final marriage step blocked, but I am unsure whether the Justices saw this as a big deciding matter of law or not. Yes, Tyler was wonderfully aweful! I think Imperial County is now toast. I thought Cooper was competant and made some points, but as Boies has pointed out before, it's not that he is a bad lawyer but that his party has no case.

    Now we wait.

  • 100. adambink  |  December 6, 2010 at 7:32 am

    Adam and the Bloggers will now be the name of my ultimate frisbee team next summer, thanks to you.

  • 101. Anonygrl  |  December 6, 2010 at 7:40 am

    I'm using it as my Fantasy Football team name next year. 🙂

  • 102. adambink  |  December 6, 2010 at 7:45 am

    Which reminds me how irritating it is that I've scored the most points in my entire league this year, yet am depending on another team's Wes Welker to outplay another team's Tomlinson in tonight's game by 10 points or more in order to back my sorry butt into the playoffs, since pretty much every frickin' member of my team except MJD laid an egg yesterday.

    Deep breath, okay, back to Prop 8 stuff.

  • 103. Lawrence  |  December 6, 2010 at 9:44 am

    I will revise my opinion of Boies' section – I am re-listening to the video as this was the most obscure section for me and I think he is in fact nimbly stepping through a legal minefield that I don't claim to understand – where the Justices are aggressively probing the significance of the Gov/AG not defending prop 8 and what the legal significance of this is for the whole CA initiative process and therefore what his means for standing. I think this issue might be much more delicate than it first seems (so somebody with real legal understanding should comment on the Boies section).

  • 104. Mouse  |  December 6, 2010 at 7:27 am

    Mister Cooper, the Constitution is sovereign, not the voters. As you yourself have admitted, the voters do not have the power to enact initiatives that violate the protections guaranteed in the Constitution. That's what this is all about.

  • 105. Don in Texas  |  December 6, 2010 at 8:43 am

    Actually, the people are sovereign. It is they who "ordained and established" the Constitution and only the people can change it (either directly or through their elected representatives.)

    The Constitution is the sovereign act of the people to establish and ordain a government to act on their behalf and in their best interests. It does not exist to define, limit or deny the rights of the people who authored it.

  • 106. Peterplumber  |  December 6, 2010 at 12:26 pm

    I wanna start a new ballot initiavte, where it takes more than a simple majority to make a constitutional amendment. What should it be? 2/3? 3/5?
    52% just isn't enough.

  • 107. Ann S.  |  December 6, 2010 at 12:38 pm

    At least 2/3, plus perhaps there should be another safeguard, although I can't think what at the moment. And we need to make it harder to get propositions on the ballot — maybe no paid signature gatherers? Higher signature requirements?

  • 108. DailyLurker  |  December 6, 2010 at 2:00 pm

    First, congrats, as I said above, on BEING THERE!

    a) Attorney General must rule on every initiative whether it is constitutional in AGs opinion. A "no" opinion doesn't keep the initiative off the ballot, but does require a higher (60%?) vote to pass. Yup, lots of room for mischief, both ways, but better than now. AGs opinion not appealable.

    b) No initiative may be defended in court (pre- or post- passage) by any representative of the State. (Gov, AG, Legislator) Initiators must identify (IN THE INITIATIVE) who will defend, and that can be the only defender (consider the recent PGE initiative.)

    c) No person who cannot vote for the initiative can provide anything of value to support or oppose it. (corporate and out of state)

    d) Initiators must state IN THE INITIATIVE whether they paid signature gatherers or not. ("Paid" means anything of value, even a bus ride to the mall where the sigs were gathered.) Preferably, must state an approximate $$ amount per signature gathered.

    e) Initiators must post a bond before gathering any signature that will reimburse the State for checking signatures. Would be 125% or so of the required number of sigs. (Same as checking an election for a non-mandatory recount.). No Bond=No Initiative.

  • 109. Richard A. Jernigan  |  December 6, 2010 at 7:10 pm

    And how about a review for constitutionality of the proposed amendment before they are even allowed to gather those signatures? And possibly the safeguards that Iowa have which are going to make it so difficult for NOM to get their way about the amendment they want there?

