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Live thread: Today’s June 13th Prop 8 trial hearing

Liveblogging Prop 8 trial

Updates will scroll from the top

By Adam Bink

12:12: And that’s the ballgame, folks. What did you think of today’s arguments?

As summarized earlier, Judge Ware plans to deny the motion to return the tapes, and will issue a written ruling regarding the motion to vacate the Judge Walker’s ruling soon, ideally within 24 hours.

Stay tuned for discussion from Roland Palencia, incoming head of Equality California, and other posts on today’s events. We’ll also keep you updated on a ruling from Judge Ware.

This thread will no longer update.

12:04: An update with a transcript from Rick. Judge Ware says he expects to give a written decision soon, possibly in 24 hours.

Therese Stewart:  Argues that can’t put judges out unless have very high standards.  Cites case that deals with contraception or abortion. Judge should disclose that he’s Catholice because his beliefs are fervently held. Another point:  If judge does not disclaim interest in a case, proponents say that judgment may be bad.  In other words, in a contraception case, does a judge have dislose that he and his wife use family planning or that his children use contraception?

If there is a subjective reason a judge cannot be fair, he’ll disclose.  There is no law that supports that a judge must disclaim. It would turn the entire system on its head.

We’re not here to discuss whether judge is gay.  We knew that.  Not here to discuss whether he had a relationship. That was known. Nothing in the April 2011 article that describes their financial relationship. We don’t even know if they are married.  The entire case relies on duration of relationship. Proponents say its not germane that he’s gay or in a relationship, but that he might want to marry.  But they say in the same way that you cannot speculate.

Court cannot speculate about Walker’s intentions. Must conclude that Judge would have disclosed or recused if he had an interest in the case.  Rule tries to have diverse bench so that no one is recused because he/she is part of a minority group.

W: Thanks for foreshortening your arguments.

C:  Mr. B argued issues that we have disavowed.  We do not think it matters whether Walker is gay.  Judges can be expected to put their values and beliefs aside. This is about whether Walker should have disclosed earlier his potential interest in the case.

W:  Difference in failure to disclose vs vacate stay. I don’t read 455 that a judge shall be disqualified.  Once you have a hearing, which you have now, what is the issue?

C:  Failure in his case is that he did not disclose something that is relevant to the issue. That’s an independent reason to disqualify.

W:  Failure to disclose is different than what he failed to disclose and whether that constitutes a violation.

C:  He did not disclose and what he did not disclose throw into question in his impartiality. Third is his interest in marriage.  If he had disclosed his relationship, he would have had to disclose his state of mind.  Mr. Boutrous argued that the only reasons to disqualify would be if his own case were in question.

We would not be here if we had not learned that he’s in a long term relationship.

W:  I really appreciate the quality of the briefing and argument that has been presented with respect to this issue. I understand this is an important issue to the parties based on the amount of litigation that has gone before. It is important to the courts as well. It is my intent to give you a written decision quickly. I’d like to say in 24 hours. The problem has occupied me since the motion was first made. I have been thinking about it and can give you a quick ruling so that we can move beyond.

11:57: I just changed the settings on posting from mobile devices, and for iPhones at least, you should be able to post from an iPhone and have it show up on desktops/laptops, correcting a problem we had earlier. If you’re having trouble from other devices, it may not be something we’re able to resolve on our end, but let us know anyway.

11:52: By the way, for those in the courthouse who want to have a Prop8TrialTracker community lunch with Rick and the team after this concludes, drop me a line at adam AT couragecampaign DOT org for details.

11:51: A dispatch and analysis from Arisha:

Boutrous has now moved on to the merits. He’s arguing directly to Ware’s earlier point and has said that ProtectMarriage is unreasonable – that a reasonable person would not conclude that a judge was bias simply because of his gender.

Ware takes lots of notes and is now sitting back with a furrowed brow, his index finger over his mouth.  Ware now saying that he doesn’t intend to go back and watch the tapes to decide whether the trial was “fair.”

Boutrous unwilling to move from his position that even if Walker wanted to get married that he did not have to disqualify himself. Cooper was willing to bite on this argument – mainly because he has to – otherwise Cooper would strictly be arguing that a gay judge can’t judge.

It seems that both Boutrous and Cooper used most of their 45 min time allotments to argue.

11:48: Another dispatch from Rick, the discussion between Judge Ware and Boutrous:

W:  Disclosure is not as important to me with race because it’s obvious.  I draw my thinking from whether a judge is Episcopal. You can’t look at someone and tell that they are Episcopal.  Is there a disclosure requirement for non-obvious attributes?

B: No, your honor. We never argued nor would we argue for a judge to disclose religion.

W:  I’m not going to make you speculate on what you’d have done if judge were Mormon.

B: I won’t go down that path either, but we would not have objected.  We presume that judge is able to live up to his duty of impartiality.

W: Where would we set aside a ruling?

B: If one side had a huge advantage over another, it might be set aside.  Campaign contributions to a judge so sizeable, things that are objective, would be different.

(This is really boring, which is good. The other side just has nothing.  The judge is trying to find a way to learn how to rule.)

W: My assumption is that this motion by interveners is motion to whether Walker should have recused himself prior to case.  I have not looked to what happened during the trial even though they’ve pointed things out to me. I have focused just on whether he should have disclosed prior to trial. Should I review the video of the trial?

B:  There is ample precedent to say that the appellate court should be the place to review what happened in the trial.  …

W: I do not intend to view the trial.  But are you saying that for “reasonable person” perspective I should watch trial?

B:   You could, but you’d see he’s reasonable.

W: I think I just should focus on disclosure at the outset because had he disclosed or not would not affect him throughout the trial. But does a reasonable person have to know the law?

B:  Yes.  It’s your question from earlier that we could be subject to majoritarian rule outside of the constitution.

W: I am inviting you to find a case that a reasonable person would disclosebased on knowing the law?B:  In tort law, we look at reasonable purpose for which someone operated.  We look at framework to see if impartiatliy is questioned. The answer here is no. The bottom line is proponents challenge him because he is gay and in gay relationship. They’ve admitted that they’ve known about the judge’s orientation, they have filed pleadings that were offensive, claiming the judge is biased.

W: It does seem to me that it’s okay to be biased in trial because both sides are trying to convince the judge.  It’s the question of coming in, i.e., are you biased at the outset by some fact.

11:35: Things should be getting back to normal server-wise.

Colloquy with Judge Ware and Boutrous, very amicable, trying to come to a path to conclusion, from Rick:

B:  The two rules do come together sometimes – pecuniary and interest. Cooper has not come up with one case in which any court anywhere has ever come up with a standard advocated by him.  This would do great damage to system, namely that judges cannot be expected to follow their oath. Proponents keep saying that Walker sitting in judgment on his own case.

W: If court found that under different facts, because I agree with you thatthere are no such facts, if Walker had made clear that he had wanted to marry his partner, you argue that his impartiality would not be called into question.  Is there any situation in which his objectivity could be questioned?

B: Yes there is. One judge was a plaintiff in a class action so that case directly helped the judge.  If there’s a financial interest in a commercial dispute and deciding case…

W:  Judge Clemons situation. Judge was sitting on case that would have integrated traditionally white. Case was brought by traditionally black institution.  He had sat on the board of the college. One judge said that would have disqualified him.B:  He was exposed to facts because of previous background.  Judge’s come from bench. They are part of society. I think it’s a very, very, very strict standard before we start taking judges out for being involved in institutions.

W: I’m still struck by your argument that even if Walker intended to marry, he still would be permitted to sit on case.

B:  What a person at a given moment thinks. Let’s take it out of Walker.  Starts with judge thinking, “I don’t want to get married.  Then four days later, does. Then at end not sure.”  Requires us to go to thought process.

W:  But A requires broad standard, where it MIGHT be questioned whether right or otherwise. Your argument bears close scrutiny.

B:  You don’t have to go there. They have no evidence. They could not make argument earlier.  They filed a motion to knock Reinhardt out of case based on nes reports about  R’s spouse, so they are not opposed to using news reports as basis for disqualification. If we start slicing it too think and start trying to figure out what judge thinks or feels, suggests bias if a judge sits on a case that might effect his/her “class.”

11:30: After traffic overload and reset, we’re back! Sorry about the problems. Several new updates below:

11:22: Update on transcript from Rick:

B: There’s no factual record here of defendants being aggrieved because they did not raise it before Walker so no facts. Seeking relief after judgment entered, must be grave injustice to come in after, they don’t meet standard. They cannot rely on speculation and the like.

W: What’s difference between de novo or facts? Motion is based on factual showing.  They rely on 2011 interview for new information. Is this de novo reviewed—I’m not sure I know what I’d be reviewing—or plain error, that he left something out?

B: They have no single case that shows that recusal is warranted.  Plain error rules out their case.

W: It seems to me problematic. I’m not frequently put in a position as a district judge to review the actions of my colleagues.  If it goes to another judge and it’s de novo, you are just looking at the problem.

B:  Judges are presumed to follow their oaths and act impartially.  We can presume if he followed law, no basis for recusal.

W:  But cannot presume more than that.

B:  We’re not afraid of the facts or legal principles they have put forward.  You asked Cooper if biased person can be reasonable person.  The answer is yes.  In cases of race, ethnicity, religion—minority group—can act without bias even though they’d benefit from outcome. Walker might get benefit because equal protection might so dictate, but courts have ruled over and over again that recusal not warranted.

11:16: Update from Arisha:

Ware now questioning Boutrous on whether ProtectMarriage lawyers had an obligation to object to Walker’s sexuality earlier, noting that he hasn’t seen much law that suggests the lawyers have a duty.

Ware says upfront that he is not inclined to reject the motion because of timeliness.

Uh oh.  That means Boutrous needs to have an extremely strong argument on the merits because Ware isn’t buying into it.

11:10: Colloquy between Judge Ware and Boutrous:

W: If judgment were to be vacated and record is clear, you’d have a new judge who’d come to same conclusion. You’d have same outcome, but with delay.

B:  Enormous damage, first to judicial system that would say gay judges cannot stand on same footing as other individuals in minority groups. Can’t be based on innuendo and speculation.

W: Key to argument is that I have to find this way b/c walker is gay. Would you make the same argument if I conclude that defendants are genuine in pointing to relationship, not his sexuality.

B:  I think even if court rejects my argument, will still be perceived as bias against gay people. We had a three week trial. Over top. Does not meet any standard. They knew Walker had a relationship based on reports in June of last year. They had an obligation to look judge in eye at time.

W: Where is their obligation?

B:  Cites precedent.  Court said under 60B there is very strong diligence requirement. Gallo case says you cannot lay in the weeds until you are disgruntled litigant to strike. They knew about facts and they disavowed they’d bring it up.  If that does not sink them for all precedent and rules, nothing will.

W: I am not inclined to use timeliness.  I will consider it, but I am not inclined to rely on that.  Seems prudent not to say “simply too late.”  Then on appeal from that decision would come to decision on timeliness.  Standard of review important here. Vacated and record is clear, you’d have a new judge who’d come to same conclusion. You’d have same outcome, but with delay.

