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At the AFER Press Conference

By Rick Jacobs

I’m at the American Foundation for Equal Rights (AFER) press conference. The set is a replay of the set at the opening press conference in May 2009 in LA when AFER publicly launched itself and the case.

Andy Pugno, General Counsel of (the oxymoronic) Protect Marriage opened by saying that now the judge can rule. Cooper said he awaits the judge’s ruling so this case can go to its next phase. Cooper ran out unwilling to take questions. We know he has no answers.

Now Austin R. Nimocks, the guy from the Alliance Defense Fund is trying to answer a question about the dangers that Charles Cooper mentioned over and over. He said that it’s about protecting the institution of marriage.

Pugno says that the court rests on the scrutiny issues.

Questioner says the argument you made says that marriage is to protect people who want to have children and those children. How does this work with married couples who cannot or do not procreate? ADF guy says that mothers and fathers are needed. And no public policy is perfect, not for stop signs, or traffic or marriage, but 99% of kids are born from opposite sex couples.

Pugno says that only a man and a woman can inadvertently have children. That’s why the state wants them to marry.

Questioner: Are you saying that ss couples cannot procreate?

Pugno: You don’t understand my answer. Let’s move on. Only men and women can procreate.

Q: SS and opposite sex couples can engage in irresponsible sex.

Pugno: Courts have right to channel (there he goes again).

Nimocks: Defending Prop. 8 is playing defense. Judge not necessarily critical of our not having witnesses. We did not need to have any. All we have to do is have rational basis. We do. Someone may not agree with that basis, but it’s still rational.

Q: Cooper said end of marriage would lead to end of society.

Pugno: I think he was quoting from Supreme Court. All of these questions are great for legislative debate where we change hearts and minds. We don’t ask judges to substitute their will for the will of the voters.

There is a phalanx of cameras here, at least 12 big TV cameras and another dozen small ones plus many, many stills.

Chad and Ted Olson and David Boies and the plaintiffs took the stage. Everyone applauded wildly. Chad is speaking. He said this is not a political campaign with bumper stickers and ads. The law and facts mattered here and the other side had trouble with that. At its core this case is about every person being treated equally. Equal protection is founding principle of country. Plaintiffs want same rights—not special rights—same rights.

I want to thank these plaintiffs before you who represent their own families and so many others across the country. I also want to thank Olson/GibsonDunn and Boies/Boise Schiller. We have become a family and we’re staying together until we get equality.

Kristin Perry thanks Chad and AFER and Ted and David for leading a legal team the likes of which we have never seen and not for a better cause. You gave two moms our day in court. Sandy and I just want the same thing everyone else has. That’s all the case is about: fairness and equality.

Paul Katami thanks everyone. Jeff and I are ordinary Americans. We work hard and pay our taxes. We want fairness. That’s all we ask.

Olson came up and grabbed Boies. “I don’t do anything without David Boies.”

Boies said, “One thing he did without David Boies was the best argument I have heard in 45 years.”

Ted thanks all the folks in both firms, AFER and the plaintiffs. We could not in this country stand any longer without doing something about a proposition that gets placed into the constitution that prohibits people from entering into the relationship that the Supreme Court says is the most important relationship.

I grew up in CA, now live in the east. Chad and the Foundation and so many others—so many names I won’t start going through them all. Every day, David and I have had in mind our clients. We don’t do a thing without thinking about them, about fighting for them. We want the judge to see that on our faces is the interest of our clients. Clients got out there everyday and put their faith in us. Very courageous people. They stand for millions as Chad has said.

We put together a team of lawyers that tries to live up to the promise. We’re a few steps ahead of where we were a year ago. Judge offered to have cameras in courtroom but Supreme Court did not allow. If there was ever a trial in the history of our country that the American people should have seen it was this trial. To see our clients stand up there and talk about their feeling and families was heart wrenching for everyone.

TO hear the most prominent experts in the world talk about discrimination and the history of marriage was terrific. Judge was one of most competent I have ever seen. He moved us along, but he gave us the opportunity to establish a record for the appellate courts and the American people.

Working with David Boies an honor. I said in my closing statement that they had few witnesses on the other side because many of them learned in deposition what it means to be cross-examined by David Boies. Two showed up and they understood why the others did not show up.

I feel very good that we did as good as we could.