  • 110. Lynne @ No Junk. Jus  |  December 6, 2010 at 7:27 am

    "My favorite part was when Olson said something to the effect of, 'They’re worried that it will expose kids to sexuality at an early age? By that logic, you’d have to ban comic books, movies, video games, television and conversations with other children.' ”

    They'd also have to bad the Bible — all that "knowing" and prostitution and rape and incest and stuff.

  • 111. Lawrence  |  December 6, 2010 at 7:31 am

    Too bad he didn't add "and the Bible", but he is obviously too smart to risk antagonizing a Justice on a throw-away line :).

  • 112. Gregory in Salt Lake  |  December 6, 2010 at 10:08 am

    He was REALLY close to saying the "B" word….when talking how marriage always between a man and a woman… I was hoping he would do it !

  • 113. Carpool Cookie  |  December 6, 2010 at 7:34 am

    Why didn't this Vargas clerk from Alameda appear, or have representation?

  • 114. Anonygrl  |  December 6, 2010 at 7:41 am

    Tyler was her representative, wasn't he? Why she didn't appear is a good question. But she was not required to, I suppose. And maybe she thought the better of it, like all of the proponent's witnesses did during trial.

  • 115. Carpool Cookie  |  December 6, 2010 at 7:51 am

    He said at one point he could not speak for her and did not know why she wasn't there….so that doesn't sound like he's representing her.

  • 116. Carpool Cookie  |  December 6, 2010 at 10:43 am

    Ooops…have a correction, to clear this up.

    When the Imperial County’s lawyer was saying that he “did not represent her and could not speak for her”, he was referring to Vargas’ BOSS , Dolores Provincio (?) The judge was trying to establish if Vargas had been given PERMISSION to represent the state on anyone’s behalf.

    So, maybe Ms. Vargas was there today?

  • 117. Judy  |  December 6, 2010 at 7:39 am

    Most disturbing to me was the judge on the right (in video stream), stating as if it's a fact that children are best raised by both their mother and their father. Didn't he believe the testimony of the trial? Is he ignoring that in preference to his own beliefs?

  • 118. Lawrence  |  December 6, 2010 at 7:46 am

    I don't believe he (Judge Smith) said that – I think he was constructing a finer legal point about "if this was the case what would this imply" which is the hypothetical style of this kind of unusual constitutional law questioning.

  • 119. caseyvt  |  December 6, 2010 at 11:31 am

    Judy – that judge assumed children do better with mom/dad because he cannot imagine any other reality – he's a Mormon from Idaho.

    He went to the Mormon church's Brigham Young University (their law school library has lots of stuff off-limits to research without special permission because it may be about s-e-x).

  • 120. Ann S.  |  December 6, 2010 at 1:54 pm

    I think this was just a hypothetical "rational basis". I did not take that to be his own opinion.

  • 121. Kathlene  |  December 7, 2010 at 5:36 am

    That kinda rubbed me the wrong way too.

  • 122. leorising  |  December 6, 2010 at 7:40 am

    I'm so glad that the founders were smart enough to know that the majority don't always make legal or morally correct decisions. Hooray for the independence of the judiciary, and damn anyone who tries to compromise them!

  • 123. Judy  |  December 6, 2010 at 7:41 am

    The "I don't have a case" remark is not as juicy as might appear. He was saying he didn't have a piece of litigation to quote, as in "I don't have a court case to cite precedence".

    He wasn't acknowledging what we all know, that they flat out don't have a case in general. Too bad – that would have been fitting.

  • 124. Anonygrl  |  December 6, 2010 at 7:43 am

    It IS bad enough, though, that he has no precedence case to support his theory.

  • 125. Lawrence  |  December 6, 2010 at 7:47 am

    Agree, but I still think we should just go with the quote "I don't have a case" as the best summarization of everything the proponents have said throughout!!

  • 126. Judy  |  December 6, 2010 at 8:02 am

    I know! It sums it up.

