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Prop 8 trial: Live-blogging the 9th Circuit hearings on releasing the tapes and motion to dismiss

9th Circuit Court of Appeals Liveblogging Prop 8 trial

Updates will scroll from the top

By Adam Bink, Jacob Combs, Arisha Hatch and Rick Jacobs

5:05 (Jacob): And, with Charles Cooper’s histrionic closing, court is adjourned.  All arguments in the Perry case have now been made.  Next comes the ruling!  Thanks again to Rick Jacobs and Arisha Hatch for updating us throughout the hearings from the courtroom, and to KQED for providing the live stream of the event.  This thread will no longer update.  Be sure to check back here at throughout the evening and tomorrow for reactions to today’s hearings.  As always, if you see something of interest, send it our way!

5:00 (Rick): Cooper: Want more than two more minutes. Judge Reinhardt, you accurately did characterize our argument. In filing after filing, …repeats stuff about committed relationships.  Makes common sense point that a person in an enduring, committed relationship has, do you have an interest in getting married. It was plaintiffs who said 64% of committed gay relationships want to marry. That was their evidence. I’m glad counsel raised Alabama case.

No evidence that Judge Clemmons’ children wanted his children to go to these instiutions in the area.  Is it the plaintiffs’ position that he could have said that my kids want to go to one of those institutions in Montgomery that that would not matter?  That would be appalling.  There would be no problem for Judge Wlaker to sit on DADT even though he’s gay and minority. (COoper is really steamed!!!)

If Walker is ruling that he has constitutional right to marry, if this court says that’s just fine, this will be a signal and dark day in American jurisprudence.

R: Let’s hope however it comes out, it won’t be a dark day.


4:55 (Rick): TS: Ware said every person has same interest in constitutional rights.  Not just minorities. Frankly I think this advocacy of this motion sets a double standard. Shows one thing: all cases with black women rejected idea that that made them impartial.  Proponents can’t get it through their heads that gay people are not inferior. Cases are do not apply.

S:  Even if he held that upholding Prop. 8 meant he could never marry?

TS: Yes.  No indication he was unfair.  This court has to presume that.

R:  Nothing to do with stereotypes. Presumption is that gays like heteros wants to get married.

TS:  Every person may want to get married.

R:  This is not argument that all gays are recused because they are gay. (We love Terry!!)

TS:  Awfully close.  Gay people all want to see a law like Prop. 8 overturned. No evidence here of immediate interest by Walker.

4:53 (Jacob): Cooper is back up for two minutes.

4:50 (Rick): B:  Even if court rejects everything I say as matter of law. It is still case that Ware looked at it all and determined no reasonable case for suspecting Walker’s impartiality.

T Stewart:  If proponents’ views were correct about disclosure, a woman judge of child bearing age re: abortion would have to disclaim use of abortion.

R:  Mr. Cooper is trying to make an argument, not sure how successfully, that a woman on brink of abortion is in different circumstance than general.

TS: Let me step back.  This argument hearkens back to conduct to of gay people.

H:  I don’t hear him say that.

R:  You are making an argument that Cooper is trying to disavow. This does not apply to every gay person.  It’s when you apply to a particularlized person who wants to get married the next day is different.

TS: Yes, but does not work. Heteros meet and get married in months or wait years.

R:  True.  He would be saying that every heterosexual is saying one day he might want to get married.  This is different because Walker might want to get married next day.

TS: Yes, but turns presumption on head that judges are presumed not to be impartial unless proven otherwise.

R:  Now we get to real argument.  Burden is on judge to disclose.

TS:  Yes, but in case judge did not have to disclaim that his kids never wanted to go to university (in case).  Courts do not impose this on judges to disclose possible interest.  Reference to Catholic judge who speaks out against abortion. Noonan said could not put that sort of qualification on judge.

4:42 (Jacob): “Well Mr. Cooper is trying to make an argument, and I don’t know how successfully…”  Ouch.  Therese Stewart is back up.

4:41 (Rick): B: I see no authority that someone has obligation to say they have obligation to exercise right in question.

R:  Is it relevant to right of public to know?

B: No. Let’s assume there is an obligation to disclose an intent to get married.  Judge Walker is not in any way required to disclose a non-intent to get married. Creates pernicious effect that would create intolerable double standard for minority judges.  A heterosexual (majority) judge does not have obligation to come forward to tell about views?  If not, what you are doing by rule Mr. Cooper advocates creating a double standard. Goes right in face of cases that show that minority judges are presumed impartial.

4:39 (Rick): B: Demographics of exhibits they put in show that Walker not more likely to get married than any other gay person wants to marry. They are factually wrong even if they are right about law, which they are not.

R:  Mr. Cooper said that we don’t take position that just because judge is gay or may want to get married, we have to look at length of relationship as indicator to marry. Eight years may make you less likely to want to marry (Laughter).

He says if you are together with someone for a long time, takes you out of the general class of people who want to marry.  Cooper says does not matter that he’s gay.  He says 8 years is a plus, some would not. You are saying no matter what would not require recusal.  Is there anything to Mr. Cooper’s argument that there is a specific relationship judge should have told us about?

B:  Just conjecture and speculation. Simply no evidence that because of that relationship, he’d want to get married more than another gay person.

4:36 (Jacob): Reinhardt jokes that being in an 8-year relationship might make someone less likely to be interested in marriage, prompting laughter in the courtroom.

4:34 (Rick): B:  The majority typically defends exclusion because it is based on tradition, religion. All used to exclude African Americans.  Used to exclude gays from institution of marriage.  Defendants argue that since many members of the minority want access to marriage, must disqualify unless they have no interest in marriage.  Consider how disruptive and corrosive if every majority judge were required to disclose any interest and then meant that judge might not be able to rule impartially.  Consider how impossible it is to have majority judge who does not want to change status quo does not have to recuse, but minority who does want to change status quo.  The law is that judges don’t have to do that. But even if it’s not the law, the facts of this case, Ware examined legal principles, law and concluded that no basis to question impartiality of Walker.

And what do we have from defendants?  They say he’s in committed relationship. He cites that 64% of gay coulpes want to marry. Says nothing about length of relationship being indicator of desire for marriage. Says nothing about whether they want to marry. They conclude that even though many gay people want to get married he would not have to disclose that he’s gay even though many gay people want to marry.

4:30 (Arisha): The judges are sitting stone-faced, not interrupting Boies.  This is the longest an attorney has been allowed to speak without being interrupted today.

4:28 (Rick): Boies:  In all cases cited by either party for conflict/recusal when Judge says things about case outside of court, judge had fiduciary conflict.  Judge’s clerks involved. None of these is present here. The other side comes up with a new idea that because a minority might be impacted, the judge is in conflict. The law is the opposite. In class action, even when judge or family part of class, not sufficient to recue.

R:  Your position is that if Walker had disclosed that he wanted to get married after trial, he would not have to recuse.

Boies:  That is the law, Your Honors.  (Cites law.)  There is no authority that judge had to disclose something not a basis for recusal.  If he had no interest in getting married, he did not have to say that. We believe the law is that even if he did want to marry, did not have to disclose.

Smith: My reading of law is that judge reviewing case has to look at law.

B: Yes, your honor. That’s why courts defer to district court. Defendant claims that this is not targeted at minorities.  CC said that even judge who supports institution of marriage, not just his marriage, need not disclosed.  5th Circuit says that for every claim is counterclaim. The defendants argue that gay marriage so threatens the institution of marriage that they must be denied access to the institution. By the defendants’ logic, any straight judge with such a view would have to recuse.  Only people who can judge here according to them is gay or straight judge who does not have an interest in marriage.

4:26 (Jacob): As many in the Twitterverse are commenting on, does Cooper’s argument that a straight judge has no concrete interest in a gay marriage case shoot his previous arguments on the merits in the foot?

4:21 (Rick): H:  Did Ware make factual finding about whether he had to disclose?

CC:  Finding of law.

Smith:  That’s your position, but he did make a finding.  What about a heterosexual judge who said that he found that he wanted to maintain definition of marriage. Would he have to dislclose that?

CC:  We have always maintained that outcome on any one marriage not affected.

Smith:  What about a single heterosexual man?

CC: Not a big enough interest.

R:  If I said to you after today that marriage is worthless and is now looked at negatively rather than positively that won’t have impact on those of us who are

CC:  That would be the outcome of Walker’s ruling, but disavow that it would negatively affect marriage. Have not even said Walker’s ruling would immediately effect marriage. Would get there eventually.  A gay judge who wants to marry is affected.

R:  We’ll give two minutes for rebuttal.

4:20 (Jacob): David Boies is up for our side now.

4:18 (Arisha): Reinhardt: If he had said that he did not have an interest in marriage, then he must remove himself anyway?

Cooper: He could’ve said I’m in this 10 year same-sex relationship, but I have no interest in marriage.   This case wouldn’t be here if that happened.

Smith: Would that be a reasonable basis for disqualification?

Cooper: That is not our argument – if he disavowed an interest in marriage – then we would not have tried to disqualify him. [commentary: Does anybody else find this difficult to believe?]

Smith: What if a married heterosexual judge desires to maintain the definition of marriage as between a man and woman, would he be required to disclose that?

Cooper: We have disclaimed since the beginning that individual marriages will not be harmed by same-sex marriage. [WHAT?]

4:15 (Arisha): Judge Reinhardt: “it’s a perfectly normal thing to want to get married.”

4:15 (Jacob): KQED’s livestream is up and running again.

4:13 (Adam): A good point by Judge Hawkins, who points out that Walker did not marry during the window in 2008 when he could have.

4:09 (Rick): R:  What would reasonable person look at? All facts other than the one not known which is whether he wanted to get married?

CC:  Requires that the judge disclose all relevant facts.

H: Rule says all facts have to be disclosed.  Rule also says that someone not knowing if judge was impartial must determine whether appropriate disclosure made. Ware made it. Said he disclosed.

CC:  All facts known privately to judge must be disclosed.

H:  Who determines that?  Not appellate court. It’s not here on appeal.

CC:  Indisputable that he must disclose if he wanted to marry his partner.

R: Why does he have to disclose if he did not have interest?

CC: All other facts strongly suggest to a reasonable person in possession of all facts that had a reaonslabe interest in marrying partner. Had he disclosed facts at time of retirement.

R:  You would have examined him on that question?

CC:  Yes.

R: In what proceeding what he have been asked that question?

CC:  All facts must be disclosed. If he had disclosed his ten year relationship, putting him very nearly in shoes of plaintiffs, he had to disclose.

S:  What do we make of fact that he did not get married in interregnum period when he could have gotten married?

CC:  No more do we make of the fact that he did not than the fact that plaintiffs did not. Certainly not inconsistent as it is not inconsistent with plaintiffs.

S:  Had he gotten married, woud he have have been required to disclose?  Looking for yes or no.

CC: Yes.

4:07 (Jacob): KQED tweets live connection is back up but “iffy.”  I can’t access it yet.

4:05 (Rick): CC:  Consistent with 455 whether or not reasonable conclusion that judge’s impartiality might be questioned.

H: You cite Bybee case which never was tried.  Cases say abuse of discretion.  What is it that could have been abused?  It isn’t a de novo review of lack of facts.  Not de novo to apply law.

CC: Holland case good to apply.

H: We don’t have Holland in front of us.  Only thing that happened in Holland was  that appellants had to make argument to circuit themselves.

(Cooper is really looking bad. Bad.  He does this over and over. He just keeps repeating himself).