Boies said if ever there was trial that should have been televised, it was this one. If it gets out of the darkness, people will be fair and this will all end. Thanks to Chad. No case without him. This has been a challenging, enormously gratifying case. I understand that when Ted finished in overflow room, people cheered. It’s now in the hands of the judge. We made a great case. I’m very hopeful that the facts and the law really will matter in this case. Facts and law are on our side.

[UPDATE 5:25]

Q: Is this the case that will go to the Supreme Court?

O: I believe it is. It is California. There is no other case in federal court that challenges a state. Whether or not we win or lose, we will appeal, I cannot imagine the other side won’t. Someone will bring this to the Supreme Court.

To your other question, of course it is civil rights. Supreme Court said marriage is key right. It also said intimate private sexual matters are a right. How can you then not say that marriage is not linked to that?

Presumptuous to say how judge will rule. Top graduate of Stanford. Chief judge. Been on bench for 25 years. Was at a law firm. I’m confident that he’ll do the best job he can. I don’t know how he’ll rule. He could rule on a narrow basis because California has such a bizarre set of rules.

I don’t know how long it’ll take him to rule. It’ll take him as long as it takes. He gave us 39 questions. He’s a very thoughtful judge.

Ocamb asks questions.

Olson: You sensed how passionate I was in this trial. There may have been a few times when I had more emotion running through my body, but felt that way all day today and most of time in trial. I need to be able to convey those emotions to the judge. Partially academic exercise because we are talking about the law. I think about discrimination.

Boies: I have no answer to the 18,000. Assuming that the plaintiffs win, what should remedy be? Answer they came up with, invalidate the 18,000 marriages. No one knows how they came up with that. I won’t predict, but I will make one prediction: the 18,000 marriages will not be invalidated.

(I paused to talk to Cleve. I missed a couple of questions.)

O: One of the judge’s questions was how did we get to this traditional view of marriage between a man and a woman. It is not correct factually that it has been that way which is why our opponents did not bring it up today.

Intimate relations, spirituality, family are not connected to their definition of marriage. It has nothing to do with it.

I could go on and on, but you heard the closing arguments.

Thank you.

58 Comments June 16, 2010

Liveblogging Closing Arguments: Part VI

By Rick Jacobs

This should be the last thread of the day, with the plaintiffs up to rebut the defense’s arguments.

Judge Walker: Mr. Olson, let’s pick it up there. Isn’t the danger that you might win this case? That happened thirty years ago and continues to fester in society. Isn’t the same danger present here that society will still be restive and unsettled?

Olson: I believe the cases to which you refer are to abortion. The arguments we look to are civil rights. Look at the Loving case. The Supreme Court struck down 15 or 16 anti-miscegenation statutes in 1967 unanimously. Looking back only 43 years, we see that it was a felony in Virginia to marry another race.

O: The same arguments were made to MLK, Ruth Bader Ginsberg and Thurgood Marshall. I know that Mr. Cooper wishes he could take those words back, “I don’t know.” He could only get two witnesses into court because they did not want to be cross-examined by Mr. Boies and some did not come because they were cross examined by Mr. Boies (Laughter).

O: Mr. Cooper sites from books of people who would not come into court to be subjected to the judicial process. Mr. Cooper used a new term today, that the State of California is in the business of channeling us through marriage, I’ve never heard of that. (Laughter). He says that gays and lesbians are a threat to procreation and that channeling function if you accept that channeling is a function. 14 Supreme Court decisions, testimony of Dr. Kott, other experts say that marriage is not an issue of 30 years, but older than the bill of rights.

O: Mr. Cooper says first you have to accept my definition that marriage is between a man and a woman and marriage between man and man or woman and woman would change definition. Of course it did because you defined it. How does it help to keep gays and lesbians out of the club?
O: It turns out that Mr. Blankenhorn has some things to say. Mr. Cooper wants him to stay as an expert in this case and we’ll accept that because it turns out he’s quite helpful to us. (Laughter).

(Plays Blankenhorn testimony: “heterosexuals did the deinstitutionalization. It predates the discussion of gays and lesbians marrying.”)

O: Dr. Kott points out that no fault divorce led to higher divorce rates. So much for the channeling function! Mr. Blankenhorn did testify that gays and lesbians have nothing to do with the increase in divorce rates and good for him that he came here to be cross examined.

