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Yesterday’s Proceedings Left a Stench in the Air

Prop 8 trial Trial analysis

Please welcome frequent P8TT legal analyst Brian Leubitz of for some thoughts on yesterday’s hearings -Adam

By Brian Leubitz

I suppose I shouldn’t be surprised by anything in the Prop 8 trial anymore, but to be honest, I really thought that the attorneys for the proponents were better than this. No, I’m not imputing any skills to Andy Pugno other than self-aggrandizement, but despite their backward ideals, some of the attorneys on the pro-8 team weren’t all that bad. Sure, they were given a pretty bad case and told to make some lemonade out of rotten lemons, but the lemonade was only half as rancid as it could have been.

I was unable to make it to the courthouse like I had hoped to yesterday, 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. And as I was reading them, on both the video and the motion to vacate, one idea came to mind:

Hail Mary.

Before the hearing yesterday, if you asked most any attorney of note, bringing up the old “he’s gay!” argument was something of a sign of discomfort with the way they put on the original case. Pugno and friends essentially acknowledged that perhaps they could have done it better.

If you look at it legally, they still have a lot of appellate options remaining. And much of the case boils down to “questions of law” to which appellate courts review de novo, that is they look at them completely fresh. Judge Walker’s determinations are essentially given no deference there. However, Judge Walker also listed a slew of “findings of fact.” These are not reviewed fresh, but are only overturned if they are “clearly erroneous.” (I’ll leave the question about whether those are really findings of fact for another day.)

So, if you take that his findings of fact are really that, then sure, you’d really, really want a new trial. But there are several very important questions of law that much of the case turns upon in Judge Walker’s decision. Those are reviewed fresh, and Team Prop 8 doesn’t seem to like their hand on that one.

So, they brought this motion to vacate, hoping to get a do-over for that rancid lemonade they made last year. Who knows what their rationale was, but it all stunk of desperation.

Judge Ware’s questioning cut right to the heart of the issue. What is a judge really obligated to disclose, and what are they allowed to take upon themselves to determine their own bias (or lack thereof)? Judge Ware brought up a series of hypotheticals that really put the lie to the Prop 8 team’s argument. I’ll let you go back to the live-blogging yesterday morning to catch those, but suffice it to say, Mr. Cooper was not in an enviable position.

Surely the Prop 8 attorneys thought this through enough to figure out that this wasn’t going anywhere. After all, vacating that decision would have had profound impacts on cases going far beyond the issue of LGBT rights. It was, at best, a long shot. But perhaps a long shot with rewards that were worth the risk for them.

In theory, perception shouldn’t really make a difference in a legal proceeding. That is extraneous, and shouldn’t be taken into account by the jurists reviewing the case. And I have confidence in our judiciary that it won’t be. But, I’m pretty sure if you were able to ask the participants in the Scopes Monkey Trial if perception matters, you would get a very different response. In cases of historical import, perception matters, and I can’t imagine that yesterday did anything for those who wish to hold back the arc of history as it wends its way toward justice.


  • 1. AnonyGrl  |  June 14, 2011 at 6:19 am

    On a purely mercenary note, does it do Cooper et al any good at all to come off looking like such an idiot? As Hail Mary's go, this one was incredibly weak and unsupported by anything at all, and had all the obvious earmarks of bigotry written all over it. It is unlikely to make any judge Cooper ever appears in front of again sympathetic, and it leaves Cooper smelling like he stepped in it. How will this reflect on him or his firm in the eyes of future clients?

    Yes, sometimes lawyers lose, but one that presents this poor a case, in such a public way, certainly is doing himself no favors when looking for the next job.

  • 2. MFargo  |  June 14, 2011 at 6:25 am

    I've always felt like they knew this going in, and that's the reason they didn't want it televised and why they want the tapes buried. I can't say I ever felt sorry for them, but I certainly felt embarrassed for them.

  • 3. MFargo  |  June 14, 2011 at 6:22 am

    "In cases of historical import, perception matters, and I can’t imagine that yesterday did anything for those who wish to hold back the arc of history as it wends its way toward justice."

    That's some fine writing, Mr. Leubitz.

  • 4. AndyM  |  June 14, 2011 at 8:30 am

    The beautiful analogy of the arc of history bending toward justice is from MLK.

  • 5. Str8Grandmother  |  June 14, 2011 at 9:58 am

    Agreed, that was the line that stuck with me when I finished reading the article. Immediately I connected the reference to MLK Jr.