H: Ware reviewed and said he did not think Walker should have recused self.

4:03 (Arisha): Smith: Judge Ware doesn’t know whether the Judge is actually impartial and he decides, as a matter of fact, that there are no reasons to question the impartiality on the basis of the circumstances I have before me.  What case do you have that says that the application of the law to the facts is de novo review? It’s a question of fact.

Cooper: We submit to you that Judge Ware abused his discretion.

Smith: So what he (Ware) did was illogical, implausible and had no support in the record? […] It isn’t an abuse to apply law to facts? It isn’t a de novo review to determine what the facts are.  And Ware applied the law you offered.   Where is the abuse?

4:00 (Rick): CC:  Well, he could have been in this position of the plaintiffs.

H:  I’ve read your briefs.  What standard of review would I use for Judge Ware’s ruling?

CC:  Law.

H: They’d have to be illogical, implausible or without support.

CC:  Yes (sheepishly).

H:  Had this case come directly to us, we’d have had plain error review, but we did not do that.  We sent it back to the good judge.  What is the correct legal rule that Judge Ware did not apply?

CC:  He did not apply correctly the test under 455?

H:  That does not mean anything to me. What law did he not apply correctly?

CC: He did not apply the objective test?

H: What did have to do to apply the objective test?

CC:  Has to apply facts that were known and key facts not known as not disclosed by Walker.

H:  “Not knowing whether or not a judge is impartial might want to see if he’s impartial.” Ware then says I cannot reasonably see that there is any lack or partiality. Why should I apply this? (Judge is pissed.)

3:58 (Arisha): S: Do we have anything in this record, any evidence that Walker desired to marry? You all talk about if he desired, but I saw nothing that said he desired.

Cooper: We don’t have any direct evidence.

Smith seems frustrated with Cooper.

3:55 (Rick): Oh, good. Mr. Cooper.

CC:  In filing after filing, plaintiffs have said that they are in long-term serious relationships.  In May of 2009, when Judge Walker read allegations of complaint, he knew something the litigants did not know. He knew that he too was a gay resident of California in a serious relationship. It was 8 years, same as Zarillo and Katami. Walker made clear decision not to disclose. In interviews, when asked about orientation and how it might affect, he declined to comment.  He kept quiet for two years of case and then after retiring from bench, he disclosed to a group of reporters that he was in a committed relationship for at that time 10 years.

H: So a married judge could not hear a divorce?

CC: (Stumbles…)

H:  Would he have to disclose that he was married for 28 years and had some difficulties? (Laughter) That’s what you are arguing here.

3:49 (Jacob): Court is back in session.  Now onto the motion to vacate Judge Walker’s ruling.  Charles Cooper is arguing for the proponents.

3:46 (Jacob): We’re in a 10 minute recess right now.  KQED’s Scott Shafer tweets that Judge Ware (whose decisions are under review) and his clerks are in the courtroom watching.  Apparently, KQED lost their internet in the courthouse, hence the loss of the livestream.  They’re working to get it back.

3:42 (Rick): So this does not look good. These tapes look like they are staying under seal.   But I’m guessing they are not vacating the judgment because Judge Walker is gay.   Also, next time, I’m eating before the trial!

3:41 (Adam): There will be a ten-minute recess, after which time we expect to hear arguments on whether to overturn Judge Ware’s ruling denying the motion that Judge Walker’s ruling should be dismissed because he’s gay. What did you think of the arguments for each side?

3:40 (Rick): DT:  Just because something in the record, as was President Clinton’s testimony in McDougal, still remained under seal.

3:39 (Jacob): KQED tweets they’re working to fix livestream problems.

3:38 (Rick): R:  What does the word “eliminated” mean?

TS:  Not word eliminated, but broadcast that matters.

Smith:  Not broadcast, but public broadcast.

TS:  Rule does not apply here.

R: Usually I agree with Judge K, but we have all disagreed at various times. Your time is up.


David Thompson:  We did not object because no reason.

R: What is effect of not objecting?

DT: We don’t think any talismanic or other significance to putting in record.

3:37 (Jacob): What this seems to boil down to for the judges is a question of whether or not releasing the tapes at this point would constitute a broadcast, which Walker specifically said would not occur.

3:35 (Rick): Therese Stewart:  Ware looked at record on this case. Did Walker make a commitment that these digital rcordings would never see light of day. Ware made clear that he made copiesavailable to parties.

R:  That was for same purpose.  To arrive at a decision.  Nothing secret in them.

TS: Yes, that’s right. Ware decided long after trial that there was no such commitment to keep it from public. Seal orders do not prevent parties form revisiting. Not reasonable to assume that because court placed under seal, can never revisit. Public interest is reason.  Not reasonable form of reliance to keep under seal.  He made a determination of reason he wanted to use it and put it in record.

R: Maybe you did not hear what Judge Smith said, which is that Walker said potential broadcast eliminated.

TS: Rule against broadcast talks about media coverage. Judge Kazinsky does not preclude use.

Smith:  Does Judge K’s letter established precedence?

TS:  Not precedence, but carries weight as policy.

Smith:  He’d be happy to hear that if he were here.

R:  Did Supreme Court overrule that letter?

TS:  There was dissent…

R:  It was a good dissent. I agree with it on merits and argument, but we have to go with majority.

3:34 (Jacob): Therese Stewart is up now, arguing for San Francisco. She’s arguing that tapes were never meant to be secret.

3:30 (Rick): TB:  Since we are also going to hear that people think the judge is biased because of his sexual orientation, all the more important to let this video come to light to see if he’s biased.

R:  I do not want to discourage you from this line, but I have a hard time seeing how this applies to this issue.  Was a promise broken? How does that impact judiciary?

TB:  He put in record. NO one objected.

H:  Walker said would be kept under strict seal.

TB:  Other copies existed.

H: Question for me is can lawyers rely upon promises made by trial judge that may cuse them to pursue a specific course of action. This happened all the time when I tried cases for 25 years.

TB:  There was specific oopportunity for them to object.  NO one objected. No one mentioned common law.

R: Why woud they say that?  If he said it was under seal why would you have to question that it’s under seal even if common law right of access?

TB: I don’t think he made such a strong promise.

R: The word of the court is supposed to mean something.

TB:  Difference btween what happened before and after is that there was a public trial. Ware looked at sealing order to see if harm. No harm.

S:  Potentila for public broadcast in this case has been eliminated.  He criticzed proponents saying I don’t know why you did nto bring witnesses forward. We have eliminated chance for public broadcast. Judge wrote this in his opinion.

TB:  The difference is that the public trial happened. Far greater harm if public trial testimony kept secret.

3:25 (Jacob): Interestingly, Burke (for the media coalition) tries to argue that the proponents’ challenge to Walker’s ruling because he’s gay makes an even more compelling argument for release of the tapes.  The judges didn’t even take a bite on that line.

3:23 (Arisha): Smith: How is this different from what a court reporter does, which is not a judicial record?

Olson: This is different because it has video and sound; there is no affidavit from any witness that says that the witness is intimidated or feared from the safety; there are scores of hours of the witnesses’ depositions available to the public that the proponents never objected to.  Starting with the presumption on the public’s right to access, there are no compelling reasons to limit access – the witnesses claim no actual harm.

Olson steps down with just under 14 minutes remaining on the clock so that an attorney (Thomas Burke) for the media coalition may make an argument in favor of release.  Olson did a great job of bringing the judge’s attention away from the discussion about the local rules, Walker’s assurances not to broadcast, back to the fact that there is no real threat of harm to the witnesses or the system.

3:22 (Rick): Smith:  Are these testimony similar to McDougal (Clinton) or are they evidence?

O:  Transcript.

Smith: HOW is this different from what court reporter does? She takes stenographic notes and records. The recording is not part of judicial record.

O:  There is no affidavit of any harm from any witness. No affidavit form any witness saying worried about safety.  No articulable evidence of any harm. NO conceivable way to show this is narrowly tailored. Principle witness, Blankenhorn, said not concerned about public safety. 95% of trial not their witnesses. Therefore, not narrowly tailored.  Witnesses might be concerned about safety, but no evidence.

3:19 (Rick): Judge Hawkins:  Supreme Court said stop the taping.

O:  I don’t think this violates the local rule to make video to review in chambers. Then he put in judicial record. No objection. Judge Ware asked if there was objection. Judge Ware asked if you were asking to remove from record. Thompson said no. The video itself was being created for a proper purose.

R: Suppose that Judge Walker had said right after the Supreme Court ruled, he said he was taping for us in broadcast, but said ofcourse when trial is over I’m going to release to public.

O:  You would have heard more of an objection.

R:  You’d have heard an objection.  He did not say that he planned to release for broadcast. What would have been result?

O: My opponents would object.

R:  Would have gone to Supreme Court.

O:  Not sure.  They did not object.

R: He did not say he was going to release for broadcast.

O:  He did not explain consequesnecs of creating judicial record. There’s no question it’s in public record, for legitimate purpose, …

Smith:  That question is not before us.  This was made for Walker to make his decision. Why is this not analogous to Judge’s notes or clerk’s notes. Really, all he said was I don’t want to make notes; I want to see a record.

O: It was in record.

Smith: The purpose when made was to use instead of having notes. Therefore, I have a hard time understanding how this is part of judicial record. Tell me the case that supports what you say.

O: It;s the same as writing, but it has sound that shows intention via voice and visual to see body language.  He said he was going to use video  to see and hear what was going on in trial.  Same as evidence.

3:17 (Jacob): In general, the judges seem dismissive of the Prop 8 side’s arguments that releasing the tapes would cause any harm or harassment.  They seem much more concerned (Judge Smith and Ted Olson are both speaking forcefully) about the fact that Judge Walker said he was making the recording only for his personal use.

3:15 (Arisha): Olson’s argument is that the video was made for a lawful purpose at the time (for Judge Walker’s personal review) and then he placed it in the judicial record without objection from the initiative proponents.  He argues that placing it in the judicial record had consequences; and one of those consequences is the potential use of those tapes beyond the initial purpose they were recorded for (in this case, for public broadcast).   Placing the tapes in the public record means that they should be open to the public, despite Walker’s assurances that they would not be broadcast.

Smith: What was Walker’s purpose when making the tapes; the purpose was using the tapes instead of taking notes.  I don’t understand why notes were made a part of the judicial record.

Olson: argues that the tapes are not like notes, they are a record of the proceedings.

3:11 (Rick): Olson (arguing for plaintiffs):  We start with strong presumption for access. Only if there is a narrow interest, we look at overriding the common law.

R:  Let’s get to reason 4.  What’s your view re: integrity of judiciary if district judge makes commitments about what will happen and then broken by district court.

O:  Judge Walker was creating video for purposes which were not precluded….

R: Did not say would never be released?

O:  He himself had sealed the record. Sealed records are overtuned all the time.

S:  Did he make a finding of fact in this matter?

O: Yes.

S:  Why does this not provide Judge Ware to rule that potential of public broadcast has been eliminated.  Judge Ware did not want to interpret local rule. He was looking at abuse of discretion.

O:  I heard Mr. Thompson say that local rule preempts common law.  I have never heard of that.  This court knows that sealing order and protective order under two cases mentioned may be reversed or changed.

Hawkins:  Didn’t Judge Walker continue videotaping after the defendants objected?

3:10 (Adam): If you’re having trouble like everyone else listening to the KQED live-stream, they just tweeted that they are at their max for listeners, and no new folks can listen in. My only suggestion would be to try again later.