(Plays Boies: you did not mean to imply that bio parents are better than adoptive? Blankenhorn: No. Boies: In fact, two bio parents… Blankenhorn: IN fact adoptive parents on some outcomes outstrip bio parents in providing better care for their children.”)

O: Well, there you have it. Children in same sex families are better off, maybe, than those of natural. Or maybe not. Blankenhorn says that if ss couples can marry better off still.

O: Now a word on pro-creation. What if the state changes its mind? There are governments that have ruled that too much pro-creation is bad. If CA so decides in 10 years, would the state have the right to cut off marriage? No. None of the cases to which Mr. Cooper referred, including Maynard, referred to divorce, mandatory leave for public school teachers, family occupancy of homes, prisoners, and the last case in Texas which ruled for homosexuals. Mr. Cooper cites Justice Stevens in Bowers and then he is in the majority in Lawrence. IN other words, his earlier opinion really reversed and confirms that marriage is not about procreation. That’s what the oracle of justice, Mr. Stevens said. It’s not about sex.

O: Why are we all of a sudden talking about SS marriage? It’s no longer against the law to work for the federal government if you are a homosexual. It’s no longer against the law in most places to go into a bar if you are a homo. It’s no longer considered a disease. Even some of that stuff was in the Prop. 8 ads. With this changes in society, no wonder people are talking about marriage.

[UPDATE] 4:02

Judge: 1967, it wasn’t 41 states – it was about 14 or 15 states that prohibited inter-racial marriage. 27 states removed the restriction and in that first one, there was already a political tide running with respect to inter-racial marriage and the Supreme Court took note of that. Now, do we have a political tide that is going to carry to the Supreme court?

Olsen: I believe your honor that there is a political tide. But that does not justify saying that the polls need to be a little bit higher before change, because even if they change it here in California we still have to go to every state. There will never be a case with such a wildly crazy system like California had, there will never be case like Romar. The right to privacy is the same right we’re talking about in the context of marriage.

The most compelling thing that I’ve read on that subject were the arguments made to Dr. King – people saying that the people weren’t ready, that there would be backlash – and his letter from a Birmingham jail about why we can’t wait any longer. The threat of irresponsible procreation – what does that mean? I can’t figure out what that means. Because the clients that I represent are not irresponsible procreators; on the other hand, heterosexual couples who have sex outside of their marriage are a much bigger threat to the institution.

We had a discussion about the motivation of the voters and whether the procreation protection goal part of the reason that voters approved Prop 8. Mr. Cooper cited two exhibits during this poriton, but we looked at those 2 exhibits and protecting procreation was not mentioned in either of those (he’s referring to the voter guide and Prop 8 campaign). I could not find the words procreation….I could find the phrase “activist judges” (laugh), what I also could find was about protecting children. Protecting children is the argument that proponents made and I submit that is discriminatory animus.

[UPDATE 4:04]

O: We relied on a definition of marriage as I pointed out was supported by 14 Supreme Court decisions on privacy and other issues. Mr. Cooper has cited some appellate court decisions. With all due respect, the 134 year history of Supreme Court rulings on marriage trumps that. Then we had experts testify on immutability—all kinds of evidence on that. No idea how my opponent can say it’s a matter of choice. Some people may change. But it’s a characteristic and the experts testified. Supreme Court decisions, testimony by eight of the best experts in the world and the animus behind Prop. 8 and then Mr. Blakenhorn came over to our side (laughter).

O: Then Mr. Cooper cited High Tech Gays case was in 1990. I must have heard that in his testimony six or eight times. It relied on Bowers. Bowers has since been reversed by Texas. Cites case that talks about immutability. Points your honor to 9th circuit opinion which guides.

O: No we get to gender discrimination. Choice of gender of whom you want to marry leaves some out. It’s about a fundamental right to marry, not to marry in June or some other time, but to marry whom you love. Can’t rely on post-hoc. We have to take a group of people who have bee victims of discrimination and we want to foreclose them from a basic right_ marriage. Strict scrutiny, rational basis or something in between, you have to have a good reason to take those rights away. “I don’t know” doesn’t cut it when you take a basic right from a group is not good enough. 14 Supreme Court cases, including Romer and Lawrence that says sexual orientation is private. You cannot say that we are taking away the intimate rights and take away your freedom to marry. Not acceptable under our constitution.

O: Mr. Blankenhorn is right. The day that ends, America will be better off. Thank you, your honor.

J: Very well. I’ll remand.