11:02: Things have recommenced. Boutrous for AFER is up:

Boutrous: This motion is frivolous and offensive but it’s not surprising since everytime in history we have faced civil rights issues, wehave faced such challenges.  Also want to point out that this motion is not timely.  And the rule requires extremely high standards to overturn a ruling.

First C’s argument makes absolutely clear that their motion targets Walker’s sexual orientation. The fact that W is gay should not be any surprise that he has a relationship.  One of defining features of being gay is having a relationship with a same sex person. They are challenging Walker because he is gay, now saying “not because he’s gay, but he had a relationship…” same argument in gender and race.  They find something else to add into mix to deflect that litigants.

When Mukasey as judge was attacked because he was Jewish, he said “same rancid wine in different bottle.”

W: Not necessary that they be in relationship to be GLB.  To presume that one is in a relationship is other side of Cooper’s same issue.

B:  Yes.  Just because people are gay in a relationship does not mean they are all the same. C is just stereotyping. Relationships are evolving, fleeting. Where would disclosure stop? There is no evidence that W intended to get married. In the second circuit in a case brought against Judge Chin resulted in sanction order, “when you come into court to challenge because someone is minority group should have huge evidence…”

W:  Defendants saying that circumstantial evidence that he might marry.

B: These standards are not to put judges on trial. I find it outrageous that they’d come in at this late date.  It was reported in the SF Chron.  Pugno said he would not make it an issue. Feb 2010 right after trial ended was reported. Five days after closing arguments, LATimes reported that Walker was gay and was seen at events with companion.  James Campbell of their side said, “as a legal team we are not going to focus on” Walker’s sexuality.  Then when they got to 9th and saw that standing is an issue, they threw a hail marry pass and took the low road.

10:55: Update from Arisha:

Have I mentioned that I’ve always liked Judge Ware. I first met him a few years back as a 3L in law school while I served as the Editor-in-Chief of the IP law review at Santa Clara Law.  For those that don’t know Chief Justice Ware has been “known” as a judge for his interest in Intellectual Property law (copyrights, trademarks, patents).  I believe he taught a class a Santa Clara, often hired interns from Santa Clara’s student body (which I always thought was amazing of him because he could have easily recruited from Stanford or Berkeley Law).  Anyhow, he’s one of Santa Clara’s favorite judges. Each year he auctioned off a karaoke party for students to bid on for charity. Because of my position as EIC, I was invited to one of the karaoke parties – I wish I could remember what song Judge Ware sang, but I digress. I say all this because I think “who he is” really matters.

Just after Prop 8 passed in California, a false meta-narrative arose blaming increased black voter turnout on the passage of the hate-initiative. I won’t rehash the details, but needless to say, both sides were quick to claim this initially as truth.  The net result was that California lgbt orgs spent the last three years convincing activists that they needed to spend time knocking on doors in the communities of color that they avoided the first time around while anti-equality orgs like and NOM got to go around claiming that black voters had flatly rejected this new civil rights movement (mostly unchallenged).

I began organizing for the repeal of Prop 8 in part because of this dialogue – to show that there are “straight blacks” that exist that contravene the narrative. The false narrative hasn’t gone away – I’ve heard it discussed in every subsequent town hall or community event that I’ve been to over the last two years.

But if Judge Ware rules the “right” way the narrative, in my view, becomes much more difficult to justify.  In the three years since the passage of Prop 8, we will have witnessed a black president (Obama) who not only signed the repeal of “Don’t Ask, Don’t Tell” but also instructed a black U.S. Attorney General (Eric Holder) not to defend DOMA in court, a black state Attorney General (Kamala Harris) refusing to defend Prop 8.  Add on the fact that the “important” black Reverends (Jesse Jackson and Al Sharpton) and NAACP President Julian Bond have been supportive of lgbt rights for years – if Judge Ware rules the “right way,” what other black gateholders are there in opposition (and don’t tell me Hermann Cain or Kobe)?

What is the tipping point? How many more black leaders must come out in support for lgbt equality for the movement to have the confidence/backbone to claim it?

10:54: Update from Rick:

Here at the break, it seems hard to imagine how the Judge will rule that Walker had a duty to disclose that he was in a relationship.  Charles Cooper has consistently failed his clients. He put on only one “credible” (defined by Walker) witness.  He had no closing argument except to say that marriage between people of the same gender would change the definition of marriage if marriage is defined as between opposite sex people. That was his argument.
He lost.

Now he is trying mightily to put Judge Walker on trial to demonstrate that he did not fail his clients, but that he had an impossiblecase since Walker is gay. When Ware asked if Walker had a duty to disclose that he was gay, Cooper said no.  When Ware asked if Walker had a duty to disclose that he’s in relationship, Cooper said yes because that means he wants to get married. When the judge asked if all people in long term relatioships want to marry, Cooper said no, there are platonic, non-intimate relationships that are not precedent to marriage. When Ware asked if Walker had to disclose that he did not want to marry, Cooper said he did.

So follow this:  According to Cooper anyone in a long term relationship wants to get married.

10:48: Things are now in recess until 10:55.

10:39: More transcript from Rick:

W: Would only have to disclose his relationship if he wanted to marry. The long term relationship is your marker for wanting to marry.

C: We believe that would be a fact and did have obligation to disclose.

W: If he did not have a desire to marry, does not have to disclose?

C: If he did not conclude?

W:  He would not have to conclude it; he’d know it.

C:  If he had not interest in marrying his partner…

W: He’d have to dislose his lack of interest? I don’t want closeness of my questions to be seen as cavalier. I appreciate struggle you have in answering. Probably same kind of questions with race in past. Is first time judge’s sexual orientation in point.

C:  Judge Clemons in Alabama re: integration, recognized that his children’s interest. He disclosed no interest in his children’s interest in attending that school.

W: I know Judge Clemons. I don’t think that his children were even in high school. I take judicial notice that children may not know until the day they go to college whether they want to go to college or where.

10:38: From Arisha:

I love hypotheticals – Ware is using hypotheticals brilliantly, at first to touch on race and now …

He poses this hypothetical: if a female judge has a history of being raped, does she have to disclose that fact when presiding over a rape case?

A few people gasped. It’s a brilliant hypothetical because it makes a clear distinction between physically obvious biases (being a person of color or being a woman) and the more intimate non-obvious details of our lives.

I really like Judge Ware.

10:35: The colloquy is getting rather heated. Quick transcript courtesy of Rick:

W: You keep saying that Walker has an interest in getting married. Is that what you are saying?

C:  If he has an interest in marriage, …

W: You repeated it again.  I hear me. I recognize my voice. I’m not sure you hear yours.

C:  Let’s back up.  Ten year relationship means he was bound to disclose. Also must disclose that he is similarly situated to plaintiffs.

W:  You’ve raised the disclosure question many times.  You seem to say that judge is required to disclose. In a case where race is involved, sometimes disclosure not made because obvious.  We are bound by our past which is largely irrelevant. If a female judge has suffered rape or sexual assault and is hearing a case on rape/assault, must she disclose?C:  That’s a tough question.  I don’t see how her direct interest would be affected.

W: That’s not the question. Would a reasonable person object?

C:  It is closer call whether or not reasonable person in possession of all facts whether judge’s impartiality disclosed.

W: You would have me rule that judges disclose intimate details of their past such as being abused as child and should not be presumed capable of fulfilling their duty.

C:  Judge would have to disclose if parties think relevant. Broad standard. Includes information judge might believe self would not rise to meritorious recusal.  The cases are quite clear. The judge’s responsibility quite broad.

W:  In this case, Walker need not to have disclosed orientation.

C: That is true. We have made that clear from beginning when first news reports surfaced.

10:29: Transcript of the colloquy between Cooper and Ware from Rick:

W: You keep rearguing.  Is there a fact that shows that Judge Walker had same interest as plaintiffs?

C: We have knowledge of one set of facts that common sense says that long term relationship … key point is that was never disclosed by Walker.  (Cooper is trying to put Walker on trial.  It’s gross, really.) Very fact that l/t relationship not disclosed is a fact of great relevance that one could have cause to be concerned about impartiatlity.

W: You’ve gone to a different question. I’ll leave unanswered question that he wanted to change his relationship?

C:  He did not disclose.

W: How does that affect the question about whether he wanted to change relationship? Let’s elevate this to a new level. Do you accept that rule requires that person must know all facts…

C: No.

W:  A reasonable person can speculate about impartiality of judge, not based on fact?

C:  If there is a fact that any judge may have such as interest in marrying long term partner.

W:  Now you are saying that Walker wanted to get married. I have not seen that in the record.

C:  We know of ten year relationship that could have impacted proceeding. Second is does he have interest in marrying long term partner.  There is answer to question. If yes, he must have waivered recusal.

W:  I was about to ask series of questions on reasonableness. I thought you’d answer that, but you went someplace else. I am always hestitant to adopt reasonableness test because we deal with people. Does standard we use allow bias or prejudice or does court have to exclude bias or prejudice?

C:  When reasonable person with possession of all facts is not biased…

W:  Where do you get that?  You believe that you cannot be baised or prejudiced and be reasonable?  Is there such a thing as a reasonable bigot or bias or prejudice can…

C: Reasaonble person can be biased…

W: IF reasonable person can be biased, must it also be consistent with constitution?  IF people on the street think it’s reasonable to take rights from people is that okay?

C:  Reasonable person would have to see that judge is not biased.

W:  That’s why I have trouble with this.  Lots of people have reasonableness, but they are different tests.  But we have to follow constitution. If a reasonable person thought that black judge should recuse from civil rights case, is that sufficient?

C: A reasonable person would not think a black or white judge would be unreasonable.

W:  Why not?

C:  Because they are not then reasonable.

W:  Some societies where people are not reasonable, such as caste, etc.  Our country does not allow us to discriminate for race, gender or sexual orientation?

C:  Agree.

W: For purposes of being in same sex relationship, does that mean he cannot be objective?

C:  Depends upon question.

W: What question?  MY question or someone else’s?

C:  Gay judge  in DADT might be biased.

W:  Not sure how DADT got in here. Can’t assume that judge who takes oath is incapable of doing so. So what is it that you find that Walker is incapable of following his oath?

C: Not bias..

W:  What is it that reasonable person would find here that would make Walker seem biased?

C:  A reasonable person would have basis to question whether Walker should sit on case becxause it would impact his own relationship. (Just keeps repeating same stuff. He simply wants to show that Walker was gay and therefore not capable of ruling.)

10:25: Another update from Arisha:

We’re now talking about reasonable person test. The “reasonable person test” is a legal standard that we use to judge whether someone’s action is something an average person would do.

Ware asks Cooper is there a such thing as a reasonable bigot?

Ware on a roll: do the requirements of the Constitution bind the reasonable person test?

Ware: If a reasonable person thought that a black judge had to recuse himself from a civil rights case?

Cooper: No.