3:08 (Arisha): Thompson decided to reserve the balance of his time for rebuttal. Ted Olson will now have 30 minutes to argue for the plaintiffs.

3:05 (Rick): DT:  Can take snippets of video and manipulate it.  Theplaintiffs have said that they will “flood the internt” with snippets.

Systemtic harm if committed to keep sealed.

R:  Systemic, not to your client.

H: If we conclude that the judge made a binding commitment, we can leave harm aside.

DT:  WE only need harm if we lose everything else.

Smith:  Rule does not bar whtehre judge can video for his own purposes.

DT:  no.

Smith: Does the rule (of the circuit) speak to whether one enters what judge walker did into record or not?

DT:  That’s precisely why we did not appeal. It was not in record.

Smith: If he can create it and put in record and you don’t object, how does this preempt public right?

DT:  He put in record under seal.

Smith: If there are documents or even a video tape legally put together and legally put into a record, the rule does not stop this from being released.

DT:  77-3 prohibits releasing tape.

Smith:  Where does the rule say it cannot be unsealed?

DT:  It says it cannot be broadcast.

Olson is up.

3:00 (Rick): Judge Hawkins asks about video of trials.

DT: 64% of judges said that broadcast would make witnesses less likely to speak, which is why we have a long standing ban against broadcast.

Reinhardt:  Second witness, Mr. Miller, was only testifying about political power of gays.  He did not make any kind of remarks gays could resent.  What he said was that gays had more political power than gays say.

DT:  Yes.

R:  It’s not likely that he’s going to be harassed or strung up for saying that political power was thus.  He did not testify about gay marriage.

DT: He did not expect this to be televised.

R:  But let’s stay with my question.  The first question is whether he’ll be harassed.

DT: In the record, Mr. Schubert talks about hundreds of harassing calls.

R:  But he ran the campaign. You’d expect more emotion.

DT:  People with yard signs got harassed.

R:  Let’s move on.  We have three more issues and limited time.

2:57 (Jac0b): Judge Hawkins points out that identity of the Prop 8 witnesses is part of public record, asks what the difference is with videos.

2:55 (Arisha): Thompson argues that harassment, violence and vandalism are still a threat for defendants’ witnesses and haven’t faded over time. “The intensity of interests and passions will only grow into a crescendo” as time passes, he argues.

2:54 (Rick): DT: What are the harms?  One is witness harassment.  Supreme Court ruled in this case that that could be the case.  January 2010 ruling.

Smith:  Interrupts to ask how relevant.

DT: Passing of time, passions have ebbed, level of violence since 2008.  In this case, we think emotion will achieve crescendo when case concludes?

Reinhardt:  You had two witnesses?  And one went on TV and was not harassed or harmed.

DT:  With respect to Mr. Blankenhorn, he was a man of fortitude. He was not concerned.

R:  Strong convictions.

DT: the other witness was not broadcast.

R:  The other witness was known.  What’s the difference? Was there some surpise in his testimony?

DT:  There are harms, second of which is possible harms of distortions of one’s views.

R: We’re giving up on the first harm?


DT:  No.

2:52 (Jacob): Thompson admits that Blankenhorn has said candidly he isn’t afraid of any retribution, which has been the main argument of the Prop 8 proponents against releasing the tapes of the trial.

2:50 (Rick): Judge Smith asks why they did not appeal that Walker was still taping the trial? And isn’t the judge given the right to use his discretion?

DT: You are suggesting I have three different standards in this case.  Why can’t I just say it’s abuse of discretion and leave it at that.

If we were in a world where common law applied, there is no case in which video of trial was let loose.  Refers to Clinton’s video transcript in the Susan McDougal case.  Held that common law right of access does not apply. Says there are four separate harms to releasing the tapes.

Hawkins:  Were your clients under impression that would be under seal forever?

DT:  Yes. Well no, we thought it would be a minimum of 10 years and have opportunity for extended seal.

Hawkins: Your clients were aware of that?

DT: Yes.

Hawkins: Is that in the record?

DT: No.

2:49 (Jacob): Judge Smith also asks about standard of review: should we just refer to Judge Ware’s decision?

2:45 (Rick): And we’re off. The Judges are seated and arguments begin. We’re here to hear two more chapters in the case of Perry v. Edmund G. Brown.

David Thompson for the appellants. This case presents the question of whether a district court barred from broadcasting the trial can then broadcast the trial.  We submit if the answer to the question of common law right of access has precedent, then there will be grave harm. Judge Walker said the potential for broadcast had been eliminated.  At least from 14 Jan on the proponents’ witnesses knew there’d be no broadcast.

2:42 (Adam): Jacob and many of you in the comments note that KQED’s audio feed keeps cutting in and out…I don’t have any solution or response, except, keep following along by refreshing the page, and we’ll do our best as usual to transcribe everything.

2:41 (Adam): Ted Olson will be arguing for the plaintiffs (our side) on the issue of releasing the tapes, and David Boies on the issue of dismissing Judge Walker’s ruling because of his sexual orientation; David Thompson will argue the former for the proponents, Charles Cooper the latter for the proponents.

2:39 (Rick): Bustle. The clerk just closed the door to chambers.  She’s looking anxiously at some AV stuff.  Any minute, we can expect Molly Dwyer to say, “all rise,” I hope.

2:35 (Rick): Judge Walker was never late. We’re at 2:35 and have not started. I guess being gay does mean being late. Wonder if will criticize Judge Walker for running a timely trial?

2:32 (Jacob): Str8Grandmother from the comments sends in this twitpic of the courtroom, to illustrate what Rick’s talking about.

2:27 (Arisha): A few minutes until the hearing is set to kick off.  The courtroom is less packed this time according to Rick, but there is still little room to maneuver your way to a seat. Rick and I lucked out and nabbed seats close to the front — just between the judge’s bench and the table for the defendant’s attorneys.  Although “less packed” the room is so intimate that someone who looks a lot like National Organization for Marriage’s Jennifer Roback Morse is sitting directly to my left (apparently live-tweeting for NOM from her iPod Touch); she graciously plugged my laptop adapter in for me.

It’s always fascinating to watch these two opposing sides in the same room, behaving cordially to one another.

2:26 (Adam): If you’d like to read about the last time Rick and everyone here were live-blogging before the 9th Circuit, it was on December 6th, 2010, when the 9th Circuit first took up the appeal of Judge Walker’s decision striking down Prop 8 as unconstitutional. They eventually decided months later to kick the ball to the California Supreme Court on this issue of standing. The live-blog thread from December 6th, 2010 can be found here.

We’re waiting for the first hearing, on the appeal of Judge Ware’s decision to release the tapes, to begin.

2:23 PM (Jacob): For those wondering, Presidents Carter, George W. Bush and Clinton appointed Judges Reinhardt, Smith and Hawkins, respectively.

2:21 PM (Rick): The clerk is now telling folks to turn off their pagers and devices, etc.  She’s telling folks that the cameras are covering everything, but that it’s only for court use.  She said that if you are at the podium, which has a digital timer on it facing the judges’ bench, you will be on TV.  She said the judges will be seated as Judges Hawkins and Smith will flank presiding Judge Reinhardt.

For those who have not been inside of the courtoom, here’s another quick physical description.  The room seats about 200 people. There’s an old fashioned gate that separates the viewers in their pews from the lawyers’ tables which are perpendicular to the audience space and the judges’ bench.  The bench itself sits on brown marble, two steps up from the audicence.  There are eight big chairs on the first level of the bench, the center of which is a marble dais on which sits a wooden plinth.  Above that and behind is a much higher bench at which three charis are placed.  That’s where these judges will sit. The lower table is for the “en banc” hearings which apparently will begin next week (not about this case).

Behind the judges’ bench is a very intricate geometric marble design, inlaid with jadeite-like stone and shiny gold looking leaves.  So the judges sit right in front of an elegant, dark and eye-catching mosaic of shape. The room itself if sort of high baroque.  There are angels holding up shields above which float eagles.  The ceiling is coffered, separated by three stained glass sky lights, the middle of which has the seal of the US, or of the judiciary or something official looking.

It’s a great looking room, very magisterial.

Oh, Arisha thinks we’re sitting next to Jennier Roback Morse, who plugged our computers in for us.  Fun!

2:19 PM (Jacob): KQED is live-streaming audio of the hearing here.

2:10 PM (Rick): Groundhog day?  I arrived at the 9th Circuit courthouse on this bright, sunny December day (367 days ago) to see a dedicated group carrying the banners of equality, listening intently to Assemblymember and LGBT/civil rights hero (and comedian) Tom Ammiano.  Same place, same time, a year later.  Having live-blogged the whole trial, I can never forget that August day in 2010 when Judge Walker issued his ruling overturning Prop. 8.  The 9th promised an expedited hearing and ruling.  And here we are, nearly a year and a half later, still waiting.

Adam already wrote about our friend Ed who died yesterday of complications associated with Alzheimer’s, waiting in vain for a ruling that would allow him to marry Derence.  When I heard that this morning on the plane on the way up, I got choked up. I am again.  This big, ornate marble hall truly results in life and death decisions, some by omission.

This time, I’m sitting up front against the wall on the plaintiffs’ side, where I can get a good look at Mr. Cooper, who I still think should be embarrassed about the way he has handled this case.  He had a chance to put on a case two years ago; he did not because he could not and then just said in closing arguments that he did not need evidence.  It’s been downhill ever since.

What’s sad here is that even though we again have the leading team of trial lawyers in the country here for our side—I said hello to Ted Olson, David Boies, Ted Boutrous, Terri Stewart, Enrique Monagas—we’re dealing with delaying tactics.  They are arguing today about whether Jude Walker could be objective because he’s gay. Judge Ware already virtually laughed that out of court, but delays help Mr. Cooper and his friends to keep people like Ed and Derence from living fully.   Oh and we get to hear why the tapes of the trial should be buried even as this hearing is telecast and radio cast.  Go figure.

What’s it like here?  Rob and Michelle Reiner came in as I did.  Chad Griffin, the mastermind of the operation, is here with the two sets of plaintiffs.  I came in the building the courtroom with Dustin Lance Black, the AFER co-founder who never flags in his work for LGBT equality whether in his art or his organizing.  The courtroom is not full this time.  A year ago, it was packed.  This is ministerial, so it’s less interesting, I supposed. It is yet another step in the effort by the opponents of fairness and love, the anti-American websitecalled protect marriage dot com, to slow down the inevitable.

Arisha just got here. This is going to be interesting!

2 PM PST: Welcome to Courage Campaign Institute’s for coverage of today’s hearings at the 9th Circuit. Today’s hearings will cover the appeal of Judge Ware’s decision to order release of the video recordings from the Prop 8 trial, and the appeal of Judge Ware’s decision to dismiss a motion from the proponents of Prop 8 to throw out Judge Walker’s ruling because he’s gay. For all you need to know on today’s hearing, check out Jacob Combs’ preview piece from this morning.

The hearings will begin at 2:30 PM PST; one hour is allotted in oral arguments for each appeal, so things are expected to wrap up around 4:30 PST.

Courage’s Rick Jacobs and Arisha Hatch are at the courthouse, and Rick just reported in that he’s seated near the front in the courtroom. We’ll be blogging the oral arguments and responses from the judges, along with coverage of the protest outside and all else. Jacob and I will be getting their reporting up and providing color commentary and other links from around the legal community.

Let’s get it started!