  • 127. Diane  |  December 6, 2010 at 7:42 am

    TKO for Boies and Olson… Onto the next match for more of the same…

  • 128. ElsieH  |  December 6, 2010 at 7:56 am

    Smith's body language was interesting. He seemed annoyed at Cooper from beginning to end. That look on his face as the judges left the bench was priceless.

  • 129. DailyLurker  |  December 6, 2010 at 2:08 pm

    Well, imagine if your upbringing in the LDS church led you to want to rule against S-S marriage. I mean, it's what you were taught to believe!

    But at the same time, you've got to find non-LDS reasons, preferably US Constitutional reasons, to rule the way your upbringing leads you. And those reasons must appear in the official record.

    If that were you, would YOU have been happy with Cooper (or Tyler) today?

  • 130. Ed Cortes  |  December 6, 2010 at 8:05 am

    My husband went over, and got to watch from an overflow room. I had to attend to work, and watched from home. We both paid LOTS of attention to the Judges questions and remarks. IMHO, the H8rs will lose on standing.

  • 131. Ed Cortes  |  December 6, 2010 at 8:07 am

    and….checking "da box"

  • 132. Simon  |  December 6, 2010 at 8:09 am

    [PHOTO ABOVE] You can always count of crazy Luke Otterstad from the Church of the Divide to show up with some kind of hater sign. If nothing else, he's consistent!

  • 133. takemusu  |  December 7, 2010 at 3:27 am

    Also commenting on the above photos:

    The couple holding the big sign quoting Matthew 19:4-5 were just to our right during the rally, and it drove me crazy. If they would just READ the Bible, they'd see that within that same piece of Matthew Jesus says some are born gay and are also beloved of god, and they should not be made to marry a woman. Matthew 19:10-12.

    And crazy Luke kept shouting that there are no gay marriages in the Bible, and I wanted to shout back "Jonathan and David!!!!" "Naomi and Ruth!!!!" Clearly he doesn't read the Bible, either.

  • 134. Manilow  |  December 6, 2010 at 8:16 am

    Ugh – When will we get a decision!?!?! I'm on pins/needles here.

    I don't want to sound like a petulant child – but I want to know NOW!!!

  • 135. Josh  |  December 6, 2010 at 8:18 am

    Here is the link to watch the hearing on CSPAN:

    Also the CSPAN schedule indicates it'll be shown again at 8PM EST:

    Watching it now. Sorry if already posted on here…

  • 136. Alan E  |  December 6, 2010 at 8:27 am

    I'm headed home after a wonderful day. After the hearing and our side of the press conference, I led Ann S., Dave P., Kathleen, Sheryl, and my husband Brandon to a small pho place for some fantastic chicken noodle soup. I accidentally led the group through the Tenderloin, but we made it. We then met up with Ann's brother before we parted ways.

    It was so exciting to be there today. Plus, I got a hug from Ted Olsen!

  • 137. takemusu  |  December 6, 2010 at 9:23 am

    My wife and I were at the rally and in the overflow room. Afterward we went out to lunch, and were thrilled to discover as we left that Judge Reinhardt and two clerks were coming into the same restaurant.

    Being in the overflow room, where everyone was respectfully quiet but felt free to cheer and laugh, was an amazing experience.

  • 138. Alan E.  |  December 6, 2010 at 9:57 am

    Which overflow room? The cafeteria on the 3rd floor? I was in a courtroom on the 2nd floor.

  • 139. takemusu  |  December 7, 2010 at 3:36 am

    We were in the courtroom with two big-screen TV's on the 3rd floor.

    They had us empty the courtroom in a hurry when it ended because they had a hearing scheduled in there immediately after the Prop 8.

    Occaisionally the feed would freeze or have a hiccup, but there was a guy working the computer that controlled the display and he always got it working immediately. I wish we'd had a chance to thank him.

  • 140. Alan E.  |  December 7, 2010 at 4:45 am

    We had the same buffering issues. Luckily, it picked up where it left off instead of skipping over sections.

    Dave P. would fill in Cooper's stammering with hummunahummana. Made it more entertaining than sad.

  • 141. Ann S.  |  December 7, 2010 at 5:33 am


    Love it! And thanks again for the great lunch suggestion.