Ware: Why?

No strong answer from Cooper.  Cooper now saying that a gay judge could rule on “Don’t Ask, Don’t Tell”.

10:18: A dispatch from Arisha:

The aforementioned white-haired man is now rubbing the temples of his forehead as Ware continues to challenge Cooper. Ware arguing that has no facts to suggest that Judge Walker actually wants to marry his partner.

Cooper attempting to argue that because Walker has been in a ten-year relationship with a same-sex partner implies that Walker wants to get married. Cooper is no longer even attempting to answer Ware’s question about Walker’s “intent to marry.” He doesn’t have this fact and is struggling to admit it. Cooper spinning: now saying that Walker’s failure to disclose proves that he wants to get married.

45 minutes is a long time before a Judge.  I bet Cooper is hoping Ware will cut this short.

10:10: Colloquy between Cooper and Judge Ware on the motion to vacate, typed by Rick:

W:  Now you are back to A which deals with recusal for any pecuniary interest.

C:  Yes. Any amount.

W:  But you use with judge. You don’t measure by outside reasonable person.

C: Nor do you measure by whether judge has actual bias. Many cases require recusal for any pecuniary interest.

W:  But what about trifling, insubstantial interest that is not finaincial?

C: That would not require recusal. Only direct and substantial personal interest in outcome requires recusal. Standard test of 9th circuit and most if not all other courts of appeals, it is simply whether reasonable person with all facts whether judge’s impartiality might be reasonably affected.  Quotes from plaintiff’s complaint that “they are similarly situated to heteros for purposes of marriage…:”

W: What is fact you rely upon that judge walker was in a relationship for purposes of marriage?

C:  The fact that he has publicly announced that he is and has been in a relationship with another person?

W: So if you are in a ten year relationship with another person, that is for purposes of marriage?

(laughter—this Cooper is so silly. He should do a Mennen deodorant ad, though. I think he’s still dry.)

C:  Blah

W: You would concede that you could be in a long term relationship without being in it for purposes of marriage?

C: Yes.

W:  What distinguishes it?

C:  Very fact that two individuals are in kind of relationship Walker has…

W: What distinguishes between two?

C: There are platonic friendships that do not lead to marriage. [laughter]

W:  What do you mean platonic?

C: Non-intimate, non-sexual. Clear understanding of media reports…

W:  You are saying that length of relationship alone converts to marriage relationship?

C:  Yes. Bespeaks commitment.  All of these have been used interchangeably.  Take pains to say they are in long term relationships.

W: Their relief was not to stay in long term relationship.  Nothing threatened their long term relationship. Neither they nor Walker threatened. They sought to change relationship. What fact would cite to the court that Walker sought to change his relationship?

C: (Stumbles…) There are several points I would make that a reasonable person with knowledge that judge walker would be expected to have an interest in marrying his long time partner. (Thought police, please) Judge Walker similarly situated for purpose of marriage just as plaintiffs.

10:00: After announcing that he plans to deny the motion filed by that the tapes be returned, Judge Ware moves onto the issue of whether to vacate Judge Walker’s ruling because of his sexual orientation. Transcript typed by Rick:

W:  Disclosure, I performed same-sex marriage. This is unusual circumstance. Recusal usually directed to trial judge. He’s no longer on the bench. I am not in position to know all things that he would know so I cannot be in position to recuse. A motion of vacate is directed at me. My understanding is that he had an obligation to recuse. Failing to so do, I am judge who assumed case. I am reviewing lack of recusal.  You briefed well. Both used same cases.  I don’t know why we gave you so much time to argue under these circumstances, and we did.

C:  We approach court awkwardly and not desirous of situation. Decision must be by impartial tribunal. Ancient maxim that no man can be jduged in own case or be tried when has interest in outcome.  Congress has codified for federal judiciary which mandates recusal in any proceeding in which impartiality might reasonably be questioned.  Does judge have any interest in outcome. Requries mandatory recusal if judge owns even one share of stock of company in question. If other kind of financial interest, whether or not interest would be substantially affected by outcome.

W:  I’ve looked at two as separate.  Pecuniary interest is “any.”  With respect to non-pecuniary interest, is qualified by being substantially affected by outcome. You would put two together, even pencuniary interest is substantial. Not claiming Walker had pecuniary interest.

C: No. But true that marriage has financial benefits that flow to it for those who participate in marriage. (No shit Sherlock. That’s why you lost the case.) The test is objective. Does not depend upon whether judge was impartial. Standard is to prevent even appearance.

9:57: UPDATE: Judge Ware says he plans to deny the motion that video recordings be returned.

9:48: AFER’s Theodore Boutrous is up for the plaintiffs. Rick writes in with a transcript of the dialogue between him and Chief Judge Ware:

B: Up to chief judge to decide this.  We have copy.  Very useful. Part of appellate, en banc or Supreme Court is we end up there. Cooper makes this sound as if it is radioactive state secret. It’s an important judicial record of open court. Walker allowed us to use in closing arguments.  I was present for every minute of trial, yet I used the tapes to help prepare myself. Cooper did not ask for copies.

We used portions of star witness Blankenhorn, so many clips of him supporting our case, we had to cull. To see him testify to our side, pictures worth a thousand words.

W:  Technically, protective order only for closing arugments.  It could be that protective order could be used for closed trial proceeding. Don’t you have an issue that you are acting in excess?

B: No. Use in court and for ourselves is within protective order. We’d need permission to use it in 9th. We have not played any video in 9th.  We have it available. Protective order would not limit us from using.

W:  Part of trial record?

B: Officially made part of record by Walker.  Transmitted as part of record to 9th Circuit.

W:  Transcript certified by recorded. What certifies video?

B:  Believe part of official transmittal.

W: Since part of clerk’s transmittal?

B: Yes.  And Walker relied on video in preparation for his ruling. In context of public action,very useful record.

W:  No doubt its useful. One of reasons for credibility by appellate to trial is that trial can watch and see pauses, etc. Might be some concern that appellates can see trial would hurt deference to lower courts.

B:  (Laughs) We don’t want that.  Cooper has agreed that protective order w/Walker moot. Up to you to decide. W/repsect to plaintiffs, just want video.  Look forward to arguing about public access. One thing relevant here: by attacking Walker, important for public to see.  For today, important to let us keep.

W: You have no objection to protective order as stands?

B: No.

W:  Cooper, do you believe order has been violated?

C: No.

9:43 PST: Arisha writes in with an update:

New facts.  Judge Ware was the person who first gave Judge Walker a copy of the trial recordings at a retirement/ passing of the gavel ceremony.  Ware asks Cooper if he should recuse himself? There’s an audible laugh from the gallery.

“I don’t need an answer now,” Ware continued on the issue of his recusal. The two white-haired men in front of me from the Protect Marriage side glanced at each other again and shook their heads in disbelief.

Cooper finishes.  Boutrous up now.

9:38 PST: Continuing the dialogue between Judge Ware and Cooper, typed by Rick:

C:  Our view is that plaintiffs don’t need them anymore. We do not doubt they’ll stick to protective order, but so long as the tapes are not in sole possession of court might be inadvertently leaked.  No serious justification for why tapes under seal… Judge said would only be used in chambers…

Ware: Wouldn’t this be more appropriate for appellate court?

C:  We tried that. They sent it to you.

Ware:  Remand is for district court to decide if useful for appellate court?

C:  We understand…

Ware:  Too general. Is it your position that appellate court remand to district court to allow our disallow use of tapes?

C: Yes, we believe that court can make a judgment..

Ware:  I can make a judgment about a lot of things. But are you saying that I am to decide to whether certain information is available to appellate court?

C:  We only ask that tapes be returned to court.

W:  Do you have copy?

C:  No.

W: Who does?

C:  Only held by SF, Plaintiffs and appellate court.

(this is so goofy. He started out by saying his argument is moot because Walker gave the tapes back.)

W: I have to ask a recusal question, somewhat tongue in cheek. The tapes were given to Walker at event over which I presided. Do I now need to recuse myself because I passed the tapes to him?


C:  Did court know…

W: I was unaware of the details of this case. The fact that I presided over that, do you want me to recuse?  You don’t have to answer now.  I’ll take some time to rule.

C:  We do not consider this an issue for recusal.  We wave in light of foregoing.

9:36 PST: Arisha’s take on the dialogue:

Cooper now laying out the procedural history (the facts) that lead to file a motion to bury the trial recordings.

Cooper arguing that the Prop 8 case – because of its controversy – was not a strong candidate for a Northern District pilot program to broadcast the case.

Ware seemed to take issue with this characterization but allowed Cooper to continue.

Cooper now arguing that Judge Walker promised that only he’d use the tapes.

Judge Ware interrupts: The court indicated that recording could be useful to the parties for preparing for court. It’s not my understanding that Walker restricted the tapes only for his use.  The restriction is not as great as you’re describing.

Ware asks an interesting question: is Judge Walker subject to the protective order?

Cooper says that he does not think so.

Ware: can the parties use the tapes on appeal? Yes or No.

Cooper: No.

Two white-haired men sitting in front of me from the Protect Marriage side just glanced at each other and sighed as Ware was challenging Cooper – as if they were saying to one another silently (“this isn’t going well.”)

9:30 PST: Continuing the colloquy between Judge Ware and Cooper as started in the update posted at 9:27:

Cooper:  Our motion was precipitated by a speech at University of Arizona on Feb 18th by then-Judge Walker. Within that speech, images of proponent’s witness. January 10th, Supreme Court issued emergency stay to stop live broadcast in other courthouses. Amendment of local rule designed to permit video had not been promulgated. [Reads Scalia opinion.] Cooper says inappropriate to televise high profile trial.

Ware: Not my recollection, but what is your point?

Cooper: We asked in trial to stop recording. Walker said he would do so anyway under rules.  Prohibits public televising/broadcasting, and Walker assured us that would be the case.  (though Walker’s University of Arizona speech was on c-span). Was supposed to be for his personal purposes in chambers. Would be helpful for finding of facts.  We did not therefore try to stop continued recording. Had we thought recordings would be used and publicly broadcast, or might be retained by court for Walker’s non-judicial use..

Ware: Let me ask one clarification. I have not studieds equence of events. Court said would be useful to parties. Not unusal to have parties use video during trial. The docket reflects that might have been copies given to parties. Continue to have them. Presumably to use in appeal. Restriction not as great as you describe.  Correct me?

Cooper: Correct.

9:27 PST: A back-and-forth transcript between Chief Judge Ware and Charles Cooper, attorney for

Cooper:  Walker did make tapes available to plaintiffs and city of SF. Specific purpose not for public broadcast or televising outside of confines of courthouse. Only for in courthouse.

Ware: My understanding is they were placed under protective order. Your understanding is that must be used only in court.

Cooper: Yes. Court’s amendment to assurances were consistent with court rules on videos. Plaintiffs under protective order.  We did not prevent.

Ware:  Any authority that judge is subject to protective order?

Cooper: No. We haven’t voiced that consideration.