[UPDATE 4:09]

After nearly three weeks of testimony and a day of final arguments, it’s over. Now it’s all up to the judge. All.

Ted Olson just wrapped the whole thing up with these words: “I don’t know doesn’t cut” when you are removing the fundamental rights of an entire group of people.

I’m going to go hug folks. I almost cried. I have to think. We have our work to do. Everyone has to know.

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38 Comments June 16, 2010

Liveblogging Closing Arguments: Part V

By Rick Jacobs

Fresh thread time. More of Judge Walker trying to get Cooper to make a legitimate argument.

Cooper: To come back to the immutability case, the 9th circuit said, “sexual orientation is not immutable.” Against the Supreme Court cases, we know of no case that sexual orientation meets heightened scrutiny. The characteristics of immutability simply do not apply to sexual orientation. Behavioral, attraction and self-identity are the three definitions that the plaintiff’s experts used and depending upon which you use, a different group falls into that, so the definition is not clear. The plaintiffs made clear that sexual orientation does change over time, especially in women. Peplau commented on the “astonishing elasticity” of women, whose sexual orientation changes many times over their lifetimes. Some 2/3 of women who identify as homo have changed their orientation at least once and 1/3 more than once over their lifetime.

C: Goes to Supreme Court question of immutability. Justice Ginsberg says, “Immutability is tightly cabined. Goes solely to accident of birth.” Heightened scrutiny goes to race, gender, illegitimacy, all accidents of birth. Ginsberg says, “Doesn’t say something can’t be changed.”

Judge: Does this have to do with national orientation?

C: Yes.

J: Sometimes of the year everyone is Irish. (Laughter). People may choose via an ancestor to have a national origin. These questions of immutability are not key.

C: Well, we then look at political powerlessness. We submit that gays and lesbians are not politically powerless as Dr. Segura says. Clearly in the Cleveland case in regard to mentally disabled, does the group have the ability to attract the attention of the lawmakers? 20 years ago in “high tech gays?” the court ruled that gays and lesbians can attract the attention of legislators. As Dr. Segura testified, since that time there has been a sea change.

J: Isn’t that the most important factor, the historical context? Women are hardly politically powerless, yet a law protects them, laws that single them out subject to strict scrutiny. African Americans have considerable power and yet a law that singles them out is subject to strict scrutiny. Isn’t the historical context what makes the point?

C: It’s an interesting question. Here’s a group whose political power has changed so dramatically (women). In 1970 and 1973 when the court had before it the political power of the group (women) needed extraordinary protection from a majoritarian electorate so they needed protection. At that time, only 2% of the offices held by them but 50% of the population. That’s not the case with gays and lesbians in California.

J: The DOMA Statute that has been mentioned, Prop. 8, exclusion of gays and lesbians from military for a long period of time, all indicia of discrimination?

[UPDATE 3:00]

J: P8, these other props in other states, the exclusion of gays and lesbians from military service – aren’t those all indicia of a long history of discrimination?

C: We have never disputed that gays and lesbians have been the victims of a long and shameful history of discrimination. Thankfully, the situation today in 2010 is not what it was in the past. The fact of a history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny.

The question of political powerlessness was very different 20 years ago, but the 9th Circuit nonetheless believed that gays and lesbians could attract the attention of the lawmakers; thus, it follows that it must be true today.

Even though mental disability is an immutable characteristic, the disabled could not qualify for heightened scrutiny because the court found that they had political power (could attract the attention of lawmakers), sure they had to rely on allies to create that political power. If the mentally disabled weren’t politically powerless, I would submit that gays and lesbians are definitely not powerless. I submit that Court’s that have decided against heightened scrutiny have been correct.

Long pause….

j: Why should Mr. Blankenhorn’s testimony qualify as expert testimony. Does he meet the standards?

C: I submit that he does. I don’t have anything to add to the submission we made earlier. Under the 9th circuit standard of the qualification of an expert, he is amply qualified. His professional life for 20 years have been devoted to the study of marriage – the potential parenting structures, the potential for harm to marriage due to a variety of social phenomena, including same-sex marriage, he’s written books that have been received with respect by recognized experts.

J: Were they peer-reviewed?

C: No.

J: Am I correct that the only peer-reviewed article of Blankenhorn was not on the subject of marriage?

C: Sir, as I stand here right now. I don’t know…don’t remember.