  • 1. MichaelPDX  |  December 8, 2011 at 2:04 pm

    I am here in Portland's beautiful Pioneer Courthouse. The excitement in the room is obvious. Of course, I am the only one here so far.

  • 2. Str8Grandmother  |  December 8, 2011 at 2:07 pm

    Michael, that is SO funny! 🙂

  • 3. rick jacobs  |  December 8, 2011 at 2:09 pm

    too funny! It's less interesting this time, but it's still going to be fun to see who the website protect marriage dot com manages to argue anything at all.

  • 4. JonT  |  December 8, 2011 at 2:19 pm


  • 5. Sagesse  |  December 8, 2011 at 2:05 pm


  • 6. ben  |  December 8, 2011 at 2:09 pm

    is there ANY place to watch it live?

  • 7. bjasonecf  |  December 8, 2011 at 2:10 pm

    And there's live audio!!

  • 8. Alan_Eckert  |  December 8, 2011 at 2:13 pm

    This should be posted at the top.

  • 9. bjasonecf  |  December 8, 2011 at 2:15 pm

    I hope we don't crash the server!

  • 10. nightshayde  |  December 8, 2011 at 2:18 pm

    … and once again, I'll not be able to follow along. I can't stream anything on my work computer & I can't find a way to listen on my phone (unless the listening link just isn't up yet).

  • 11. Carpool Cookie  |  December 8, 2011 at 2:23 pm

    I am hearing silence…maybe a soft static. Is this normal? Huston, do you read me?

  • 12. Carpool Cookie  |  December 8, 2011 at 2:24 pm

    Wait, it just came alive. Laughter??

  • 13. bjasonecf  |  December 8, 2011 at 2:27 pm

    audio is in and out. Hopefully it will stick around once they get started.

    SO EXCITE!!!! 🙂

  • 14. 415kathleenk  |  December 8, 2011 at 2:11 pm

    waiting with bated breath in my office in another part of San Francisco… I wish i could be on hand at the 9th circuit but not this time. The hearing there last year was phenomenal.

  • 15. ben  |  December 8, 2011 at 2:11 pm

    I found AUDIO stream here!!!

  • 16. torque  |  December 8, 2011 at 2:13 pm

    I was only able to stay for the rally in SF. Some great speeches 🙂 Sorry I didn't introduce myself to anyone but I'm a bit shy! Here's a quick shot from my phone.!/okaytorque/media/slideshow?…

  • 17. bjasonecf  |  December 8, 2011 at 2:16 pm

    nice shot!! and welcome!

    Did you get to meet any of our gang?

  • 18. torque  |  December 8, 2011 at 2:18 pm

    Thanks for the welcome! I've been on the site for awhile, just never made it up to SF (but moved here a few months ago with my partner).

    Didn't get to meet anyone, I just kind of showed up for the rally and then quietly slipped out after the speeches to get back to my office. Next time I'll just look lost and ask people about Trial Trackers! 🙂

  • 19. bjasonecf  |  December 8, 2011 at 2:25 pm

    They're a great group!

  • 20. Adam Bink  |  December 8, 2011 at 2:14 pm

    First update from Rick posted above.

  • 21. Dee  |  December 8, 2011 at 2:42 pm

    Would you post a link to the audio stream in the feed?

  • 22. peterplumber  |  December 8, 2011 at 2:15 pm

    Will updates force a refresh? Or do we need to do manual refreshes?

  • 23. bjasonecf  |  December 8, 2011 at 2:21 pm

    manual refreshes. Adam is good about posting in the comments when there is an update at the top

  • 24. ben  |  December 8, 2011 at 2:20 pm

    "please stand by while we try to reconnect"

    god I hope this audio isn't a complete continuous fail.

  • 25. chris from CO  |  December 8, 2011 at 2:20 pm

    On the audio is anyone else getting "Please stand by while we try to reconnect."

  • 26. JonT  |  December 8, 2011 at 2:24 pm

    I'm hearing audio now….

  • 27. JonT  |  December 8, 2011 at 2:42 pm

    I think we just overloaded their servers. Sigh.

  • 28. MightyAcorn  |  December 8, 2011 at 2:44 pm

    Yes…..this will be torture if it continues.

  • 29. rick jacobs  |  December 8, 2011 at 2:23 pm

    Well, there's nothing going on, so maybe they don't need to connect. We're here, though!

  • 30. nightshayde  |  December 8, 2011 at 2:24 pm

    Thank you for being there, rick — you're my only hope!

  • 31. bjasonecf  |  December 8, 2011 at 2:29 pm

    yes, Rick – what Nightshayde said!

  • 32. Str8Grandmother  |  December 8, 2011 at 2:24 pm

    pic from inside courtroom

  • 33. Carpool Cookie  |  December 8, 2011 at 2:27 pm

    What beautiful plasterwork.

    The guy on the right is frowning.

  • 34. Carpool Cookie  |  December 8, 2011 at 2:24 pm

    I hear lively chatting, and laughter. I wonder if they have a cash bar.

  • 35. Adam Bink  |  December 8, 2011 at 2:29 pm

    Several updates posted above while we wait for this ballgame to start.

  • 36. Adam Bink  |  December 8, 2011 at 2:30 pm

    Also, if you have something of note or are there in person, send your tidbit to adam at couragecampaign dot org and we'll take a look at getting it up. This is a community site!

  • 37. Kate  |  December 8, 2011 at 2:32 pm

    Morse is already making little digs about us as she live blogs at Maybe Arisha can bump her with her elbow and make her go offline!

  • 38. frisky1  |  December 8, 2011 at 2:43 pm

    Someone should tell her that the name of the case is now Perry v Brown not Schwarzenegger as is listed on the top of her page.

  • 39. Kate  |  December 8, 2011 at 2:47 pm

    Well, you know how behind the times that bunch is………….

  • 40. Prop 8 Live! Listen Now H&hellip  |  December 8, 2011 at 2:33 pm

    […] over to the Courage Campaign’s live blogging of today’s hearing […]

  • 41. mark  |  December 8, 2011 at 2:36 pm

    Im on KQED radio live audio and I cant find prop 8 hearing

  • 42. Kate  |  December 8, 2011 at 2:37 pm

    F5, F5, F5………….

  • 43. Chris from CO  |  December 8, 2011 at 2:39 pm

    Maybe its their way of saying they can take their time to do what they want.

  • 44. Kate  |  December 8, 2011 at 2:40 pm

    They've certainly been proving that over the last year!

  • 45. Str8Grandmother  |  December 8, 2011 at 2:39 pm

    Are they late in starting?

  • 46. bjasonecf  |  December 8, 2011 at 2:42 pm

    here we go

  • 47. bjasonecf  |  December 8, 2011 at 2:43 pm

    anyone else's audio going in and out?


  • 48. Sam  |  December 8, 2011 at 2:43 pm

    All I'm getting is static

  • 49. Alan_Eckert  |  December 8, 2011 at 2:44 pm

    Sounds more like the ocean. I heard a few words and then that was it.

  • 50. Carpool Cookie  |  December 8, 2011 at 2:45 pm

    My coworker asked if I was living to the ocean…

  • 51. Carpool Cookie  |  December 8, 2011 at 2:45 pm

    I mean "listening to"…

  • 52. Sam  |  December 8, 2011 at 2:44 pm

    "Please standby while we try to reconnect"……ugh

  • 53. Alan_Eckert  |  December 8, 2011 at 2:45 pm


  • 54. Bryce  |  December 8, 2011 at 2:44 pm

    It doesn't sound like Coop arguing for the Def.

  • 55. Bob  |  December 8, 2011 at 2:45 pm

    live broadcast keeps breaking up,,,, guess I'll resort to the old fashioned live blogging,,,, cheers everyone

  • 56. Kate  |  December 8, 2011 at 2:46 pm

    Morse is bragging about how they have 3 lawyers arguing against our 1 — but ours is Therese! They don't stand a chance even with 10 against HER/

  • 57. nightshayde  |  December 8, 2011 at 2:54 pm

    Every time I hear "Morse," I now think "that BITCH."

  • 58. Sam  |  December 8, 2011 at 2:46 pm

    It's back…who is this speaking? Cooper?

  • 59. Jacob Combs  |  December 8, 2011 at 2:47 pm

    It's David Thompson!

  • 60. Bryce  |  December 8, 2011 at 2:47 pm

    Maybe it does. I can't tell, but it doesn't sound so Southern.

  • 61. Kate  |  December 8, 2011 at 2:51 pm

    You guys are ALREADY so far ahead live-blogging that Morse might as well be blogging for tomorrow….

  • 62. nightshayde  |  December 8, 2011 at 2:55 pm

    *guesses that Morse is blogging for the 1950s*

  • 63. Adam Bink  |  December 8, 2011 at 2:57 pm

    Seriously, Morse isn't even updating. Her fingers are no match.

  • 64. Alan_Eckert  |  December 8, 2011 at 2:51 pm

    Isn't Thompson the Apellee in the tapes case since they are responding to the appeal? I know it will switch for the 2nd part, but can someone provide a cheat sheet? Mine is on my computer at work.

  • 65. bjasonecf  |  December 8, 2011 at 2:57 pm

    Hollingsworth was the the Appellee in the original broadcast appeals. Proponents are the appellees in this appeal of unsealing the tapes

  • 66. Fr. Bill  |  December 8, 2011 at 2:52 pm

    Is Thompson just a conservative preppy twit or is he as gay as he sounds?

  • 67. 415kathleenk  |  December 8, 2011 at 2:53 pm

    Justice ?? is evisverating Thompson. KQED live feed is finally working -Yippeee!

  • 68. bjasonecf  |  December 8, 2011 at 3:03 pm

    Thompson is handling himself better than Cooper has in the past.

    He is definitely getting battered, though.

  • 69. bjasonecf  |  December 8, 2011 at 2:54 pm

    IIRC Thompson is arguing for Proponents on the tapes but Cooper is arguing for them on vacating Walker's judgment

  • 70. Adam Bink  |  December 8, 2011 at 2:55 pm

    David Thompson, who is arguing for the proponents, is up and several updates from him are posted above.

  • 71. Sam  |  December 8, 2011 at 2:58 pm

    "Is it expert testimony?" LOL

  • 72. Alan_Eckert  |  December 8, 2011 at 3:04 pm

    He almost got him on that one. It would not have been the same definition of "expert" in testimony before Congress than it would have in the court system!

  • 73. Bryce  |  December 8, 2011 at 2:59 pm

    I don't like that Reinhart said that gays' political power is "debatable to some extent".

  • 74. Alan_Eckert  |  December 8, 2011 at 3:05 pm

    Everything is debatable to some extent.

  • 75. Steve  |  December 8, 2011 at 3:56 pm

    The idea that gays have tremendous political power is highly questionable. If it were real power, this court case wouldn't even be necessary

  • 76. Mouse  |  December 8, 2011 at 3:00 pm

    DT: There are harms, second of which is possible harms of distortions of one’s views.

    R: We’re giving up on the first harm?

    So, seeing a person on video present their views can potentially lead to distortion of those views in ways that talking about it without the video evidence cannot? Wow.

  • 77. Kate  |  December 8, 2011 at 3:02 pm

    Morse STILL hasn't posted anything that is happening. Good thing I'm not trying to get information from their site.

  • 78. nightshayde  |  December 8, 2011 at 3:07 pm

    They know they can't give accurate information – what would their sheeple "think?" They don't WANT their sheeple to think.

  • 79. bjasonecf  |  December 8, 2011 at 3:03 pm

    Our turn!