  • 142. Gregory in Salt Lake  |  December 6, 2010 at 10:10 am

    tx for capturing the essence of being there : )

  • 143. Kate  |  December 6, 2010 at 8:29 am

    My guess at the impending NOM-spin to discredit these judges:

    1. Harris — a bearded hippie
    2. Smith – a jack-Mormon
    3. Reinhardt – he lisps

  • 144. Alan E  |  December 6, 2010 at 8:32 am

    I'm headed home after a wonderful day. After the hearing and our side of the press conference, I led Ann S., Dave P., Kathleen, Sheryl, and my husband Brandon to a small pho place for some fantastic chicken noodle soup. I accidentally led the group through the Tenderloin, but we made it. We then met up with Ann's brother before we parted ways.

    It was so exciting to be there today. Plus, I got a hug from Ted Olsen!

  • 145. Melissa  |  December 6, 2010 at 8:48 am

    Someone's probably said this already, but what kind of crack do you have to be smoking to say that Cooper did an excellent job? An unprepared first year law student could have spoken better than he did. thanks NOM for the laugh of the day.

  • 146. Straight Ally #3008  |  December 6, 2010 at 9:05 am

    It's the crack pipe of religious fundamentalism.

  • 147. Adam G  |  December 6, 2010 at 9:23 am

    It's pretty potent – the crack pipe of religious fundamentalist paranoid delusion.

  • 148. Ronnie  |  December 6, 2010 at 8:49 am

    "(d) Ted Olson hammered home repeatedly, and without interruption that the US Supreme Court has never said marriage is just between man and woman when ruling in the context of prisoners, contraception, divorce, other cases that marriage is (a) liberty (b) privacy (c) association (d) identity. He noted the Supreme Court said this 14 different times."

    I know Loving v. Virginia is one of them…& I think I know a few others but does anybody know for a fact what the entire list of 14 are?…..<3….Ronnie

  • 149. caseyvt  |  December 6, 2010 at 11:59 am

    Hmm, I can add some:
    Turner v. Safley (marriage is a fundamental right – even for prisoners),
    Skinner v. Oklahoma (no forced sterilization for criminals), Griswold v. Connecticutt (right to privacy in the marital relationship),
    Zablocky v. Redhall (deadbeat dads can marry),
    Meyer v. Nebraska (right to marry is in a list of rights guaranteed by the Due Process clause of the Bill of Rights).

  • 150. Ronnie  |  December 6, 2010 at 12:25 pm

    cool…those were the ones I figured were on the list…I didn't have the Griswold one…ty……<3…Ronnie

  • 151. James Tuttle  |  December 6, 2010 at 8:49 am

    Another exciting day is over. Now its back to the waiting game that I think we all hate so much. I wonder if we will receive advanced notice about a decision?

  • 152. AndrewPDX  |  December 6, 2010 at 8:58 am

    I think the real quote from Brian Brown above should have read:
    “This hearing makes a mockery of the federal judiciary,” said Brian Brown, president of NOM. “Citizens are entitled to a guarantee of impartiality from their judiciary… Except in Iowa, where the judiciary cannot be impartial for fear of making unpopular rulings."

    Liberty, Equality, Fraternity

  • 153. Straight Ally #3008  |  December 6, 2010 at 9:08 am

    A cynic would be left to wonder if the fix is in for marriage in the Ninth Circuit.”

    Cooper says that he respects the other side and regrets that they do not respect him/his arguments equally.


    I swear, it's like creationists complaining that they're not taken seriously by the scientific community. It's not bias, it's quality control.

  • 154. Jonathan H  |  December 6, 2010 at 9:10 am

    It’s not bias, it’s quality control.

    Awesome. I'm totally stealing that line!

  • 155. Straight Ally #3008  |  December 6, 2010 at 10:26 am

    That's fair, I stole it from a scientist whose name escapes me at the moment – it's a great description. 🙂

  • 156. Carpool Cookie  |  December 6, 2010 at 10:48 am

    Cooper says that he respects the other side and regrets that they do not respect him/his arguments equally.


    He thinks lawyers on opposite sides in a trial are supposed to grant legitimacy to the other side's claims?? That would be malpractice, I'd think.