Ware: Sounds like an argument as to whether Walker made a mistake by displaying videos publicly. No such motion. If there were, I would want Walker present. Why are you doing this?

Cooper:  Not sure what you mean by “mistake.” We say Walker’s use was a mistake and contrary to rules.

Ware: What relief you seek from me?

Cooper:  Seeking that court as custodian of record of case esp. that which is sealed ordered that all persons return them to the court including Walker.

Ware:  You want me to order all parties to return to court and not to allow further use even on appeal?

Cooper:  Our view is different for plaintiffs.

Ware:  That’s a no.  I don’t understand the protective order to preclude use by parties.

Cooper: After closing arguments, we asked Walker to order all copies to be returned to court.

Ware: Did he do that?

Cooper:  No, because plaintiffs argued they might be useful on appeal.

9:17 PST: Rick writes in as the dialogue commences:

Cooper and Boutrous intro themselves to court.  Therese Stewart intros. Will address court on both motions, but only a minute or two on video. More substantive on vacate. Won’t try to repeat what Boutrous says; will try to keep short.

Judge: Your client is more interested in the motion to unseal the video tape. I’ve decided to bifurcate that. First, get understanding of video and then may be wider group interested in the public availability  of it. I should not reserve any time for you and doubt if I’ll have questions.

Cooper: Suggest mootness. As primary relief, sought Walker to have trial recordings returned and placed under seal, so depending upon court’s inclinations, our motion may be moot. The cross motion to unseal and make public is not moot. Understand those issues will be taken up at later time.

Judge: Middle area: it is true that I issued order to Walker to show cause why not return copy. He returned. I have not taken up question of whether or not he’s entitled to have.  Disclosure is another question separate from whether he’s entitled to have. He has not been brought before court formally. He has not been brought before court. I cannot do anything to him. It may well be that I give it back to him with finding protective order still in effect and would govern his use.  Others may have subject to protective order. Want to find out if anyone else has.

9:14 PST: An update from Arisha:

The atmosphere today – both inside the courtroom and out – is much less chaotic than I thought it would be.  When the case was before the Ninth Circuit, everywhere you looked there was a prominent leader from both the lgbt and anti-equality sides.

Today, there’s no sign of the NOM regulars – no Maggie Gallagher, no Jennifer Roeback Morse. Is it possible that even those two women are ashamed to show their face for the shameful argument that is about to make?

Judge Ware has just entered the court and is giving an outline for the day. As Rick wrote, first we’ll deal with the  tapes (each side will have 20 minutes), followed by the motion to vacate issue (each side will have 45 minutes and Judge Ware noted that this is an uncommonly long time for argument).  Charles Cooper will be arguing both issues for and Theodore Boutrous will be arguing for equality.

9:11 PST: An update from Rick:

Walker always started on time.  It actually feels different in here now, maybe because of my expectation.  Judge Walker has a wry sense of humor, always dapper and as I and other who  live-blogged noted, always fair. He allowed more leeway in that trial than any other patient or even not so patient judge would.  Yet Mr. Cooper, Mr. Prentice and team say it’s a kangaroo court.  We’ll see who bounces where.

At 9:07, Judge Ware walked in.  Outlines what he intends as matters and then as we address, you can intro yourselves.  Two issues: taperecording and vacate.

First hear video tape motion and then go to judgment.  20 minutes for each on video tape and 45 minute each on vacate, which is quite liberal by district court rules.

This is a human institution, so we’ll take breaks.

9:08 PST: An update from Arisha, Courage’s lawyer turned National Field Director whom many of you remember from the NOM Tour Tracker work:

A few thoughts while waiting for the hearing to start….

One thing you quickly learn as a straight African-American organizer for lgbt equality is to avoid at all costs comparisons between the lgbt and the black civil rights movements — it’s offensive to some, lesbians and gays — although they’ve faced tremendous discrimination – were never slaves, blah, blah, blah.  I’ve lost track of all the reasons over the years, but most in the movement can attest to it’s validity. (I don’t know that I agree with this narrative tactic, but that’s another blog post for another day).

As someone who has resisted this narrative, this morning I woke up with a tingly-feeling – for at least one day – in this court room the comparisons will be unavoidable. If the lgbt movement is to succeed in the federal judiciary it will do so on the backs of precedents set during the black civil rights movement.

So today, I am thrilled – the comparisons are unavoidable.

9:05 PST: This is the live thread for today’s Prop 8 hearing. Rick, Arisha and Ana are all inside the courthouse and we’re waiting for Judge Ware to come in. An update from Rick:

We’re in the same courtroom that Judge Walker used for the Prop. 8  Trial. The plaintiff’s table seems happy, even bubbly. At one point earlier a gale of laughter erupted around Ted Boutrous, the amply coiffed lead attorney for our side.  Mr. Cooper and his team sit quietly, which as I tweeted is their best case. They essentially had no case during the trial; expect them to repeat themselves.

It was much easier ot get into the courtroom and overflow this time.  While there’s interest, there’s not as much. After all, ten months ago Judge Walker smote Prop. 8 with his pen after an exhaustive trial.  This hearing is only about one thing: blaming the judge for Mr. Cooper’s loss. If they can make a big enough media circus out of the fact that Judge Walker is gay, they’ll be able to say, “see, he was biased.  That queer judge out in San Francisco ruled for his own people. “  This logic is all they have left. If the California Supreme Court rules that Cooper et al have no standing, then marriage will be legal in California. NOM/ProtectMarriage will blame the judge, whip up the money, and keep fighting.

What’s really exciting today is that they are so desperate. On the way into the courthouse today, Ted Boutrous said to me, “Every major civil rights battle has gone through this,” where they blame the judge.  Why not now?

It’s dead quiet in here.  Cooper’s table includes a total of five; our side has eight, including Boutrous, Chris Dusseaux, Therese Stewart (Deputy SF City Attorney), Enrique Monagas.

9:02 AM PST: Some photos of the rally this morning before the hearing, taken by Ana Beatriz Cholo, Courage’s communications manager:

The Motion to Marry rally

Courage’s Rick Jacobs speaking with reporters
Motion to Marry rally


  • 1. Kate  |  June 13, 2011 at 9:10 am

    Ah, Therese; be still, my heart.

  • 2. Elizabeth Oakes  |  June 13, 2011 at 3:15 pm

    …and as usual, she knocked it out of the park. Sigh…when I was little, I wanted to be a ballerina. Now I want to be Therese Stewart…well, maybe Captain Picard.

    Or maybe it's time to give Therese her own Starship command. Make it so!

  • 3. Alan E.  |  June 13, 2011 at 9:12 am

    Checking in! (if many can read this)

  • 4. Rick  |  June 13, 2011 at 9:13 am

    "lesbians and gays — although they’ve faced tremendous discrimination – were never slaves." Not true. Surely there were slaves who were lesbian and gay.

  • 5. Kate  |  June 13, 2011 at 9:13 am

    Heads up to Alan E. and anyone else there who is posting from their phone — your posts do NOT show up on the P8 site for those of us at desktops/laptops, only in the "recent comments" column. Only those with an iphone/itouch can read them. Sniff.

  • 6. LCH  |  June 13, 2011 at 9:14 am


  • 7. Hero  |  June 13, 2011 at 12:07 pm

    Totally stolen for facebook status. love it 🙂 <3

  • 8. David From Sandy UT  |  June 13, 2011 at 9:14 am

    >> "So today, I am thrilled – the comparisons are unavoidable."

    The details are HUGELY different, but the ethics of racial discrimination and sexual-preference discrimination are exactly the same (and many of the vile and disgusting justifications are almost identical).

    THANK YOU for your comment.

  • 9. Robert in Idaho  |  June 13, 2011 at 9:49 am

    Not to get off track, but I'd love to hear Arisha's thoughts on this sometime. I've had trouble with how to adress this issue. How do you talk about linchings and the right to marry without referencing the Black experience. How do you talk about the holocost without referencing the Jews. How do you talk about being kept by statute from your chosen carreer (teaching and the military) without referencing the Chinese American experence.

  • 10. LCH  |  June 13, 2011 at 10:22 am

    Speaking for myself as a Chinese American. I have no problems with our past struggles being compared to the current struggles of LGBT people. It's the reason I am an ally. There were people who fought for our rights as Chinese Americans, it's time we pay it forward.

  • 11. Carpool_Cookie  |  June 13, 2011 at 12:51 pm

    Thank you : )

  • 12. Carol  |  June 13, 2011 at 10:34 am

    Exactly! I'm neither black nor gay, but it harms me as an American PERSON that some people's rights are more equal than others. Most everybody in this country, or their ancestors, have suffered and/or perpetrated some kind of discrimination, though the details may vary. The constitutional and aspirational principle is that we are all entitled to be treated equally, regardless of how we have been treated in the past.

  • 13. Joe  |  June 13, 2011 at 11:53 am

    As a white male, I can't ever portend to say that I've suffered the exact same way that many other people have. I noted that in a case in Wisconsin where same sex couples were threatened with jail if they were to marry in Iowa. (The law is still on the books, FYI.) But the law wasn't directed at gay couples, it was originally directed at interracial couples, but the law covered anyone marrying in another state where they would not be legally wed in Wisconsin.

    At the same time, it's impossible not to make a parallel between the two. For example, the arguments that people voted for Prop 8, would it not have been the case that courts should have let Prop 14 in 1964 stand, which amended the constitution (by a vote of 65%!) to allow landlords to discriminate on the basis of race? Or in this very case, if a gay judge can't preside over Prop 8, should Thurgood Marshall, a black judge, been allowed to preside over so many civil rights cases?

    No, the experience is not the exact same. But absolutely yes, parallels can be drawn.

  • 14. Str8Grandmother  |  June 13, 2011 at 12:05 pm

    Thank you for your comments. Do you know the case name of that Wisconsin case? I'd like to look that one up when I have time.

  • 15. Sapphocrat  |  June 13, 2011 at 12:43 pm

    Sapphocrat from here — IDing myself because I'm not sure I can reply without logging in from some other system or must reply as a guest (I hate IntenseDebate). That said…

    Str8G, it's not a case (yet), but Wisconsin statute 765.04(1), on the books since 1915:

    "If any person residing and intending to continue to reside in this state who is disabled or prohibited from contracting marriage under the laws of this state goes into another state or country and there contracts a marriage prohibited or declared void under the laws of this state, such marriage shall be void for all purposes in this state with the same effect as though it had been entered into in this state."

    Violation is punishable by a fine of up to $10,000 + 9 months imprisonment.


    Appalling, isn't it?

  • 16. Joe  |  June 13, 2011 at 1:58 pm

    Thank you. You beat me to it.

  • 17. Joe  |  June 13, 2011 at 2:04 pm

    This case really should be tested. We need to find some adorable WI couple who's been together for years and years, have them get married in Iowa, let the homophobic town sheriff (how hard can that be to find?) find out about the law and the couple and let the case run its course. Show the public how barbaric these laws really are.