  • 80. Alan_Eckert  |  December 8, 2011 at 3:03 pm

    Go Mr. Olsen!

  • 81. bjasonecf  |  December 8, 2011 at 3:04 pm

    OLSON RULES!! (if I may be a 12 year old for a second) 🙂

  • 82. Mouse  |  December 8, 2011 at 3:07 pm

    “People with yard signs got harassed”

    Isn’t the act of putting up a sign on your yard an invitation to discuss the subject you clearly feel passionately about?

    If you feel threatened by people accurately labeling you as a hateful bigot when you decorate your yard with signs that declare a class of citizens to be less than equal, you can make a lifestyle choice not to sprinkle bigotry all over your lawn.

  • 83. Alan_Eckert  |  December 8, 2011 at 3:09 pm

    I stopped getting emails again. Too many comments =(

  • 84. Steven  |  December 8, 2011 at 3:10 pm

    funny , NOM's TWEETS are very rare… they are tweeting whatever favors them LOL go figure lol

  • 85. Kate  |  December 8, 2011 at 3:12 pm

    Ha ha — has anything favored them YET?!

  • 86. nightshayde  |  December 8, 2011 at 3:15 pm

    No – that's why they need protection from the big bad gays and the radical pro-gay movement.

    (that grinding sound may be my eyes rolling)

  • 87. Kate  |  December 8, 2011 at 3:17 pm

    I could hear that sound all the way to where I am!

  • 88. Sam  |  December 8, 2011 at 3:13 pm

    Olson stumbling a little

  • 89. 415kathleenk  |  December 8, 2011 at 3:16 pm

    Guys its Olson not Olsen

    He seems to be getting frustrated at the justices' questions

  • 90. bjasonecf  |  December 8, 2011 at 3:20 pm

    Thanks for the correction.

    He does seem to be getting frustrated but isn't losing his handle on things the way Cooper would.

  • 91. nightshayde  |  December 8, 2011 at 3:21 pm

    Thank you! I just Googled 'cause it was driving me nuts…

  • 92. bjasonecf  |  December 8, 2011 at 3:21 pm

    almost time for a new thread before comments collapse (they still do that at 100 here, right?).

  • 93. Jacob Combs  |  December 8, 2011 at 3:24 pm

    Unfortunately, that's the limit of the system! We'll be staying here with continuing coverage.

  • 94. Sam  |  December 8, 2011 at 3:22 pm

    We've been hearing a lot from Reinhardt and Smith….is this the last judge speaking right now?

  • 95. 415kathleenk  |  December 8, 2011 at 3:26 pm

    KQED live feed just crashed 🙁

  • 96. 415kathleenk  |  December 8, 2011 at 3:26 pm

    for me anyhow

  • 97. bjasonecf  |  December 8, 2011 at 3:26 pm

    me too

  • 98. Tom  |  December 8, 2011 at 3:27 pm

    back on 🙂

  • 99. MightyAcorn  |  December 8, 2011 at 3:31 pm

    Webcast fail while Therese Stewart is arguing? NOOOOOOOOOO *sob*

  • 100. bjasonecf  |  December 8, 2011 at 3:32 pm


  • 101. Carpool Cookie  |  December 8, 2011 at 3:32 pm

    Not back on for me… : (

  • 102. Tom  |  December 8, 2011 at 3:34 pm

    Was back for a minute, now getting message saying station is offline…

  • 103. MightyAcorn  |  December 8, 2011 at 3:39 pm

    The website notes they've lost audio, working to restore it. Pooh.

  • 104. Str8Grandmother  |  December 8, 2011 at 3:27 pm

    Please stand by while we try to reconnect…

  • 105. Alan_Eckert  |  December 8, 2011 at 3:29 pm


  • 106. Str8Grandmother  |  December 8, 2011 at 3:29 pm

    You have reached a station that is unavailable at this time please try again later
    Is everybody getting that?

  • 107. Steve V.  |  December 8, 2011 at 3:30 pm

    Pretty sure KQED's getting hammered.

  • 108. Alan_Eckert  |  December 8, 2011 at 3:32 pm

    I got a weird dial tone message.

  • 109. Str8Grandmother  |  December 8, 2011 at 3:34 pm

    Well at least it is not just me, I am getting the 3 ring tones also.

  • 110. nightshayde  |  December 8, 2011 at 3:34 pm

    They're supposed to start the part about the motion to dismiss now (3:30pm), aren't they?

  • 111. bjasonecf  |  December 8, 2011 at 3:37 pm

    the first one started late so they're running over

  • 112. Str8Grandmother  |  December 8, 2011 at 3:36 pm

    Yes 3:30 is the arguments to vacate cuz Walker is gay

  • 113. JonT  |  December 8, 2011 at 3:37 pm

    …and the audio's gone 🙁 I am surprised they (KQED) underestimated the interest in this case so badly.

    My kingdom for another (working) live feed! 🙂

  • 114. Steven  |  December 8, 2011 at 3:39 pm

    I believe that the court won't release the recording of the trial..

  • 115. Carpool Cookie  |  December 8, 2011 at 3:40 pm

    "KQED RADIO SITE: 3:35 p.m.: We lost audio and are working to get it back."

    I bet that Morse woman unplugged something ! ! !

  • 116. Gregory in SLC  |  December 8, 2011 at 3:43 pm

    lol! probably…good timing though. 10 min recess

    AFER AmericanEqualRights
    RT @KQEDnews: Our #Prop8 livestream has hit its max number of listeners. We are aware and are working on it. Thanks for your patience.
    4 minutes ago Favorite Retweet Reply

    AFER AmericanEqualRights
    Coming up next: arguments regarding motion to vacate after Walker disclosed his relationship.
    4 minutes ago

    NCLRights NCLR
    #prop8 Court now taking 10 min recess.
    4 minutes ago

  • 117. bjasonecf  |  December 8, 2011 at 3:40 pm

    Re Audio: "you broke the bloody ship!!"

  • 118. fiona64  |  December 8, 2011 at 3:41 pm

    As Wilbur pointed out earlier (Wilbur, if you're the same guy who posts/posted on the SacBee, I'm awfully glad to see you), there is no real way to tell how they'll decide. While the tapes may well remain sealed, I suspect they'll throw out the whole absurd idea that Judge Walker was prejudiced by his relationship.

  • 119. Bryce  |  December 8, 2011 at 3:45 pm

    I just don't see how they could find that Judge Ware was bound by Judge Walker's assurance, particularly when–assurance or not–there is always a right to motion to lift the seal. I know they seemed hard on the Plaintiffs, but I really don't know how much that can possibly mean.

  • 120. MightyAcorn  |  December 8, 2011 at 3:51 pm

    I'm afraid they're going to find that the Proponents would have lodged an objection if they thought there was any chance of broadcast, and that they didn't file an objection because Walker reassured them the tapes were only for his reference. I dunno how this is gonna go. I've always thought the tapes would only ever be seen after any final appeals, but I really don't want to be right about that.

  • 121. chris from CO  |  December 8, 2011 at 3:42 pm

    It didn't seem like they were going to release the tapes.

  • 122. rick jacobs  |  December 8, 2011 at 3:43 pm

    They will start the "can a judge judge if he's gay" in five minutes.

  • 123. bjasonecf  |  December 8, 2011 at 3:43 pm

    could we, pretty please, get a new thread before they start again? with sugar on top!??! 🙂

  • 124. Str8Grandmother  |  December 8, 2011 at 3:43 pm

    I called the station and talked to the radio guy. First they thought the problem was with equipment inside the courtroom. Now they think the problem is with a service they use called 365Live. The engineers are working on it. Seems like we swamped the 365Live servers. He said when he hung up that he would go check with the engineers.

  • 125. Carpool Cookie  |  December 8, 2011 at 4:04 pm

    "Now they think the problem is with a service they use called 365Live. The engineers are working on it."

    I just bet 365Live is an enterprise that Morse Woman owns…

    How could we not see this coming ? ? ?

  • 126. maggie4noh8  |  December 8, 2011 at 3:44 pm

    I am frustrated. No audio, and sounding like no tapes. My kingdom to see the tapes. Also, not sure I can bear the gloating on the NOM side if tapes remain sealed.

  • 127. Alan_Eckert  |  December 8, 2011 at 3:44 pm

    Two things I will desperately miss if the tapes aren't released:

    "Good God man!"

    and the classic Blankenhorn quote about being more American.

  • 128. Steve  |  December 8, 2011 at 3:57 pm

    Don't forget "I don't know" when asked how same-sex marriage harms society

  • 129. Steve  |  December 8, 2011 at 3:58 pm

    And "You don't evidence your honor"

  • 130. Str8Grandmother  |  December 8, 2011 at 3:45 pm

    AFER tweets = "livestream has hit its max number of listeners. We are aware and are working on it. Thanks for your patience"

  • 131. Kate  |  December 8, 2011 at 3:45 pm

    So……….. if the proponents get their way and the tapes stay sealed because Walker said they would be, how can they go ahead and still want Walker's decision vacated because he is gay???? Wouldn't that also mean his decision about the tapes would be vacated at the same time? Looks to me as though they're trying to get it both ways.

  • 132. Bob  |  December 8, 2011 at 3:54 pm

    good point Kate,,,,

  • 133. hadIt  |  December 8, 2011 at 3:45 pm

    I get angry when my civil rights are debated this way. There is a question of basic equality that is lacking and that should not even be in question in this country in the 21st century.

  • 134. MightyAcorn  |  December 8, 2011 at 3:46 pm

    Much as I admire Walker, I do think he gave the impression to the Proponents that the tapes weren't going to be released ever. We're making some nice semantic arguments, but I don't think they're going to hold water. I also doubt SCOTUS would overturn a ruling by the NInth to keep them under seal. Sigh.

  • 135. Bryce  |  December 8, 2011 at 3:51 pm

    I disagree. He didn't say "the possibility of broadcast has been eliminated EVEN IF A DIFFERENT JUDGE TAKES OVER THE CASE AND EVEN IF THE PLAINTIFFS EXERCISE THEIR RIGHT TO HAVE THE SEAL REVISITED." Absent him saying that, there is no way he could ever "give the impression…that the tapes weren't going to be released ever." To think otherwise is really quite naive. No first year law student would get away with buying that!

  • 136. MightyAcorn  |  December 8, 2011 at 3:55 pm

    I hope you're right Bryce. Happy to be very wrong here, but I'm not feeling like we've won the day.

  • 137. Bryce  |  December 8, 2011 at 3:59 pm

    Well I hope I am right too, that is always welcome. However, even if we lose the tapes we may still win the day on the motion to vacate!
    As my International Relations professor always said: "Think good thoughts. They have a weird way of materializing."

  • 138. MightyAcorn  |  December 8, 2011 at 4:02 pm

    If we don't win on the motion to vacate we'd better all just move to Canada. If the courts can't see through this vapid Hail Mary homophobic delaying tactic, we're done as a nation, stick a fork in it already.

  • 139. maggie4noh8  |  December 8, 2011 at 3:46 pm

    latest KQED on live stream:

    Note: We lost Internet connection in the courthouse so our webcast of the proceedings has been interrupted. We're trying to fix the problem…

  • 140. bjasonecf  |  December 8, 2011 at 3:46 pm

    @Alan: and Cooper's "I don't know. I don't know."

  • 141. MightyAcorn  |  December 8, 2011 at 3:56 pm

    At least we'll always have Delores.

  • 142. Str8Grandmother  |  December 8, 2011 at 4:11 pm

    Ziiiiing! Good one MightyAcorn, good one.