  • 157. nightshayde  |  December 6, 2010 at 10:53 am

    I respect Boies/Olsen's arguments because they're accurate.

    I don't respect Cooper's arguments because they're akin to something I scoop from a litter box.

  • 158. DailyLurker  |  December 6, 2010 at 2:15 pm

    He's saying: "My arguments suck — they should make theirs suck, too"

  • 159. Ronnie  |  December 6, 2010 at 9:09 am

    Kaye Kendell, Executive director for NCLR on the arguments given today in Perry v. Schwarzenegger….<3…Ronnie:

  • 160. Steven  |  December 6, 2010 at 9:19 am

    I predict Feb/March decision..

  • 161. takemusu  |  December 6, 2010 at 9:29 am

    That's what we heard several people say at the courthouse today: February or March.

  • 162. Elizabeth Oakes  |  December 6, 2010 at 3:16 pm

    Valentine's Day??? Sweet.

  • 163. Richard A. Jernigan  |  December 6, 2010 at 6:25 pm

    Maybe on my birthday? Yes, my birthday is in March. March 8th to be exact. Having Judge Walker's ruling upheld, and possibly even broadened to include all of the 9th Circuit, would just totally be such a fantabulous birthday present!

  • 164. Arthur Henke  |  December 6, 2010 at 9:30 am

    Video recap of defendants arguments:

  • 165. Straight Ally #3008  |  December 6, 2010 at 9:38 am

    I so wanted to believe he was joking. Nope, appears to be for real. And while their numbers are decreasing (at least relative to LGBT rights), there are lots like him.

  • 166. Ķĭŗîļĺę&  |  December 6, 2010 at 9:41 am

    Should gays be given equal rights
    Attorney David Boies and Chad Griffin of the American Foundation for Equal Rights talk about the fight against Proposition 8 and whether the country is ready for gay marriage.

    — ♂K♥F

  • 167. Dave  |  December 6, 2010 at 10:03 am

    I am trying to find a link to the video. I was not able to watch today, and would like to watch it. I am sure this has been addressed before, but where would I find a link to watch the video?

  • 168. Kathleen  |  December 6, 2010 at 10:19 am

    Here you go!

  • 169. Dave  |  December 6, 2010 at 1:40 pm

    Thanks Kathleen. Had foundit immediately after posting, and just spent the last few hours watching it.

  • 170. anonygrl  |  December 6, 2010 at 1:13 pm

    You ROCK Adam!

  • 171. adambink  |  December 6, 2010 at 6:29 am

    Hey, thanks! I think you do too.

  • 172. Chris in Lathrop  |  December 6, 2010 at 9:08 am

    Ditto! Thanks so much, Adam, for all your hard work keeping us all informed! Thanks to everybody who's busting their butt for truth and liberty!

  • 173. Sagesse  |  December 6, 2010 at 1:16 pm

    Following intermittently for now, to watch and assimilate later. Thanks to all who are actively observing and commenting.

  • 174. Chris From CO  |  December 6, 2010 at 1:26 pm

    Coopers argument was consistant to NOM’s arguments, I felt our side was sound and well prepared. I wish that Tyler guy spoke for cooper, he sucked and would have been more fun to watch. After their side spoke for their standing it made me wonder if they will get to the second part of the hearing. Personally I want them to allow standing so they can rule on the other. It felt good. Now we wait, but I think we will win.

  • 175. jbf  |  December 6, 2010 at 1:26 pm

    I viewed the proceedings online. I was very impressed by the depth of questions all three judges asked of the lawyers. I also think it was great to see and hear the proceedings while at thes same time being able to read and validate that this blog is very factual.

    Good job all

  • 176. Alan K Chan  |  December 6, 2010 at 2:08 pm

    The judges were such a pleasure to watch. They went straight for the issues and weren't afraid to play the devil's advocate with both sides. This was like brain sex.

    The National Organization for Marriage had little to say about the case today. Their person covering the case, Dr. J, completely ignored the first half of the hearing when discussing "the good news." Here's why:

    After reading the Daily Kos' analysis, here's my understanding of the case as it stands now.