  • 18. Ronnie  |  June 13, 2011 at 9:16 am

    Pictures….awesome bright rainbow…..<3…Ronnie

  • 19. David From Sandy UT  |  June 13, 2011 at 10:33 am

    I wish more people would use the original (more colors) flag. I like it better.

  • 20. Mark Mead-Brewer  |  June 13, 2011 at 9:19 am

    Morning everyone…..feels like a good day for equality

  • 21. JC (one of the 18,000 couples in CA)  |  June 13, 2011 at 9:30 am

    Lordy, Cooper continues to be obfuscatory and weak.

  • 22. AnonyGrl  |  June 13, 2011 at 9:36 am

    Ware: What relief you seek from me?

    Err… I think that is the first clue that Cooper should simply pack up and duck out now.

  • 23. Christian  |  June 13, 2011 at 9:40 am

    Less than 30 minutes after the Judge enters the court is seems to me that Cooper is already on a sinking ship.

  • 24. Kate  |  June 13, 2011 at 9:44 am

    This just gets better and better! (Ware being the one who gave Walker the tapes.)

  • 25. Alan E.  |  June 13, 2011 at 9:49 am

    A tiny win! Motion to order all owners of the video recording to return copies to the court DENIED!

  • 26. Jpk!  |  June 13, 2011 at 9:49 am

    Sigh I wish we could actually watch this going down I'd love to see his face!

  • 27. Bry  |  June 13, 2011 at 9:52 am

    Is it just me or is this just like an insanely bizzare argument? I'm not sure if I'm even following wtf it is Cooper is asking. He wants the tapes under lock and key even to the point that they can't be used in the 9th Circuit case? So basically he's saying "we know that evidence makes our case look really bad so we don't want it being used in the trial"

    …..Chewbacca defense in T minus 5…. -holds head- my brain hasn't been sufficiently caffinated for this level of stupid yet.

  • 28. Prop 8 Trial Today: Is Wa&hellip  |  June 13, 2011 at 9:53 am

    […] Prop 8 Trial Tracker has got you covered with live updates, AFER with Tweets. […]

  • 29. Bob  |  June 13, 2011 at 9:58 am

    I’m just wondering where is Kathleen,,,,,,, hope she has a good seat in Court,,,,, am thinking so much of her and all the work she has done for us surrounding trial,,,

    Hi to Kathleen from Canada

  • 30. AnonyGrl  |  June 13, 2011 at 10:01 am

    Cooper coming IN saying his own motion is moot does not bode well for him. And Ware making recusal jokes kind of seals the deal, don't you think?

    I am having little "tee hee" moments here as I am reading! Yay!

  • 31. adambink  |  June 13, 2011 at 10:03 am

    Update I posted above: Judge Ware announced he will deny the motion to have the tapes returned. Moving on to the next motion regarding recusal, he disclosed that he presided over a same-sex marriage.

  • 32. shygurl  |  June 13, 2011 at 10:06 am

    LOL, Rick! Cooper: "true that marriage has financial benefits that flow to it for those who participate in marriage. (No shit Sherlock. That’s why you lost the case.) "

    Keep up the good work!

  • 33. Larry  |  June 13, 2011 at 10:10 am

    "My understanding is that he had an obligation to recuse" Um, did Judge Ware just say he thought Judge Walker should have recused himself?

  • 34. Leo  |  June 13, 2011 at 10:18 am

    <cite>But true that marriage has financial benefits that flow to it for those who participate in marriage. (No shit Sherlock. That’s why you lost the case.)</cite>

    Is that actually true if compared to domestic partnership? With DOMA in effect, there shouldn't be any difference financially.

  • 35. James Sweet  |  June 13, 2011 at 10:27 am

    I think there is a problem with that argument anyway, because here it assumes only the potential for an indirect pecuniary interest. If that were sufficient grounds for recusal, then no judge could hear a case involving income tax (unless she weren't getting paid to be a judge and had no other source of income, I suppose…).

    The bad guys mention that a judge has to recuse if she owns even a single share of stock in a company involved in a case. Which makes sense. But by the argument they are putting forward here, no judge could hear ANY case involving ANY publicly traded companies, because she could potentially buy that company's stock at some point in the future. Uh, no.

  • 36. Kate  |  June 13, 2011 at 10:20 am

    Hey Cooper: I've been in a 10-year relationship, too, and I have no desire to get married.

  • 37. Carpool_Cookie  |  June 13, 2011 at 12:55 pm

    As soon as the argument was made that long-term relationships indicate certainty of eventual marriage, I had visions of millions of straight men across America messing themselves….

  • 38. Joe  |  June 13, 2011 at 1:55 pm

    My cousin and my uncle are two of them, each in 20+ year unmarried relationships. 🙂

  • 39. Carpool_Cookie  |  June 13, 2011 at 3:55 pm

    This is speculation…but after one's been in a 10+ year relationship, isn't it kind of assumed you're NOT going to get married?? I mean, if someone stayed in a 10+ year relationship thinking it was leading to marriage, I'd think they were probably on pretty disillusioned ice…

  • 40. Joe  |  June 13, 2011 at 5:11 pm

    That was my assumption as well!

  • 41. Kate  |  June 13, 2011 at 10:20 am

    Why am I in moderation and can't post?????

  • 42. adambink  |  June 13, 2011 at 10:22 am

    The comments are posting fine. Things are a little slower because of traffic.

  • 43. Carpool_Cookie  |  June 13, 2011 at 12:57 pm

    @ Kate Re: "Why am I in moderation and can't post????? "

    Because Cooper has asked that you be recused…hearing is this Monday.

  • 44. Kate  |  June 13, 2011 at 3:57 pm

    I love you, Cookie!

  • 45. Mark Mead-Brewer  |  June 13, 2011 at 10:22 am

    My posts don't seem to be getting through 🙁

  • 46. adambink  |  June 13, 2011 at 10:23 am

    This was posted at 1:22 PM and here it is.

  • 47. Mark M. (Seattle)  |  June 13, 2011 at 1:01 pm

    Thanks Adam…but 1:22 pm hasn't even happened yet for me
    Regardless, the one post did finally make it…..

  • 48. LCH  |  June 13, 2011 at 10:27 am

    Am following along on Twitter. Proponents suffering from a bad case of getting what you asked for. Ware is no where as indulgent as Walker was with their non-answers. *snerk*

  • 49. Kate  |  June 13, 2011 at 10:27 am

    I love Ware! I'm even willing to help him out with his boat payments. 🙂

  • 50. adambink  |  June 13, 2011 at 10:30 am

    Lengthy colloquy just posted above, folks.

  • 51. James Sweet  |  June 13, 2011 at 10:33 am

    Ware asks Cooper is there a such thing as a reasonable bigot?

    Ooooooo, that's going to piss off the bad guys something awful!

  • 52. Str8Grandmother  |  June 13, 2011 at 11:04 am

    That line, "Is there such a thing as a reasonable Bigot" will get repeated often.

  • 53. adambink  |  June 13, 2011 at 10:35 am

    A minor thing, folks, but I changed IntenseDebate settings so now comments are 100 per page, which is the maxmimum allowed, which should shorten the amount of page scrolling for long posts like these.

  • 54. Sapphocrat  |  June 13, 2011 at 6:39 pm

    Adam, does that mean that when the counter hits 100, earlier comments are spirited away into the ether, never to be seen again? (An early exchange between Str8Gran & me is gone — and it had some rather valuable info in it.)

  • 55. adambink  |  June 13, 2011 at 6:58 pm

    No, it just means you may have to hit the page 2 button to show the next page of comments. See the example I posted as a link in the comment to which you replied, Shannon/Chris Q&A thread, as an example.

    If you're referring to your exchange about the Wisconsin case (I think you are), it's there, you just have to turn on the thread for that exchange by hitting the 9 replies arrow button on David From Sandy UT's thread above it. Your exchange was part of that long thread.

  • 56. Elizabeth Oakes  |  June 14, 2011 at 9:12 am

    Would it be possible to post a perma link to the IntenseDebate FAQ page somewhere in the menus? I need to read up on how to delete a dupe post, doh.

  • 57. Adam Bink  |  June 14, 2011 at 9:18 am

    Go to I’ve found it great to play around. An FAQ is a good idea, though we’re still learning things ourselves!

  • 58. Sapphocrat  |  June 14, 2011 at 1:05 pm

    Thoroughly confused, but off to figure it all out now (for some reason, I wasn't seeing a page 2 button, or even "X replies" on individual posts yesterday).

    Muchas gracias, Adam!

  • 59. David From Sandy UT  |  June 13, 2011 at 10:35 am

    >> "No strong answer from Cooper. Cooper now saying that a gay judge could rule on “Don’t Ask, Don’t Tell”."

    Open mouth. . . insert both feet

  • 60. SD_Dave  |  June 13, 2011 at 10:41 am

    W: In this case, Walker need not to have disclosed orientation.
    C: That is true. We have made that clear from beginning when first news reports surfaced.

    Then someone PLEASE tell me, why "we are here?"

  • 61. Str8Grandmother  |  June 13, 2011 at 12:10 pm

    I think they are saying that we knew Walker is gay before the trial but we found out AFTER the trial that he is in a 10 year relationship. We did not object to a gay judge but now that we know he is in a long term relationship we are going to jump, no leap, to the conclusion that he wants to get married. He should not have heard a case that he has an interest in the outcome that will benefit him.

  • 62. Mouse  |  June 13, 2011 at 1:20 pm

    And since the folks at courage campaign have us quoted repeatedly saying that we didn't object to him being gay, we had a $10,000 brain storming session at out beach house to come up with this new plan of attack, er, I mean strategy.

  • 63. Carol  |  June 13, 2011 at 10:41 am

    Poor Cooper. He's gotta be wishing his time was up. Ware is the cat batting around the baby mouse that is terribly confused by now from all the blows to the head.

  • 64. Kelly  |  June 13, 2011 at 10:44 am

    Hello from Iowa!
    Even though I have the capability to marry the woman I love in my state, I am still personally invested in this case. I hope that my friends in California will soon have the same right, and set the precendent for other cases surely to follow.

  • 65. Craig  |  June 13, 2011 at 10:46 am

    Ware should be asking Cooper whether Walker chose to marry when it was legal in CA. How can Cooper say Walker wants to marry when he specifically chose NOT to when he had the chance??


    Bless Cooper's heart, though. He knows he has no case; he has no choice but to try to get away with whatever he can; but surely he sees as clearly as the rest of us that is is NOT going well for him.

    Wish Maggie were there to see it in person!

    — Craig.

  • 66. Joe  |  June 13, 2011 at 11:46 am

    Yeah he's not even in a domestic partnership.

  • 67. Str8Grandmother  |  June 13, 2011 at 12:15 pm

    How do we know he is not in a Domestic Partnership?

  • 68. Joe  |  June 13, 2011 at 1:53 pm

    You are correct. I should say, he has never disclosed he's in a domestic partnership. 🙂 Are these things public record?