  • 143. Alan_Eckert  |  December 8, 2011 at 3:56 pm

    Oh yeah! That was so early on I forgot about that. There is also the "we don't need evidence" quote.

  • 144. thark  |  December 8, 2011 at 3:47 pm

    If the trial tapes aren't released, but the remain as admitted evidene, doesn't that mean that the contents of the trial tapes are and always will be federal evidence, to be readily accessed in any future federal case regarding marraige equality..?

    And if they do appear as a eviduciary reference in some future appeal, are the parameters changed as to the scope of Judge Walker's initial seal order…?

    Just curious

  • 145. bjasonecf  |  December 8, 2011 at 3:54 pm

    Great question!!

  • 146. Gregory in SLC  |  December 8, 2011 at 3:53 pm

    last few tweets:

    EqualityOnTrial Testimony
    From @RickJacobs: I’m guessing they're not vacating the judgment bc Judge Walker is gay. Also, next time I’m eating before the trial! #Prop8
    1 minute ago

    CourageCampaign CourageCampaign
    From @RickJacobs: I’m guessing they're not vacating the judgment bc Judge Walker is gay. Also, next time I’m eating before the trial! #Prop8
    1 minute ago Favorite Retweet Reply

    NCLRights NCLR
    #prop8 court back in session. Now hearing args on whether #prop8 trial decision should be vacated because J. Walker is gay/in relationship.
    1 minute ago

    EqualityOnTrial Testimony
    From @RickJacobs: So this does not look good. These tapes look like they are staying under seal. #Prop8
    3 minutes ago

    CourageCampaign CourageCampaign
    From @RickJacobs: So this does not look good. These tapes look like they are staying under seal. #Prop8
    3 minutes ago

    NCLRights NCLR
    [email protected] Working to fix the livestream from the #Prop8 hearing. We appreciate your patience while we work through connectivity issues.
    6 minutes ago

  • 147. Bob  |  December 8, 2011 at 3:56 pm

    who needs tapes if we win on the merits???

  • 148. Steve  |  December 8, 2011 at 4:01 pm

    There is no deep need, but there are some awesome quotes in there that would be entertaining

  • 149. hadIt  |  December 8, 2011 at 3:57 pm

    RickJacobs: I’m guessing they're not vacating the judgment bc Judge Walker is gay.

    If they did it would reverse the whole court system. Every judge has some part of every trial issue that would come up in court room. A black judge on a black case, women judges judging a female case, etc.

  • 150. Alan_Eckert  |  December 8, 2011 at 3:57 pm

    So a married judge could not hear a divorce?


  • 151. karen in kalifornia  |  December 8, 2011 at 4:01 pm

    Or….if Walker could marry and did (hypothetical here)…he wouldn't have to disclose he was in a committed relationship. LOL

    Catch 22, etc

  • 152. Steve  |  December 8, 2011 at 4:00 pm

    Cooper just got owned

  • 153. Steve  |  December 8, 2011 at 4:28 pm

    When I wrote that the owning just got started. Wow

  • 154. Bryce  |  December 8, 2011 at 4:04 pm

    Is it just me, or is KQED still not back? I am just wanting to check to make sure I am not missing something.

  • 155. Carl  |  December 8, 2011 at 4:06 pm

    Try again. I just got mine back.

  • 156. MightyAcorn  |  December 8, 2011 at 4:08 pm

    I didn't 🙁

  • 157. MightyAcorn  |  December 8, 2011 at 4:09 pm

    Scratch that! Reloaded player and restored stream, yaay! Go get him, guys!!

  • 158. Str8Grandmother  |  December 8, 2011 at 4:12 pm

    Radio still not up for me either

  • 159. MightyAcorn  |  December 8, 2011 at 4:07 pm

    Scandalous! Now they're alleging WARE can't make an unbiased ruling either? Oh, what I wouldn't give to hear Cooper getting reamed for that tack. Curse you, Live365!!! (BTW, I would be less annoyed at the stream failure if that damn "Live365" tag didn't keep playing every three seconds….)

  • 160. pel  |  December 8, 2011 at 4:07 pm

    Where can I hear the second part of this? It seems everything is closed down. I had to step away for a bit but I want to hear the rest of the audio!!!

  • 161. bjasonecf  |  December 8, 2011 at 4:11 pm

    audio imploded but seems to be back up now

  • 162. Bryce  |  December 8, 2011 at 4:09 pm

    "Lookin' for a yes or no, Mr. Cooper." Wow.

  • 163. bjasonecf  |  December 8, 2011 at 4:09 pm

    yay, audio

  • 164. Alan_Eckert  |  December 8, 2011 at 4:10 pm


  • 165. nightshayde  |  December 8, 2011 at 4:10 pm

    Evidence? We don't need any evidence!

    Where have I heard THAT before?

  • 166. Chris in Lathrop  |  December 8, 2011 at 5:30 pm

    "Badges? We don't need no stinkin' badges!"

  • 167. Mike in Houston  |  December 8, 2011 at 4:11 pm

    I'm really less concerned about the damned tapes than I am that they not disqualify Judge Walker. At this point, it doesn't look like they are going to. The haters are getting more and more desperate and they aren't getting anywhere. Hooray!

  • 168. Carpool Cookie  |  December 8, 2011 at 4:12 pm

    Even if Judge Walker had some secret desire to marry (which he had nevertheless chosen not to jump on when same sex marriage was available to him in his city at two different times in two different years), it gets him nowhere if his partner does not want to marry HIM. So, if some judge's desire to marry is what it all hinges on, you'd also have to figure in their partner's desire, and there's no evidence of THAT, here, either.

  • 169. nightshayde  |  December 8, 2011 at 4:17 pm

    … plus they could have travelled to a jurisdiction which would allow them to marry.

  • 170. Str8Grandmother  |  December 8, 2011 at 4:13 pm

    This is a pretty good tweeter

  • 171. bjasonecf  |  December 8, 2011 at 4:15 pm

    There was a time that I felt bad for Cooper. That time has passed.

  • 172. MJFargo  |  December 8, 2011 at 5:19 pm

    For me, there's a difference in "feeling bad for" and being "embarrassed for."

  • 173. Alan_Eckert  |  December 8, 2011 at 4:15 pm

    You no haz Evidence!

  • 174. bjasonecf  |  December 8, 2011 at 4:18 pm

    Cooper is getting sucked in a deadly hole right now

  • 175. bjasonecf  |  December 8, 2011 at 4:19 pm

    The proponents cannot keep their arguments in order

  • 176. nightshayde  |  December 8, 2011 at 4:26 pm

    That's the danger you face when you make up your case as you go along.

  • 177. bjasonecf  |  December 8, 2011 at 4:28 pm

    No doubt!! 🙂

  • 178. Sam  |  December 8, 2011 at 4:19 pm

    LOL–they're destroying their own merits argument re: harm to heterosexual marriages. This is hilarious.

  • 179. Chris in Lathrop  |  December 8, 2011 at 5:32 pm

    Here and there I've wondered if, in some sneaky way, Charles Cooper is actually trying to sabotage his clients' case…

  • 180. Mouse  |  December 8, 2011 at 4:20 pm

    Cookie, you don’t need to take into account anyone’s desire to marry – going back to traditional marriage values, it’s all about what the parents arrange as being the most profit to them, anyway!

  • 181. bjasonecf  |  December 8, 2011 at 4:21 pm


  • 182. nightshayde  |  December 8, 2011 at 4:21 pm



  • 183. maggie4noh8  |  December 8, 2011 at 4:21 pm

    Arisha: Cooper: We have disclaimed since the beginning that individual marriages will not be harmed by same-sex marriage. [WHAT?]

    WHAT? Did Cooper really just say that???

  • 184. Steve  |  December 8, 2011 at 4:27 pm

    They claim that they are more concerned about the "institution of marriage". It's BS semantics though

  • 185. Alan_Eckert  |  December 8, 2011 at 4:28 pm

    If the institution is harmed, then individual marriages are harmed. Does Not Compute.

  • 186. Carpool Cookie  |  December 8, 2011 at 5:04 pm

    Yeah. It's sort of saying, "The Institution of Higher Learning will be harmed…but not any individual teachers or students."

  • 187. MightyAcorn  |  December 8, 2011 at 4:22 pm

    Yaaay, Boies is up! And I love that he sounds like Bob Newhart.

  • 188. Alan_Eckert  |  December 8, 2011 at 4:29 pm

    Yeah he does sound a lot like Bob Newhart, and I agree because I just watched Elf again today.

  • 189. Kate  |  December 8, 2011 at 4:23 pm

    Jenny Morse has not "live-blogged" a single bit of this interchange…………

  • 190. Carpool Cookie  |  December 8, 2011 at 4:28 pm

    She's too busy pulling out the sound wires….

  • 191. maggie4noh8  |  December 8, 2011 at 4:29 pm

    I know – I keep refreshing on NOM site, Prop8Case, etc and there are no updates… Would be soooo interesting to see how the "spin" makes it sound from another perspective.

  • 192. bjasonecf  |  December 8, 2011 at 4:24 pm

    "If something is irrelevant, you don't have to disclose it." David Boies

  • 193. Alan_Eckert  |  December 8, 2011 at 4:30 pm

    Kate said: "Jenny Morse has not "live-blogged" a single bit of this interchange…………"

  • 194. bjasonecf  |  December 8, 2011 at 4:33 pm

    She's too busy trying to figure out where she will apply for a job and how soon that will be necessary.

  • 195. MightyAcorn  |  December 8, 2011 at 4:50 pm still in business?

  • 196. fiona64  |  December 8, 2011 at 4:28 pm

    Did that bonehead really say that Judge Ware's ruling made marriage "worthless"? Egad.

  • 197. nightshayde  |  December 8, 2011 at 4:34 pm

    Good GOD, Man!

  • 198. JonT  |  December 8, 2011 at 4:28 pm

    Heh, I so love Boies 🙂

  • 199. Bryce  |  December 8, 2011 at 4:30 pm

    I love that they are not asking Boies any questions so he is getting a chance to just reargue the merits. This is pretty awesome.

  • 200. Alan_Eckert  |  December 8, 2011 at 4:31 pm

    They are soothed by his voice like we are!

  • 201. MichGuy  |  December 8, 2011 at 4:35 pm

    they are giving him a lot of time .. I like that

  • 202. RodW  |  December 8, 2011 at 4:35 pm

    You could hear a pin drop during his speech… uh… I mean argument!

  • 203. bjasonecf  |  December 8, 2011 at 4:31 pm

    FSM, would that I could be there!!!

  • 204. MightyAcorn  |  December 8, 2011 at 4:33 pm

    Ramen. I hope Boies argues this fluently before SCOTUS.

  • 205. bjasonecf  |  December 8, 2011 at 4:36 pm

    I hope he never has to. If he does have to, I feel certain that he will.

  • 206. MightyAcorn  |  December 8, 2011 at 4:40 pm

    I hope he doesn't either, as long as it's because we won in all the lower courts and SCOTUS denies an appeal.

  • 207. Steve  |  December 8, 2011 at 4:43 pm

    May he be touched by His noodly appendage

  • 208. PhillyKarl  |  December 8, 2011 at 6:25 pm

    May we ALL be touched by His noodly appendage. Ramen my friend.

  • 209. Alan_Eckert  |  December 8, 2011 at 4:34 pm

    Boies gets the standing ovation today!