  • 6. Phil L  |  June 14, 2011 at 6:34 am

    I remain cautiously optimistic about this. It sounded like Judge Ware wasn't really buying what Cooper was trying to sell, but I'll be more convinced once his ruling is made.

    One thing that stood out to me was that he seemed to imply that any other judge would have come to the same conclusion (as Walker, it would seem.) If that's the case it sounds like he's ready to let Walker's ruling stand already.

  • 7. Kate  |  June 14, 2011 at 7:49 am

    I, too, think that "any other judge" part could be a wonderful taste of the future for us……….. reading between those lines is a real treat.

  • 8. juliecason  |  June 14, 2011 at 10:15 am

    Yes, but there was that gasp moment when Judge Ware asked Ted B. why not just re-try the case with a new judge? What would the harm be? Now, I know this was one of his many hypotheticals, but it sure made me swallow hard…. And I know why Ted answered that hypothetical the way he did (that it'd be terrifically harmful to the entire judicial system), but I sure wish he'd also have added about the harm to real people's lives by prolonging the proceedings for years.

  • 9. LCH  |  June 14, 2011 at 6:56 am


  • 10. Ann S.  |  June 14, 2011 at 7:25 am


  • 11. Kate  |  June 14, 2011 at 7:30 am

    Counting down the few remaining hours until the 24 hours Judge Ware estimated are up……. I was initially hoping for a bench ruling, but I think I like a written one better. (Well, as long as it's in our favor, of course.) It seems a good opportunity to expose some more of the proponents' shenanigans to the bright sunlight.

  • 12. Ann S.  |  June 14, 2011 at 7:53 am

    Kate, do remember that it was just an estimate — I wouldn't be surprised if it took longer, although I hope it will be sooner.

  • 13. _BK_  |  June 14, 2011 at 8:13 am

    I, too, can hardly wait for his decision. I had a great time reading the updates by the P8TT team. The ruling will (hopefully) be a cherry on the top of a good read. One thing surprised me–Cooper was so… well… lame! All the better for equality, though.

  • 14. Carol  |  June 14, 2011 at 10:35 am

    To me, 24 hours implies the opinion is already written and just needs tweaking.

  • 15. Alan E.  |  June 14, 2011 at 7:56 am

    Boustros even called it a Hail Mary in court. But the real star was Theres Stuart (spelling?). She came in and filled in many of the potholes to make it all one smooth argument. I really wish you could see Cooper in court, but if you watched the arguments before the 9th Circuit, then you have an idea. Out in the hallway before anything began, Cooper and his team passed all of those waiting in line to deafening silence. All conversations came to a halt, but it was better nothing was said instead of what we really wanted to do.

    Lunch was great with Rick, his team, and some of our fellow Trackers. Thanks again! I had fun!

    Lastly, is Sheryl Carver ok? Anyone heard from her?

  • 16. Kate  |  June 14, 2011 at 8:10 am

    She's OK — I heard from her after she got home from your lunch. I am so jealous! I wanted to be there with y'all.

  • 17. Sheryl Carver  |  June 14, 2011 at 9:47 am

    Yes, I'm OK, Alan, thanks for asking.

    Not sure why you thought I might not be, though. Did I look green after lunch or something? 🙂 If I did, it was only because I stuffed myself on the soup – very tasty!

    It was great to meet you & so many other P8TTers! And now our iPhone comments appear on regular computers.

  • 18. Sheryl Carver  |  June 14, 2011 at 9:51 am

    My first reply seems to have gone to moderation. Thought I was still logged in, but apparently not.

    So, yes, I'm OK, Alan. (Assuming the first comment will show up soon.)

  • 19. jpmassar  |  June 14, 2011 at 7:59 am

    DOMA declared unconstitutional vis a vis bankruptcy proceedings

    US Bankruptcy Court, Central District of California

  • 20. Andrew_SEA  |  June 14, 2011 at 8:05 am

    I think that the Pro-Prop8 team is doing anything and everything to delay the inevitable. They know their case does not have any legal standing, yet wasting tax payers monies by bringing this trash to court is yet another bump in the road to delay what they know will come true eventually.

    In thinking about it, since same sex marriage entails a large list of rights – most arguably and agreed upon financial rights of married couples, I would like to see the same sex couples in the state of California mount a class action suit against the people/groups that proposed Prop 8 for damages in the form of financial gains and rights due to their willful intent to prevent said couples from enjoying their rights as equal citizens of the state of California.

    It’s one thing to be on the defensive and to continually fight for just the basics of equality – yet it is another to go on the offensive and actually ask these individuals to be responsible for the hurt and financial injury they have intentionally placed upon LGBT couples in the state.