  • 69. Carpool_Cookie  |  June 13, 2011 at 3:58 pm

    I think CA domestic partnerships are public record, whereas marriages are not. Which may have come up in trial: That domestic partnerships put same sex partners at risk for violence, as their status can be accessed. Marriage offers the protection of anonymity (At least, that's how I remember it…I could be wrong!)

  • 70. avs  |  June 13, 2011 at 4:07 pm

    As I understand it, marriage in CA is public by default. However, you can file for a confidential marriage which would not be public. There is no corresponding confidential domestic partnership.

  • 71. DebbieC  |  June 13, 2011 at 10:48 am

    W: You repeated it again. I hear me. I recognize my voice. I’m not sure you hear yours.

    Love <3

  • 72. Ғĕłỹҳ  |  June 13, 2011 at 10:52 am

    Coop began with, "It seems to be a moot point." Very reminiscent of the 'We don't have no stinkin' case so please rule in our favor anyway.' argument.

    Personally I think Cooper is having a very difficult time with this since he has absolutely nowhere to insert the phrase 'responsible procreation'!

  • 73. Str8Grandmother  |  June 13, 2011 at 12:44 pm

    Oh yes thanks for the reminder,
    Cooper- "We don't need any evidence"
    Walker- "You don't need any evidence?"

  • 74. Carpool_Cookie  |  June 13, 2011 at 3:59 pm


  • 75. Bry  |  June 13, 2011 at 11:07 am

    Someone needs to send Judge Ware a huge bouquet of flowers for the unleaded awesome

  • 76. Str8Grandmother  |  June 13, 2011 at 11:07 am

    The server went down for a few minutes right after I finished reading the 10:35 post from Rick, took me 2 to 3 minutes for the page to finally load.

  • 77. Str8Grandmother  |  June 13, 2011 at 11:17 am

    Same thing just happened again. Got an error message that the server could not meet my request. Maybe it happens when it is the exact same moment Adam is loading comments or something. The refresh the page is extremely slow on my computer, and sometimes it won't refresh. Maybe it is just me.

  • 78. DebbieC  |  June 13, 2011 at 11:19 am

    There have been several versions of the flag –

  • 79. DebbieC  |  June 13, 2011 at 11:19 am

    There have been several versions of the flag –

  • 80. Heather  |  June 13, 2011 at 11:19 am

    This trial is making my day so far. I love it!

  • 81. adambink  |  June 13, 2011 at 11:33 am

    OK, after some server overload issues because of traffic, things are starting to return to normal. Many updates posted at the top, folks.

  • 82. Ғĕłỹҳ  |  June 13, 2011 at 11:37 am

    Last Minute Hail Mary Pass….

    Who wants to bet no one bothered to say a Hail Mary even?!

  • 83. Str8Grandmother  |  June 13, 2011 at 11:42 am

    Based on Arisha's comments about the story of black's not supporting Equal Rights for GLBT on Prop 8, I gotta ask, and the thought had not occurred to me prior, to even think about race, but is Judge Ware Black?

  • 84. adambink  |  June 13, 2011 at 11:52 am


  • 85. Timothy  |  June 13, 2011 at 12:05 pm

    Ware is a black man married to a white woman… I suspect he takes "rules about who you can marry" a bit personally.

  • 86. Joe  |  June 13, 2011 at 5:10 pm

    Was he supposed to disclose that? 🙂

  • 87. Joe  |  June 13, 2011 at 11:44 am

    C: A reasonable person would not think a black or white judge would be unreasonable.

    W: Why not?

    C: Because they are not then reasonable.

    Ah yes, the "it isn't because it isn't" defense. Fails every time.

  • 88. Ғĕłỹҳ  |  June 13, 2011 at 11:46 am

    Ok so according to Cooper…

    Gays don't really want to get married, unless they are in a long-term relationship, where they don't really love each other and therefore just want to get married like the heteros who don't really love their spouses so please save the gays from themselves by not calling us bigots who take away rights but instead are protecting civilization as we know it from harms that we are not obligated to disclose in the same manner that Walker IS obligated to disclose that he DOES NOT want to get married… responsible procreation. Um kay?

  • 89. Joe  |  June 13, 2011 at 11:47 am

    When when he dismisses the order to vacate (and he will), they'll use that an excuse that the judge judging on the bias is biased. Isn't this fun?

  • 90. married w/ children  |  June 13, 2011 at 11:51 am

    Why doesn't Boutrous make the argument that if judges' personal relationships should lead to recusal, then any HETERO judge in a married or long-term relationship should also be recused in this case, since cooper et al have said that it is hetero people and the heterosexual marital institution that will be irreparably damaged if same sex marriages are (re)-legalized? Don't Heterosexuals have, then, even *more* pecuniary interest in this case's outcome than Homosexuals do? Likewise, anyone with an unmarried heterosexual child who might someday get married would also be damaged by the presence of legal same-sex marriages… so people with straight kids should also recuse themselves (if we believe their argument about the harm same sex marriages cause for heteros… which of course we don't!).

  • 91. Str8Grandmother  |  June 13, 2011 at 12:31 pm

    I think you make a very good argument.

  • 92. Vynce  |  June 13, 2011 at 12:37 pm

    I too was very disappointed that this argument wasn't made. Either (a) straights are not concerned with gay marriage, in which case no case, or (b) heteros also cannot judge this case.

    Similar self conflict: if we can reasonably assume (as Cooper wold have it) that a man who has been in the same relationship for 10 years has an interest in getting married, can't we also assume that his desire to marry is reasonable? And, of course, there's always the P8TT logo suit…

  • 93. Adambink  |  June 13, 2011 at 11:55 am

    Does this comment post ok?

  • 94. adambink  |  June 13, 2011 at 11:57 am

    Yes, it does!

    I just changed the settings on posting from mobile devices, and for iPhones at least, you should be able to post from an iPhone and have it show up on desktops/laptops.

  • 95. Timothy  |  June 13, 2011 at 12:03 pm

    I am one of those who noted that African Americans did, indeed, vote for Prop 8 in large numbers. But as for "blaming" anyone, that's really kinda foolish. Yeah black folks voted probably around 70-30 (and perhaps not that drastically), but folks in Kern County voted more than 75%. And every county in the San Joaquin Valley voted more than 65%. Do we "blame" black folk or "blame" the mostly white and hispanic folk in the Valley?

    We don't blame either. We blame ignorance, fear, tradition, liar on the other side, confusion, a less than stellar performance by our community, religious zeal. The black community is an area we missed. It is one a many. We also should have utilized the Methodists and Lutherans and Episcopalians to take up a religious righteous cause (and yes, they would have) just like the other side used the Mormons. We should have build inroads into rural counties. And yes we should have build strong networks in communities of color.

    Ok, so much for my soapbox

    Arisha… I like your list. But you left off two VERY important names of two very important folks for endorsed marriage equality: Corretta Scott King and Mildred Loving. (John Lewis is worth a mention as well, and a lil' nod to Rt. Rev. Chester Talton, the new Episcopal Bishop of the San Joaquin Diocese who announce last week that his churches can bless same-sex marriages.)

  • 96. James Sweet  |  June 13, 2011 at 12:57 pm

    Yeah, it's always bugged me a bit how the P8TT official line seems to be to deny that black voters disproportionately voted in favor of Prop 8, when that flatly contradicts reality. Was it enough to tip the scales? No, probably not, it seems the bad guys would have won anyway. Is it BECAUSE the voters were black? Of course not, it's because African Americans happen to be the most religious demographic in the US, and virtually all of the opposition to marriage equality is religious in origin (no offense to those believers who are on the right side of history!) so you do the math. This result was predictable.

    There's no "blame" here, but let's not close our eyes to reality. As you said, recognizing this reality is potentially useful as it suggests a target demographic for improvement.

  • 97. fiona64  |  June 13, 2011 at 1:14 pm

    ::sigh:: Ethnicity was NOT the major factor leading to votes in favor of Prop 8. (I am so tired of explaining this.) The major factors were age and a high degree of religiosity. One of the many sources available:… .

    So yes, let's not close our eyes to reality, shall we?

  • 98. James Sweet  |  June 14, 2011 at 4:31 am

    I wrote: "Was it enough to tip the scales? No, probably not, it seems the bad guys would have won anyway. "

    fiona64 wrote: "Ethnicity was NOT the major factor leading to votes in favor of Prop 8. (I am so tired of explaining this.)"

    Read much?

    Yes, the major factors were age AND A HIGH DEGREE OF RELIGIOSITY. And as I wrote, "African Americans happen to be the most religious demographic in the US."

    Do. The. Math.

    So what are you saying, because the reason that California blacks disproportionately voted in favor of Prop 8 was because of their religiosity rather than their race, that means any suggestion of an outreach effort is inherently racist? That's retarded.

    Black churches are predominantly anti-gay. This is a fact. It's not African Americans' fault, obviously, and the implication that anyone might be suggesting that is offensive. Rather, it's the fault of these slick preachers who perpetuate a misogynist homophobic authoritarian regime throughout the black community so they can continue to reap donations from their largely female and elderly congregations.

    From the exact link you sent: "The study also found that after taking into account the effect of religiosity (as measured by attendance of religious services), support for Proposition 8 among African Americans and Latinos was not significantly different than that of other groups."

    Yes, BUT, African Americans and Latinos have a hell of a lot more of that lovely "religiosity" than "other groups", so…

    It's apparently not okay on this forum to say we should be targeting religious people (even though it's painfully obvious to some of us that religion is THE single remaining cause for opposition to marriage equality, regardless of those of you who are in religions who didn't manage to eff this one up… the problem here is that religious dogma has no epistemological underpinnings, so while your made-up crap may not be anti-gay, if it's MADE UP then who knows what it's supposed to be? Tell me Fred Phelps' interpretation of what God wants is wrong. Explain to me how you prove that. You can't. Oh, you can argue over the intention of the oriignal Hebrew in the Bible, but maybe God intentionally made it confusing so that people would get the proper anti-gay message in modern times, hmmm? You can't say that's not what happened. With there being no agreed-upon basis for determining the will of God, you can't say Phelps is wrong. I can say he's wrong, because I go in for, you know, evidence and stuff, but if you go in for faith, you can't tell me Phelps is wrong. Who knows?!) Okay, woah, distracting rant there. Anyway, blacks are more religious, and the religious are more anti-gay. Multiply the two together and get over it.

  • 99. James Sweet  |  June 14, 2011 at 4:38 am

    Let me try this in non-ranty mode.

    I find it baffling that I can say, "Due to their being the most religious demographic in the US, African Americans disproportionately voted in favor of Prop 8" and then someone comes along and sighs and tells me I'm wrong because "That's not true at all! If you adjust for religiosity, African Americans voted for Prop 8 at the same rate as other groups!" Um. Yeah, exactly.

  • 100. Jon  |  June 13, 2011 at 12:11 pm

    What do you mean you can't tell if someone's Episcopal? Just use your Episcopadar! E.g. did they use the correct salad fork?