  • 210. Alan_Eckert  |  December 8, 2011 at 4:35 pm

    Oh no I missed the joke because I was talking!

  • 211. Alan_Eckert  |  December 8, 2011 at 4:39 pm

    Thank you Jacob!

  • 212. Mike in Houston  |  December 8, 2011 at 4:36 pm

    Go, David! You are my hero!

  • 213. Kate  |  December 8, 2011 at 4:37 pm

    Finally Jenny Morse posts. And it even includes this, which is likely her conclusion, eh? 'Legal gobbledygook."
    Yep. That's what she said.

  • 214. Phil L  |  December 8, 2011 at 4:42 pm


  • 215. bjasonecf  |  December 8, 2011 at 4:44 pm

    That should not go on her resume

  • 216. Mike in Houston  |  December 8, 2011 at 4:38 pm

    Who is Jenny Morse? Is she with the haters?

  • 217. Kate  |  December 8, 2011 at 4:39 pm

    Yep. Big Time NOMbie.

  • 218. Kate  |  December 8, 2011 at 4:41 pm

    Hey Arisha! Lean over to Jenny Morse and whisper "legal gobbledygook" in her ear……..

  • 219. Bryce  |  December 8, 2011 at 4:43 pm

    "Mr. Cooper is trying to make an argument… I don't know how succesfully… that.." Wow. Sucks to be Cooper and Co. right about now!

  • 220. Alan_Eckert  |  December 8, 2011 at 4:46 pm

    What if a woman was 8 weeks pregnant and was hearing a case about abortion? You wouldn't be able to tell if she was pregnant at the time, and she would still have an option to divorce. Would she have to declare her pregnancy at the time and her intention or lack of intention to get an abortion?

  • 221. bjasonecf  |  December 8, 2011 at 4:46 pm

    His Honor should step off of Ms. Stewart!

    She, of course – as always – is not wilting.

    LOVE HER!!

  • 222. MightyAcorn  |  December 8, 2011 at 4:48 pm

    So if we follow this tangent about having to disclose NOT having an interest in a case, EVERY judge would have to disclose their sexual proclivities, relationships, and their personal opinions before hearing a case, whether those elements were relevant or not. Though the scandal rags would love that, seems to me no one would ever be "impartial" enough to judge on ANY issue. How can they even be hearing these arguments without eyerolling?

  • 223. JonT  |  December 8, 2011 at 4:50 pm

    Oh, and I love Therese Stewart too! 🙂

  • 224. Alan_Eckert  |  December 8, 2011 at 4:51 pm

    Therese Stewart is feistier than normal.

  • 225. Bryce  |  December 8, 2011 at 4:51 pm

    Wow. Ms. Stewart is MAD!

  • 226. antisaint  |  December 8, 2011 at 4:54 pm

    Um… is she missing the point, or is it just me? His argument is specifically that Judge Walker would pass this law SPECIFICALLY for his own benefit, is it not?

  • 227. Bryce  |  December 8, 2011 at 4:58 pm

    Her response is that even if that is the case–if that is Cooper's argument–it wouldn't be made about a straight person who might rule in an abortion case where the law would "SPECIFICALLY" be for her own benefit. So the implication is that heterosexuals handle the situation differently than homosexuals.

  • 228. Alan_Eckert  |  December 8, 2011 at 4:55 pm

    Because someone is in a long-term relationship does not mean that they want to get married. It means they are probably fit to get married. Big difference in Cooper's argument, and that is the wedge that our side is driving.

  • 229. bjasonecf  |  December 8, 2011 at 4:57 pm

    Cooper sounds like he is going to cry

  • 230. JonT  |  December 8, 2011 at 4:57 pm

    Is it just me, or does Cooper sound pissed in his rebuttal?

  • 231. MightyAcorn  |  December 8, 2011 at 5:00 pm

    Yeah, and it was a mistake to go there if he thought it was going to make him sound authoritative or persuasive. He sounds like a big petulant baby, and losing your cool NEVER wins you points in a courtroom.

  • 232. JonT  |  December 8, 2011 at 5:06 pm

    Not to mention his analogy regarding the Alabama case. I think he indulged in a bit too much hyperbole.

    I will definitely be watching the video when it becomes available (also to partly get what I missed during the audio dropouts).

  • 233. Alan_Eckert  |  December 8, 2011 at 4:57 pm

    If that judge's son had a pending application to the school, then there is a particular interest in actually carrying out and going to that school. There is no evidence that Judge Walker wanted to marry.

  • 234. JonT  |  December 8, 2011 at 4:59 pm

    Exactly… Where's the application for a marriage license? Hmm?

  • 235. Bryce  |  December 8, 2011 at 5:03 pm

    Duh Jon. No evidence IS evidence. Everyone knows that.

  • 236. JonT  |  December 8, 2011 at 5:07 pm

    Sorry Bryce, I forget that sometimes 🙂

  • 237. bjasonecf  |  December 8, 2011 at 5:15 pm

    He don't need no stinkin' evidence. Although, it amuses me that they brought this appeal after having learned that Walker was in a long-term relationship. That would be what, according to most people? EVIDENCE, maybe??

  • 238. MichGuy  |  December 8, 2011 at 4:58 pm

    Is he gonna cry ? Cooper that is
    He sounds like it..

  • 239. Bryce  |  December 8, 2011 at 4:59 pm

    When is the soonest time that we know of that video will be posted?

  • 240. Dee  |  December 8, 2011 at 5:03 pm

    Don't know about video, but KQED said it would post the complete audio online very shortly.

  • 241. bjasonecf  |  December 8, 2011 at 5:26 pm

    the court's website should have it by noon tomorrow.

    <a href="” target=”_blank”>

    the relevant case numbers (should they be necessary) are 11-16577 (vacate Walker's ruling) and 11-17255 ("free the tapes")

  • 242. 415kathleenk  |  December 8, 2011 at 5:00 pm

    iloved the catch in Cooper's voice at the end of his peroration. So dramatic. Idiot

  • 243. Bryce  |  December 8, 2011 at 5:01 pm

    I liked Reinhardt's response blunting the intended drama.

  • 244. MightyAcorn  |  December 8, 2011 at 5:13 pm

    Yeah, literally laughed the man out of court, an appropriate ending I think.

  • 245. Fr. Bill  |  December 8, 2011 at 5:01 pm

    Is it just me or did Cooper end on a very ugly and self-righteous tone? And that the presiding judge did not appreciate it.

  • 246. Michael K  |  December 8, 2011 at 5:02 pm

    Wow Cooper sure was trying to play on both sides of the issue with the whole "no disclosure for those that agree with our world view but the gays must disclose."

    To say nothing that they all knew Walker was gay and said in press that it didn't matter before they got their asses handed to them in the ruling….

  • 247. Str8Grandmother  |  December 8, 2011 at 5:05 pm

    I don't get why none of the attorneys bring up the fact that if Judge Walker was hell bent on getting married he had a chance to do so in that summer of love when it was legal and yet he did not get married.

  • 248. Steve  |  December 8, 2011 at 5:08 pm

    Didn't the judges bring that up themselves?

  • 249. Taylor S.  |  December 8, 2011 at 5:27 pm

    The judges did bring it up, and the pro-prop8ers made the fair point that the plaintifs also did not get married during that window, though they have been in a relationship just as long as Judge Walker.

  • 250. Str8Grandmother  |  December 8, 2011 at 5:28 pm

    Thx I missed that part

  • 251. Bob  |  December 8, 2011 at 5:36 pm

    point being ,, fix the window,, so you can enter at the appropriate time for individual couples

  • 252. DaveP  |  December 8, 2011 at 10:54 pm

    Yes, but the huge difference between our defendants and Judge Walker is that the defendants have initiated this suit, which shows that they most certainly DO want to marry. There is no evidence that Judge Walker did, or does, or will want to marry.

  • 253. DaveP  |  December 8, 2011 at 10:55 pm

    DOH! Plaintiffs, not defendants. 'skyewz me.

  • 254. Mike in Houston  |  December 8, 2011 at 5:05 pm

    Sounds like the haters lost this one. Damn, I sure hope so. Talk about a slippery slope. Imagine how the courts would be clogged with appellants trying to find some basis for saying the judge in the trial court was impartial.

  • 255. Mike in Houston  |  December 8, 2011 at 5:05 pm

    Correction: was *not* impartial. Sheesh…

  • 256. Carpool Cookie  |  December 8, 2011 at 5:05 pm

    I'm depressed.

    I hate that this stuff even has to be argued….though I know it needs to be, to keep the process secure.

    Where's my air sickness bag?

  • 257. MightyAcorn  |  December 8, 2011 at 5:12 pm

    *hugs* me too, it's stressful and demeaning, but I believe we will ultimately have the joy of victory (cue "Glee" and "Don't Stop Believin'"….)

  • 258. bjasonecf  |  December 8, 2011 at 5:38 pm

    Hate it too, Cookie. BUT you can say you were there. This is history and WE ARE HERE for it. I could never have imagined that there would be a national discussion on the validity of my existence (I always assumed – from having been told so – that I was not) AND that my existence just might be legally recognized to be as valid as that of anyone else.

    Chin up young person! We'll win. And, we'll do it together! We ARE doing it together right now!!

    Be of good cheer. You are loved. We will succeed!

  • 259. Jon  |  December 8, 2011 at 5:07 pm

    Yes, Cooper went over the top in his last presentation. Presumably because he had little else to offer. The Judge has heard plenty of big emotions in his day; his response suggests he was not impressed by Cooper's.

    Cooper and his arguments and his emotions were all given their day. No one can say his side was denied. They spoke, they got listened to, they were free to offer their best argument. His last argument was basically that you're a monster for making Judges out to be not human if you think they're not influenced by their interests in the outcome of a case. The tiny problem with this argument: but we've already considered that, what you have to establish is particularized, relevant, interest, that previous cases and judges have deemed an obligation to disclose. That leaves open the question of whether your side has established it; the rest is irrelevant.

  • 260. Carpool Cookie  |  December 8, 2011 at 5:11 pm

    "No one can say his side was denied. They spoke, they got listened to, they were free to offer their best argument."

    They laughed, they cried….

  • 261. JonT  |  December 8, 2011 at 5:57 pm

    "They laughed, they cried…. "

    They lied, people died…

  • 262. Mike in Houston  |  December 8, 2011 at 5:08 pm

    Great job, guys!

  • 263. MightyAcorn  |  December 8, 2011 at 5:17 pm

    Yes, many thanks!!!!

  • 264. MightyAcorn  |  December 8, 2011 at 5:19 pm

    "Histrionic" is exactly the right word, Jacob, good goin'!

  • 265. Alan_Eckert  |  December 8, 2011 at 5:22 pm

    J Ro mo still hasn't posted a "live" feed update in an hour.

  • 266. Str8Grandmother  |  December 8, 2011 at 5:30 pm

    What is the point? It would simply say legal gobblygook.

  • 267. JonT  |  December 8, 2011 at 5:58 pm


  • 268. Alex  |  December 8, 2011 at 5:24 pm

    When will the video from todays hearing be released?

  • 269. Alan_Eckert  |  December 8, 2011 at 5:33 pm

    Tomorrow most liekly at noon Pacific. Keep an eye out on the P8TT site and the facebook page here:

  • 270. Taylor S.  |  December 8, 2011 at 5:29 pm

    I find the point Cooper tried to make about how the plaintifs have put forth that them being in a long-term committed relationship is about how that is why they want to get married. Therefore, if Judge Walker is in a long-term committed relationship, then he too must want to get married. But that's not why the plaintiffs bring up those facts. They bring up those facts to show that these homosexual relationships are just as successful and normal as heterosexual ones. I don't think our side has ever said, "Well, they've been together for 8 years, so I guess that's why they want to marry."