    Earlier Federal District Court Case
    JUDGE: I’m asking you to tell me, how it would harm opposite-sex marriages.
    COOPER: I don't know. I don't know.
    Resulted in Walker's unconstitutional ruling.

    Today's 9th Circuit Court Appeal
    JUDGE: What is your best case example of a federal case that grants proponents [of a ballot measure] Article III standing?
    COOPER: I don't have one, but this is the one I'm bringing forward.
    This could result in Reinhardt's dismissal of the case based on a technicality on standing.

    When your own lawyer, in court, says that you don't have a case, what can you say?

  • 177. Michael  |  December 6, 2010 at 2:57 pm

    Radical anti-gay pressure group NOM continues its efforts to destroy the US judicial system. If they are not attacking and inciting hatred toward individual judges, they are spending thousands of $$ to remove Supreme Court justices from the bench. How much longer will shrill anti-gay activists Brown and Gallagher ignore Christ's commandments to spend that same money on helping the poor and needy? I rebuke them in the name of Christ!

  • 178. Rhie  |  December 6, 2010 at 3:35 pm

    Will catch up later

  • 179. Elizabeth Oakes  |  December 6, 2010 at 4:12 pm

    Is there a transcript available yet, or does anyone know when it will be?

  • 180. Sagesse  |  December 6, 2010 at 10:15 pm

    Prop 8 Panel Deeply Skeptical of Standing

  • 181. MJFargo  |  December 7, 2010 at 3:08 am

    Best take on what happened (and will likely happen) that I've read yet. Thanks.

  • 182. Sagesse  |  December 6, 2010 at 10:27 pm

    Pizer's Take on Prop 8 Arguments

  • 183. John B.  |  December 7, 2010 at 1:21 am

    Cooper's exact quote (from an article in The Advocate,

    “I want to pay our respects to our opponents in this case, who have presented their case with skill and sincerity,” said Cooper, a Ronald Reagan appointee for assistant attorney general for the office of legal counsel, in a post-argument press conference in San Francisco. But then he added, “I regret in all candor that our opponents do not return that respect, to the arguments and the positions that those of us defending the constitutionality of Proposition 8 have advanced, but rather have seen fit to demean and ridicule those arguments.”

    Um, hello???? Has he been paying any attention to what people on his side, the supporters of Prop. 8, have been saying?

  • 184. Sagesse  |  December 7, 2010 at 2:25 am

    White House Says DADT Is Not Dead

    Glad I don't bite fingernails. With age comes patience

  • 185. Sagesse  |  December 7, 2010 at 2:39 am

    Can't watch from work, but seems to be worth a look.

    A DADT Roundtable Worth Watching

  • 186. Bob  |  December 7, 2010 at 3:27 am

    ho ho DADT has got to go , loved the round table, especially the notion that during a time of war is a great time to make the change cause the militiary right now has a singular focaus, which is the enemy, implementing this change now, would not distract them from that,

    I wonder if their was a trade off, tax cuts for the rich, in exchange for republicans votes on repeal, that would be a hard pill to swallow, and also very tricky if Obama took that bait,

    But all the info is showing that not repealing DADT is more harmful right now…… so get on with it. already…..

  • 187. The return of Perry v. Sc&hellip  |  December 7, 2010 at 6:42 am

    […] the full Circuit Court. All in all, however it seemed like another promising day for our side. The recap at the Trial Tracker has good discussion, as well as links to other sites that are providing […]

  • 188. What I Am Reading On This&hellip  |  December 7, 2010 at 1:22 pm

    […] daily wrap and commentary on Proposition 8. Ted Olson is […]

  • 189. Top Posts — WordPre&hellip  |  December 7, 2010 at 4:08 pm

    […] 9th Circuit Perry v. Schwarzenegger hearing: analysis and discussion By Adam Bink […]

  • 190. Prop 8 Trial Tracker &raq&hellip  |  December 23, 2011 at 11:48 pm

    […] the lower court’s injunction against Prop 8 pending appeal, and a 3-judge panel heard oral arguments in the appeal in December of 2010, in which both sides argued their case on the merits.  One […]

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