    A clear message should be sent to them and their financial backers that there is a financial cost to denying people their equal rights and to with full intent, attempt to destroy the lives of LGBT couples whom wish to exercise their right of marriage and all of the state and federal benefits that come with such rights.

  • 21. Bob  |  June 14, 2011 at 9:17 am

    you all did a wonderful job,,, live blogging from the court,,,,, thanks so much for allowing everyone,,, to take it in,,,, especially love that Ware gave Walker the tapes,,,,, and that Ware,officiated at a SSM,,,,, and the reference to (any other Judge) and so much more,,,,, it's an indication that society has already progressed beyond the narrow minded thinking of our opponents,,,,,and a confirmation that LGBT people are living their lives as equals, in spite of ignorance surrounding us……. p.s. was Kathleen at the lunch,,, any pics????

  • 22. Ғĕłỹҳ  |  June 14, 2011 at 9:30 am

    And I quote… "perhap$ a long shot with reward$ that were worth the ri$k for them."

    I can't help but to think that the motivation is either money or religious fervor or both. If it is money, well I wouldn't think that this would be worth it. Reputation is worth more than money when you get to this level. As for fervor… the mention of 'deafening silence' reminded me of this kid in grade school who thought everyone should follow the rules. Problem was, he did not always have a clear handle of what the rules were and why we would be following them. He would try to push his way onto others and could help but to just piss everyone off. Later on in high school he was rather ostracized and ignored. Conversations would come to a halt in the hallways when he walked by. No one would talk to him for fear of getting into arguments or other conflicts. I wonder if the P8 team feels this way too. Maybe they think they are doing right and good and don't realize that they are viewed as noxious troublemakers who come off as ignorant and mean-spirited.

    All during the case I couldn't help but to find the humor in it all… but afterwards it all makes me feel very upset about the whole ugly affair.

    Sad. Just so very sad.

  • 23. Sagesse  |  June 14, 2011 at 9:32 am


  • 24. Sheryl Carver  |  June 14, 2011 at 9:55 am

    @ Adam:

    Not sure what's going on this morning.
    Thought I was still logged in (had checked the "Remember me" box), replied to Alan E, got the "awaiting moderation" message.
    Logged in, commented again, as Alan had asked if I was OK, got another "awaiting moderation."
    Not sure what will happen with this one.

    Anyone else having the same problem?

  • 25. MFargo  |  June 14, 2011 at 12:33 pm

    Yes. But my messages appear to post immediately.

  • 26. Sapphocrat  |  June 14, 2011 at 1:18 pm

    Same problem here (have I been bad?), and it's driving me crazy, because I want desperately to post this (and I'm not sure my first post about it got through), so…

    Motion to vacate DENIED (of course!):

  • 27. Kathleen  |  June 14, 2011 at 10:13 am

    Transcript of yesterday's hearing available at AFER

  • 28. Chris  |  June 14, 2011 at 10:55 am

    Finally, someone takes action against Boehner for violating Antideficiency Act. Great pithy quotes too:

  • 29. Sapphocrat  |  June 14, 2011 at 1:12 pm

    w00t! Hey, folks, look what just landed in my email inbox:

    The following transaction was received from entered on 6/14/2011 1:01 PM and filed on 6/14/2011
    Case Name: Perry et al v. Schwarzenegger et al
    Case Number:3:09-cv-02292-JW
    Document Number: 797

    Docket Text:
    ORDER DENYING DEFENDANT-INTERVENORS MOTION TO VACATE JUDGMENT by Judge James Ware denying [768] Motion to Vacate (jwlc1, COURT STAFF) (Filed on 6/14/2011)

    …and, right after that:

    Perry et al v. Schwarzenegger et al

    Challenge to "Proposition 8"

    Chief Judge James Ware
    United States District Court for the Northern District of California


    Docket #797

    ORDER DENYING DEFENDANT-INTERVENORS MOTION TO VACATE JUDGMENT by Judge James Ware denying 768 Motion to Vacate (jwlc1, COURT STAFF) (Filed on 6/14/2011) (Entered: 06/14/2011)


    A free copy of the PDF order:

  • 30. Keith  |  June 14, 2011 at 1:59 pm

    Brian, please stop using $10 words when a $5 word will work.

  • 31. Ronnie  |  June 14, 2011 at 2:12 pm

    Subscribing & sharing……

    Cyndi Lauper is a New Yorker who supports Marriage Equality……<3….Ronnie:

    [youtube YZuYiQw1ZXc youtube]

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