  • 271. hadIt  |  December 8, 2011 at 5:30 pm

    I would love to have a replay of this for my partner. Will there be a posting some where?

  • 272. Alan_Eckert  |  December 8, 2011 at 5:34 pm

    Keep an eye out on the P8TT site and the facebook page here:

  • 273. Patric  |  December 8, 2011 at 5:31 pm

    So the hearing ended at 4:50pm? Or is there another page I'm missing out on?

  • 274. Taylor S.  |  December 8, 2011 at 5:50 pm

    Yes. Oral arguments in appeals are kept quite short. 30 minutes a side, if I'm not mistaken.

  • 275. Str8Grandmother  |  December 8, 2011 at 5:33 pm

    One thing I liked is Teresa Stewart said several times and in many ways, quit discriminating against gays. People who are gay are NOT inferior.

  • 276. Kevin  |  December 8, 2011 at 5:35 pm

    I had no idea that Ted Olson's wife was on Flight 77, which crashed into the Pentagon.

  • 277. Str8Grandmother  |  December 8, 2011 at 6:08 pm

    Sadly it wasn't Olson who was on the plane but his beloved wife who perished. He remarried not to long ago.

  • 278. Charlie Galvin  |  December 8, 2011 at 5:53 pm

    It seems to me that at least two of the judges were dubious about unsealing the video recordings. I will be surprised if we win that one after what I was hearing. But none of them seemed like they were buying Mr. Cooper's argument that Judge Walker had an obligation to recuse himself. My predictions: Videos remain sealed, motion to vacate denied, standing of proponents granted, Walker's judgment upheld, but stayed until it goes to Supreme Court, and proponents will take it there so fast the boom will shatter every window between here and Washington.

  • 279. Casey  |  December 8, 2011 at 6:03 pm

    I am thinking your projected path is the most likely assumption. Then we have the question of whether the SCOTUS will accept the case, and if so, how long it will take……sigh.

  • 280. Taylor S.  |  December 8, 2011 at 6:04 pm

    I think you're spot on. I wish the 9th circuit would turn this over fast so that we could get on the current SCOTUS docket, but I doubt that's going to happen. :/

  • 281. Drpatrick1  |  December 8, 2011 at 6:50 pm

    Agreed, except not sure 9th will stay for more than a week at most. When, not if, they rule on the merits in our favor, they will b saying that we all have this fundamental right. How could they then grant a long stay waiting to see if SCOTUS takes it up. How many Couples will miss their chance at equality while this drags on?

  • 282. James Sweet  |  December 9, 2011 at 6:22 am

    The 9th will probably issue a relatively short stay, given SCOTUS the opportunity to extend the stay themselves until they can hear the issue. At least I think that's how it often works.

  • 283. Jacob  |  December 8, 2011 at 7:22 pm

    And if the ruling is somehow limited to California, the US Supreme Court may just leave it at that. Why, if all the stars aligned, there could be marriages here again before spring…

  • 284. Alan_Eckert  |  December 8, 2011 at 6:04 pm

    There is a chance to appeal the unsealing of the tapes to either 9th Circuit en banc or the Supreme Court. The day is not over on that issue!!

  • 285. Taylor S.  |  December 8, 2011 at 6:45 pm

    Since they consolidated the cases, would this mean a review of the entire ruling, or can you do an en banc for particular pieces? I honestly don't think it's worth pursuing at the sacrifice of the progress of the entire trial.

  • 286. Alan_Eckert  |  December 8, 2011 at 6:53 pm

    They are separate cases with different case numbers. They only put them together today to make things easier on everyone so they didn't have to gather at the courthouse twice.

  • 287. Bryce  |  December 8, 2011 at 6:58 pm

    When cases are consolidated, they are consolidated permanently. You can't really appeal one at one time and another later.
    But, the consolidated cases were the motion to vacate and the main appeal on the merits. So they can appeal any decision on the video tapes entirely apart from the other two.

  • 288. Taylor S.  |  December 8, 2011 at 7:11 pm

    I see. Thanks! I knew one of the three hadn't been consolidated. I had forgotten which.

  • 289. Str8Grandmother  |  December 8, 2011 at 6:11 pm

    I admit to feeling a little bit uneasy with the Judge is gay appeal. Reinhardt especially kept repeating Coopers position about Judge Walker having a "particularized" interest. Maybe once I see the tape I'll settle down, but I am a bit uneasy.

  • 290. Taylor S.  |  December 8, 2011 at 6:33 pm

    I'm also a little woosy about it, though I can't put my finger exactly on why. I think since the judges didn't really question us on the initial argument, we didn't get many hints into what they were thinking about our side. That being said, few questions usually indicates agreement more than disagreement.

  • 291. Jacob  |  December 8, 2011 at 7:19 pm

    I really think Reinhardt was just trying to give the lawyers something to argue about, since otherwise there wouldn't have been much of a conversation. It seems to me they're not silent when they disagree in some way with the argument being presented. If it were contentious, they would have talked around it a bit more. Instead, they spent most of their time talking about what Cooper's position was–not whether it was any good.

    I'd be hugely surprised if they vacated the decision.

  • 292. Charlie  |  December 8, 2011 at 6:15 pm

    This is IMPOSSIBLE to follow.

    It needs to be redone with the poeple's names and in an order that you do not have ot read it in reverse for those of us who weren't abile to follow along live.

  • 293. grod  |  December 8, 2011 at 9:37 pm

    Charlie, it's indeed frustrating to read from bottom to top with the names of the players in this drama being abbreviated, as was some of the texting. BUT, it’s not clear that you appreciate the effort of Rick, Jacob and Arisha, each contributing instant messaging, with Adam providing an ongoing overview. They did an extraordinary job – exceeding what was promised! – and the format being a small inconvenience to me. Perhaps you are expecting too much of this ‘in-the-moment’ medium. I believe the audio will be available, as will be a synthesis and analysis. Perhaps the reordering of the sequence of the text, and filling in names etc could be your contribution to a momentous day. Or maybe Courage Campaign will see the value in using its limited resources to cleaning it up as suggested. For me, the short-hand style will always remind me of the power of getting out the message as it is happening, as well as the dedication of people to a cause, and the motivation to make promises happen. I applaud their efforts. Just saying.

  • 294. Jimi  |  December 8, 2011 at 6:22 pm

    at the end, cooper was just downright insulting to the judges.

  • 295. Str8Grandmother  |  December 8, 2011 at 6:32 pm

    I think Coopers ending remarks were well thought out in advance, he knows that this is being taped. This will show up in a commercial, something with dark clouds and ominous music. Wanna bet?

  • 296. James Sweet  |  December 9, 2011 at 6:18 am

    Yep, I also noticed some of the final comments sounded more like soundbites than legal arguments. Which I suppose is no surprise given what we've known all along: I mean, the appellants are lawyers too, they surely knew that the appeal questioning Walker's impartiality never stood a snowball's chance in hell. Clearly, the primary reason for that particular appeal is to manufacture outrage among their donor support base.

  • 297. allen  |  December 10, 2011 at 2:36 pm

    I almost saw a look of regret as soon as he gave his 'dark day' line… almost..

    He did look obviously uncomfortable with everyone laughing at him, that's for sure.

  • 298. MightyAcorn  |  December 10, 2011 at 3:30 pm

    It was a major faux pas to make ominous threats at the end of the game, especially since Cooper's Gravitas Quotient is right up there with PeeWee Herman's, or any one of the Kardashians. Do we call that a "law pas?"

  • 299. Taylor S.  |  December 8, 2011 at 6:50 pm

    Totally self-serving comment to follow:

    I did Mock Trial in high school, and the first year I did it I was arguing a pre-trial motion to suppress evidence based on the 4th amendment. I argued second. The first "lawyer" got interrupted with questions through the whole thing. I got to give my speech…I mean argument…without a single question. I, of course, freaked out not knowing what that meant. The judge then gave an impassioned approval of my motion. It was a REAL judge, so I like to think the logic that no questions=agreement applies. 🙂

  • 300. mikeholzman  |  December 8, 2011 at 8:19 pm

    Great job today on the blog and feeds. I couldn't get away from the office and had to follow along on this site. You all do a great job and I'm proud to support your efforts. Keep up the work.

  • 301. Tasty Salamanders  |  December 8, 2011 at 8:49 pm

    While many people seem to be thinking they won't release the tapes, is it possible they could do a censored release? eg. The Proponents have been claiming harm could come to their witnesses so cut out the parts containing their witnesses and release the rest?

  • 302. Taylor S.  |  December 8, 2011 at 9:38 pm

    The judges didn't buy the argument that the release could create harm, but instead focused on the fact that Judge Walker said that there would be no public broadcast of the footage. The panel seems to think releasing them=a public broadcast, and therefore should not be released. The harm argument quickly became irrelevant.

  • 303. DaveP  |  December 8, 2011 at 9:36 pm

    Just got home from SF after attending the hearings today and sharing dinner with some P8TTers – – – Aw crap! There's a HUGE live blogged article (thanks Adam, Jacob, Arisha and Rick!) and there are already 293 comments! It's already too late to dive in tonight so for now I'll just say thanks to P8TT, and I'll check back after I get some sleep.

  • 304. James Sweet  |  December 9, 2011 at 6:16 am

    So just as I predicted, the court did not take kindly to the suggestion that Walker was impartial.

    I was a little surprised by the line of reasoning the panel employed regarding the release of the tapes, as well as how strongly they seemed to signal their intent not to release them. OTOH, I have to say I did find the argument somewhat compelling… it's made me think twice about whether releasing the tapes really is the "right" thing to do. It is certainly in the public interest, and would help force these dickwads to be accountable for their hateful words… but I understand why the court feels it threatens judicial integrity. There's a point to be made there. As to which concerns weigh heavier, I think that's a personal judgment call.

    In any case, although releasing the tapes would have an impact, it would not have nearly the impact as if the original trial had been broadcast live.

  • 305. Wolfinlv  |  December 10, 2011 at 7:50 am

    Let's see… OJ's case was televised, Many cases are televised… If one is brave enough to say that the GLBTQ causes earthquakes, floods, hurricanes, mass bird deaths and the destruction of marriage and the downfall of western civilization One should be brave enough to be televised in court testifying to that effect. After all isn't their whole argument based on a book that tells them to stand out no matter what and testify to their gods power and their saviors grace and goodness and to deny that in any way will earn them eternal damnation… so if they are doing "his" work then be proud about it and don't worry about the retribution for surely "he" will protect you… or if not at least give you a bigger room.

  • 306. Prop 8 Trial Tracker &raq&hellip  |  December 10, 2011 at 9:01 am

    […] you’ll know that we’ve been pretty focused on the lead up to yesterday’s Perry hearings at the 9th Circuit.  Here are a couple of stories significant to our community that made headlines […]

  • 307. Prop 8 Trial Tracker &raq&hellip  |  December 27, 2011 at 4:02 pm

    […] One of the most popular Golden Oldies requested was the recent live-blogging coverage of the 9th Circuit hearing on whether to release the tapes and overturn Judge Walker’s decision that Prop 8 was unconstitutional because of his sexual orientation. The live-blogging can be found below. You can click to read the rest below the fold. Comment thread can be found here. […]

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