  • 101. Ғĕłỹҳ  |  June 13, 2011 at 12:23 pm

    Oh man was that funny! I scared the cat when I burst out laughing!!! Gotta use that one! <3F

  • 102. Str8Grandmother  |  June 13, 2011 at 12:32 pm


  • 103. Kate  |  June 13, 2011 at 4:10 pm

    Most clever post of the day award goes to Jon!

  • 104. sffilk  |  June 13, 2011 at 12:15 pm

    I'm thinking that no matter how this judge rules, it's heading to the U.S. Supreme Court. At that point, I'm thinking that it'll go our way if only because our side's attorneys know how to better present the case in front of the U.S. Supreme Court and do so in such a way that the only proper way for the justices to rule would be in our favor.

    That said, I think Judge Ware is going to rule on our favor.

  • 105. Ғĕłỹҳ  |  June 13, 2011 at 12:16 pm

    Ware: "It is my intent to give you a written decision quickly. I'd like to say by about 24 hours, but you know how that goes."

    Hmm… 24 hours or so, eh? I can't see ANY way to discern if he has made up his mind yet based on this little tidbit!

    Excerpt from Under the Bus: The Unendurable Saga of NOMbies at Court

    Maggie: Whoa! WHOA! Brian. I thought you could steer this thing?

    Brian: It wasn't me… there was something in the road.

    Maggie (sotto voce): $&%# that Louis for leaving us to drive our own bus!

    Cooper (laying in road): I guess it is true what they say about snakes and skidmarks!

    (I just had too Anonygrl… just for you!)

  • 106. AnonyGrl  |  June 13, 2011 at 1:02 pm


    Well, I DID leave Cooper lying in front of the bus when last we saw him…

  • 107. skepsisint  |  June 13, 2011 at 12:17 pm

    So – since Ware has performed SSM, how long before the Prop8ers insist that HIS ruling be vacated since he established prior bias? Seems that they intend to throw as many monkey-wrenches into the works as possible to delay the inevitable.

  • 108. JonT  |  June 13, 2011 at 12:39 pm

    That will depend on how Ware rules. If he rules against Cooper, then maybe… a month?


  • 109. Str8Grandmother  |  June 13, 2011 at 12:40 pm

    Well at least he wasn't going to give them any amo, he told them up front he had performed a same sex marriage so they had their chance to object and they didn't. Also humorous is the fact that Ware said he gave the tape to Walker at the seminar WARE put on. Cooper didn't object to that either.

  • 110. Joe  |  June 13, 2011 at 1:50 pm


  • 111. Joe  |  June 13, 2011 at 12:20 pm

    My cousin has been in a relationship for 23 years. They have three kids. They are not married. Therefore not all people in long-term relationships want to marry. Case closed.

    Can I get married now?

  • 112. Gregory  |  June 13, 2011 at 12:24 pm

    Brilliant coverage from today's hearing! Thanks so much for keeping vigil and updated as to the arguements presented!

  • 113. adambink  |  June 13, 2011 at 12:29 pm

    You're welcome, and I will pass that along to the team taking notes in the courtroom. Thank you's are always appreciated.

  • 114. DaveP  |  June 13, 2011 at 12:25 pm

    Ack!! within the past hour:

    First, the COMMENTS secrtion changed to a small window with a scroll bar and I lost the ability to REPLY or post a new comment. Nothing happened when I pressed a REPLY button or the SUBMIT button except an “ERROR ON PAGE” message at bottom left.

    So I just tried to “LOGIN” at upper right (which I don’t normally ever do) and now the comments are back to normal (a big screen full of comments) but now the REPLY buttons have all disappeared!

  • 115. ĶĭŗîļĺęΧҲΪ  |  June 13, 2011 at 12:33 pm

    Well, that was fun.
    Anticipating judge's ruling now, and something tells me we all already know how he is going to rule.
    Next stop (hopefully): releasing the tapes into public domain and broadcasting the whole thing over the summer on C-SPAN and MSNBC 😀

  • 116. Kathlene  |  June 13, 2011 at 12:39 pm

    Delicious schadenfreude.

  • 117. JonT  |  June 13, 2011 at 12:43 pm

    Yummy! 🙂

  • 118. Jacob  |  June 13, 2011 at 1:21 pm

    When will we know if they can be released for public viewing?

  • 119. Maggie4NoH8  |  June 13, 2011 at 12:47 pm

    @41 – Craig…

    “Wish Maggie were there to see it in person!”

    Uh… maybe there is no place to prop her feet up?

  • 120. Andrew_SEA  |  June 13, 2011 at 12:48 pm

    I do hope we are allowed to release the tapes publically… It would go a long way to show the true intentions of the backers of the Prop 8.

    One thing I hope it will also show: The attempted act at legislating morality.

    In a country where we pride ourselves on personal freedoms and liberties not shared with other countries in the world, we have a group of people using their expressed religious freedom and tax exempt status to deny other citizens within a minority their birthright as listed in our Constitution.

    I hope it brings to light exactly how dangerous this is if given to *any* majority. Without a check and balance, human beings can be so mean spirited towards each other for whatever justification they can come up with.

    In this case – a faith based belief system over rule of law.

  • 121. James Sweet  |  June 13, 2011 at 12:48 pm

    Interesting, it sounds like it may not have been open and shut if there were clear evidence that Walker wanted to marry. (And FWIW I've said before the plaintiffs might almost have half a point if that had clearly been the case — though I still think recusal would have set a dangerous precedent, and vacating the decision even more so, but at least then the contention that Walker had a conflict of interest wouldn't be completely insane)

    It's telling that Ware spent more time discussing that scenario with Boutrous than he did the actual scenario — to me that indicates that Ware's already pretty decided on this one.

    Not that we didn't see that coming…

  • 122. Joe  |  June 13, 2011 at 1:47 pm

    He made it clear he's obviously spent a lot of time deliberating on the issue already. I'm sure he just wanted to hear the arguments (major fail on the Prop 8 side) and thus why he's so quick (24 hours) to make his decision.

  • 123. Sapphocrat  |  June 13, 2011 at 12:50 pm

    Rick & Arisha, just a quick — and BIG — thank you for all your hard work!

    This was indeed fun, btw!

  • 124. Str8Grandmother  |  June 13, 2011 at 12:50 pm

    The whole team has got live blogging down to a science, ya'll reminded me of a swat team, "Everybody in position…, ready,… set…." It was really good, great even. I panicked a little when the server went down but you brought it back up pretty quick.

  • 125. Straight 4 Equality  |  June 13, 2011 at 12:50 pm

    Will the entire transcript for today's hearing be posted somewhere? There must be an official site for court docs, but I don't know it.

  • 126. Joe  |  June 13, 2011 at 1:48 pm

    There will be, probably within 24 hours if not by tonight.

  • 127. AnonyGrl  |  June 13, 2011 at 12:54 pm

    My post hearing thoughts are these… if Ware rules in Cooper's favor, doesn't that open up the distinct possibility that from now on anyone who loses a case will do a major fishing expidition through the judge's entire life to look for things that they should have DENIED as being a concern BEFORE the case was heard?

    Also, once again, if it were a straight judge in a long term marriage, hearing a case about state divorce law, for instance, would we require that he publically avow before hand that he had never considered getting a divorce himself? Statistically, half of all marriages end in divorce, so the longer you have been married, by the logic Cooper seems to be using, the more likely you are to be considering divorce. NO? Well then why demand that a gay judge deny he ever considered marriage?

  • 128. Joe  |  June 13, 2011 at 5:07 pm

    Exactly. That's why a ruling in his Cooper's favor would have extremely chilling effects on the judicial system as a whole and IMHO makes it even more likely it won't pass muster.

  • 129. Rika  |  June 13, 2011 at 1:13 pm

    Unbelievable. Cooper just makes it up along the way. A ten year relationship=intent to marry=duty to disclose? Puleease!

  • 130. Sagesse  |  June 13, 2011 at 1:23 pm

    Ok, this is weird. I have not received a comment notification e-mail on this thread since 3:14 EDT… 12:14 Pacific?

  • 131. JonT  |  June 13, 2011 at 2:23 pm

    Me neither… Didn't even know people were still posting on this page until I did a refresh…

  • 132. Shannon  |  June 13, 2011 at 1:24 pm

    I can't believe the Prop 8 legal team is so dumb or unprepared, but it certainly seems that way from reading these transcripts. It's like they think their arguments and logic are so common sense, so OBVIOUSLY correct that they don't even anticipate being challenged or asked for proof of anything.

  • 133. Joe  |  June 13, 2011 at 2:07 pm

    To them, they're logical. But yeah, trying convincing a judge of that. "It is because it is" is not a valid defense!

  • 134. AnonyGrl  |  June 13, 2011 at 1:37 pm

    Time for another installment in our ongoing series "That Darned Bus!". Thanks to Felyx for this inspiration.

    The scene starts in blackness, and with a wonderful swirly, glittery effect resolves itself into an exaggerated, dream sequence court room. The judge is sitting high above Mr. Cooper, and is completely non-descript, his (or perhaps her) face is fuzzed out so we know nothing, not race, not sex, not anything. Cooper is tap dancing, naked (not that anyone wants to see that, so we do have the necessary figleaffing and glitter falling and such) trapped in a nightmare. He holds a video tape strategically in front of him and as he dances, he recites actual lines from his arguments today. When the Judge speaks, the voice is very neutral, we cannot tell anything more than we can by looking at the Judge.

  • 135. AnonyGrl  |  June 13, 2011 at 1:37 pm

    part 2

    Cooper: We approach court awkwardly and not desirous of situation. Decision must be by impartial tribunal….

    Judge: (pointing at Cooper's feet) You missed a step.

    Cooper starts the dance over again, and tries another line.

    Cooper: We have knowledge of one set of facts that common sense says that long term relationship … key point is that was never disclosed …

    Judge: (pointing at Cooper's feet) You missed a step.

  • 136. AnonyGrl  |  June 13, 2011 at 1:38 pm

    part 3

    Cooper starts over.

    Cooper:A reasonable person would not think a black or white judge would be unreasonable. Because they are not then reasonable.

    Judge: (pointing at Cooper's feet) You missed a step. And I think perhaps you should return that video tape.

    Cooper looks down at the tape he is using to cover himself. We see a look of panic on his face, then the scene snaps to Cooper, waking up suddenly, and finding himself lying on the pavement where we last saw him lie down in front of the bus. The bus is nowhere to be seen, but the tire tracks clearly indicate that Brian BACKED away and did not run over Cooper, merely abandoned him. Cooper, looking completely dejected, picks himself up and staggers off. As he goes, we hear the taps on his shoes making random clicky noises. Fade to black

  • 137. davep  |  June 13, 2011 at 10:07 pm

    In the words of Auntie Mame – "How Vivid!" : )

  • 138. Waxr  |  June 13, 2011 at 1:44 pm

    Cooper: "But true that marriage has financial benefits that flow to it for those who participate in marriage."

    That admission from Cooper blows their whole case. It will be quoted in numerous newspapers covering the case. It's to bad Judge Ware didn't ask Cooper to enumerate those benefits.

  • 139. Joe  |  June 13, 2011 at 2:06 pm

    Specifically benefits that cannot be gained by domestic partnerships.

  • 140. Shannon  |  June 13, 2011 at 3:54 pm

    Actually, I'm a little confounded on this "marriage has financial benefits" argument. As things are today in California, with domestic partnerships being virtually equivalent to marriage as far as state government is concerned, what additional financial benefit comes with marriage? My husband and I were married in 2008, and I don't know of any new financial benefits that came with it that we didn't have as DPs. As long as DOMA prevents any federal recognition of our union, I don't see the financial benefits. Am I forgetting something?
    Not that there aren't many benefits of being married, I'm just trying to figure out what these "financial benefits" are that Cooper is referring to.

  • 141. Joe  |  June 13, 2011 at 5:06 pm

    The primary benefits are federal and transferable. When you leave California, unless there's a specific law recognizing DPs in other states, you're strangers under the law. Also no benefits at the federal level, although in CA you can register for community property (which makes your taxes immensely more complicated, but still).

  • 142. Shannon  |  June 13, 2011 at 7:42 pm

    But these benefits are not yet federal, and only transferable to a handful of states. We've still got DOMA and constitutional amendments in many states to knock down before marriage = marriage.

  • 143. Steve  |  June 13, 2011 at 6:01 pm

    Not all companies and institutions recognize DPs and CUs. It's mostly bigger ones that offer DP benefits. There was plenty of evidence for that problem in New Jersey

  • 144. John D  |  June 13, 2011 at 2:27 pm

    Let me channel the Prop 8 side (in other words, what follows is snark):

    But shouldn't Judge Ware have recused himself? After all, as a male Federal judge with a last name beginning with W, how could he not be expected to be biased in favor of another male Federal judge with a last name beginning with W?

    No, no, the only fair thing would be to put Maggie Gallagher on the bench for this one. She'd clearly give a fair and impartial decision.

  • 145. Carol  |  June 13, 2011 at 2:31 pm

    Rick and Arisha, THANK YOU for conveying the hearing and contributing to a wonderful morning!

    Carol (an ally)

  • 146. Elizabeth Oakes  |  June 13, 2011 at 3:04 pm

    I'd like to echo the thanks to the P8TT Liveblog crew. I couldn't read it in real time, but am grateful to have the record of it now.

    I'd also like to thank Judge Ware for acknowledging how important it is to rule quickly–the wait time creates so much anxiety, and on this particular issue a swift ruling will also speak to how obviously specious this gay-judge-bashing attempt was.

    And oh, how I wish what Cooper said about long-term couples all intending to get married was true! I'd be so rich right now. 😉

  • 147. Craig  |  June 13, 2011 at 3:17 pm


    I don't really think it's because Cooper and company are really "dumb" or "unprepared" — the truth is that, other than prejudice, there is no basis for their cause. There IS no defense. That was made abundantly clear during the initial trial — I mean, when your own witnesses, under oath, start agreeing with the opposition when pinned down on facts, there's not much you can do.

    What would Bois and company have done if they were on the other side? (Answer: they would have never taken a case they knew they could not win); Cooper likely really believes in the morality of his position and is dedicated to do whatever he can to further a cause that is so important to him (well besides, I'm sure he's getting a nice paycheck for all his trouble). But there's no secret magic formula for manufacturing a case where there is none. Cooper has no choice but to go after desperate moves, because nothing can stand up to Walker's brilliant ruling. I don't know any attorney anywhere who could manufacture this particular case any better than Cooper and Company have done — it's just that – well, there is no basis in law for arbitrary discrimination. His only weapon was the vast assumption that EVERYONE KNOWS gay marriage is just "wrong;" but apparently his assumption is turning out not quite to be correct.

    The only "dumb" thing Cooper is doing is widening the possible scope of an eventual ruling through appeals to higher and higher courts. But look at it from their view: everyone knows the country is tilting toward full equality for GLBT people. And it's happening very quickly. What can they do? Admit defeat now and let gays marry right away, or at the very least, drag it on as long as they can, oppressing gays as long as possible, and praying for some vast "miracle" that their god will zap us back into our closets. Short of praying for "divine" intervention, there's not much else they can do other than create as many delay tactics as possible.

    No, Cooper's not dumb. He could have faced reality and advised his clients to drop their appeal; but he would have cut off his own payroll if he did that; this way, he gets a lot more of their money, and, win or lose, he gets to be their hero. I hope they keep appealing until the US Supreme Court mandates federal gay marriage nation-wide. THEN they'll have something to gnash their teeth over! 🙂

  • 148. Joe  |  June 13, 2011 at 3:50 pm

    You are exactly right. Cooper is a lawyer, and he is interested more in the money he can make than the case itself. I have 2 friends that are lawyers, and they remind that they are businessmen like anybody else. The longer Cooper can draw this out, the more money he will make from it. Whether he wins or loses, this is the best advertising he can ever get. He will (and prolly already does) have clients crawling out of the woodwork.

  • 149. Joe  |  June 13, 2011 at 5:02 pm

    Hopefully draining them of all the money they can in the process.

    (a different "Joe")

  • 150. Steve  |  June 13, 2011 at 6:02 pm

    Boise himself admitted that he would have a hard time making a case if he were in the other side

  • 151. JayJonson  |  June 13, 2011 at 3:32 pm

    Craig wrote: "But look at it from their view: everyone knows the country is tilting toward full equality for GLBT people. And it's happening very quickly."

    Not quickly enough. And the delays in this case, especially while a stay is in effect, are outrageous.

  • 152. torque  |  June 13, 2011 at 4:23 pm

    Great coverage, thank you to the P8TT team as always! Can't wait to hear the results!

  • 153. Ann S.  |  June 13, 2011 at 4:38 pm


  • 154. Sam in SF  |  June 13, 2011 at 6:21 pm

    I love it that Cooper actually said that it is normal to assume that any person in a long term relationship would want to get married. Throughout this trial the opposing side has done an excellent job of making our case for us. I hope that those words are used against them in a later trial if they can!!!

  • 155. Sagesse  |  June 13, 2011 at 7:19 pm

    I thought it was either scary or funny that, when asked if all long term relationships lead to marriage, the only alternative he could think of was a platonic relationship. Right. Marriage or celibacy…. there are other options?

  • 156. Elizabeth Oakes  |  June 13, 2011 at 8:12 pm

    Well, NO ONE THEY KNOW has ever had pre-marital sex…RIGHT, MAGGIE???

  • 157. Elizabeth Oakes  |  June 13, 2011 at 8:15 pm

    …because NO ONE THEY KNOW has ever had premarital sex….RIGHT, MAGGIE???

  • 158. Sagesse  |  June 13, 2011 at 7:17 pm

    Live blog from the San Jose Mercury

    Proposition 8 case: Court packed for hearing on same-sex marriage judge

  • 159. Sagesse  |  June 13, 2011 at 7:34 pm

    Mobius logic. Cooper says Judge Walker did not have to disclose he is gay. But he should have disclosed he is gay and in a long term relationship. Which means he would have had to disclose he is gay… and in a long term relationship.

  • 160. Elizabeth Oakes  |  June 14, 2011 at 8:59 am

    Putting the "logic" back into "tautological," I guess.

  • 161. Str8Grandmother  |  June 13, 2011 at 9:44 pm

    Technical Legal question- Will Judge Ware just issue a written decision or will he call the lawyers back in Court and tell them himself. If the answer is that he will call them into Court and tell them then can someone from Courage call the Judges office and ask to be notified so that Rick and Arisha can be there also? He said he might issue his decision within 24 hours.

  • 162. Ann S.  |  June 13, 2011 at 9:48 pm

    It will be a written decision and will be posted on the court website. I'm sure it will be linked here shortly after it's posted.

  • 163. Str8Grandmother  |  June 13, 2011 at 9:46 pm

    I lost my train of events. When is the Court Hearing on if the Trial Tapes can be made public? Today's hearing was on if the lawyers can keep copies of the tapes, but when is the hearing for if the public can see them?

  • 164. Joe  |  June 14, 2011 at 11:14 am

    They have put them on retainer for appeal. I believe once it works its way through the courts that they could be released, but only after all appeals are done.

  • 165. David R Worthington  |  June 14, 2011 at 1:22 am

    In the fairly brief discussion over whether Judge Walker might want to get married, why did no one bring up the fact that IF he had really wanted to he could have done so during the not-that-brief window after it was legalized, but before Prop 8?

    And if, perhaps, he might not have wanted to at that time because he was still on the bench, why did no one bring up the fact that ALL the legal and financial benefits of marriage have accrued to those in domestic partnerships in California since the legislature made it the same as marriage in all but name in January 2007?

    And if the legal rights and responsibilities of marriage from registering a California Domestic Partnership aren't good enough, because he really wants the term "marriage" too, then all he has to do is go to Canada or any of the US States, plus the District of Columbia, that allow it, to get married there, whereupon he would have the legal rights, responsibilities, and name as well (albeit from two sources).

    Given all these possibilities, if Judge Walker isn't married or in a Domestic Partnership now, it must be because he doesn't want to, or see the need at present.

  • 166. Rob Tisinai  |  June 14, 2011 at 8:04 am

    Ah, but you've forgotten that gay activists are eeeevil, evil people always plotting several steps ahead. See, Walker knew that if he married then the other side would have had a much stronger argument for recusing him from the case. Thus, he remained unmarried in the off chance that he should be assigned the case and be free to overturn the will of the people! It's simple, really.

    No, I haven't seen any of our opponents say that. But it would fall on the milder end of their paranoia spectrum.

  • 167. Elizabeth Oakes  |  June 14, 2011 at 8:56 am

    …and the fact that he didn't get married shows that he KNEW he would get the case in June-November 2008 before it was even filed, and that PROVES he is an evil gay psychic demon wizard. Always dapper, though.

  • 168. AnonyGrl  |  June 14, 2011 at 9:11 am

    He is dapper, isn't he? 🙂 I sure hope he reads this site and knows how much we think of him. I would love to think that once in a while, he runs across a comment like yours and it makes him smile as much as it makes me smile!

  • 169. Rob Tisinai  |  June 14, 2011 at 8:00 am

    When and where will the official transcript of the hearing be available?

  • 170. Jeff Tabaco  |  June 14, 2011 at 11:25 am

    The hearing transcript is now available, via AFER:

  • 171. Rob Tisinai  |  June 14, 2011 at 2:21 pm


  • 172. Prop 8 Proceedings Left a&hellip  |  June 14, 2011 at 3:33 pm

    […] to make it to the courthouse like I had hoped to cover the hearings today, but thanks to both Arisha and Rick at P8TT and the good folks on the AFER twitter feed, I was able to keep pretty good tabs on the argument. […]

  • 173. Maxim Women  |  September 23, 2011 at 12:17 pm

    Great recap of the trial. Very informative

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