J: Fair enough.

C: I didn’t come here prepared to argue that particularly. May I request a 5 min break?

J: Why don’t we take 10 minutes….back at 3:10.

[UPDATE 3:27] from Rick

(Here’s a bit of commentary and some color from the break while Arisha does the hard work.)

Bruce Cohen, the Academy Award-winning producer and key figure behind this case, said to me,” Can you believe that they are pointing to the one court ruling banning gays and lesbians from adopting (Florida) as their standard?” As Bruce said, there are only two states that ban adoption by gays and lesbians—Florida and Arkansas. Yet Mr. Cooper is saying Judge Walker should refer to that ruling for guidance here.

Kris Perry introduced me to her two wonderful, poised teenage sons. I also had the honor of meeting Kris’s mother. Of course ___ Steer was right there, wondering with all of us what Mr. Cooper is really filibustering about. Can you imagine being the subject of this case and having your kids and your mom sitting there with you throughout all of this? Imagine these young fellows, who have such wonderful, loving, caring parents, hearing a high-powered, gray-haired lawyer pontificating about how horrid lesbian mothers must be? I really can’t. It’s not removed at that point.

One distinguished lawyer (not on the legal team) said, “The only thing he has is the strict scrutiny test which has never before been applied to marriage equality.” He went on to say, “What he said about Loving is bullshit. The only reason society had to prevent black and white people from marrying was procreation. Society did not want mixed-race kids.” That’s right. Society did not want Barack Obama to be born.

Cooper has surrendered, really, on all of the other issues. He’s trying to say immutability is not assured, but the judge pointed out that that does not really matter here. And even though the judge keeps bringing this back to marriage as a right vs. sexual orientation, he keeps trying to say it’s about sexual orientation because that is his canard.

Short notes: Maggie has her shoes on. Lance Black is watching intently, having not been absent for a second of this. And there to my left is the (oxymoronic) Protect Marriage gang that sued us in January for having a logo that they say is indistinguishable from theirs even though ours has two women with two children instead of a man and a woman. That’s the point of the whole thing. There’s no difference. It’s about the right to love.

[UPDATE 3:33]

C: The US Supreme Court in Crawford vs. Bd. Of Education in 1982 upheld a California constitutional amendment that reduced the remedial tools given to the courts in the school segregation area. In that case the court rejected the contention that once a state chooses to do more than the 14th Amendment requires that the state could not return the “lower” federal standard.

J: What do we make of that in the context of this case? What baring does that have?

C: The California Supreme Court’s interpretation that we believe goes beyond the 14A, was something that the people of the state were empowered to reverse. The people of California are the ultimate appellate tribunal of the California Supreme Court. The Court’s decision was no more final in the state of California than the Appellate decision that upheld Prop 8. It was reviewed by the ultimate, judicial tribunal and the judgment of the Supreme Court in Crawford is on point here.

C: I also want to address whether there is a legit basis for California citizens to be concerned that redefining marriage to include same-sex couples, does not show concern for the potential harm to the institution of marriage or show respect for the role that marriage is supposed to play (procreation, again). Redefining the institution will change the institution. Blakenhorn, our expert, said if you changed the definition of a thing, it’s hard to imagine how it would have no impact on “the thing.” Others have acknowledged that change will result. [He quotes a few “experts” who believe gays marrying will change the institution.] Redefining will divorce the institution of marriage from it’s core procreative purpose. It is not possible to predict with certainty what that change will beget. It seems undeniable that change as profound as this one, would have some consequences. The plaintiffs think that the consequences will be positive; we respect that point of view, but it’s not something that they can possibly prove – and their own expert (quoting Cott now) agrees that we can’t predict. Andrew Churling, a sociologist and equal marriage supporter, also states that “predicting the future of marriage is risky business.” He cites as example the fact that no sociologist forecasted the baby boom during the Great Depression; no sociologist predicted the rise of co-habitation.

Let me say 3 words that I haven’t said that often. “I don’t know.” Jokingly, I wish I could have those words back. Because usually whatever your question is, “I damn sure know.” Courtroom laughs.

J: What about Blakenhorn’s testimony about the negative outcomes that will result if gays can marry?

C: Blakenhorn was giving voice to sentiment that the threat of harm to vital social institution is too daunting to run the risks of gratifying what would otherwise favor the advent of same-sex marriage. There are many who went to the polling place with that sentiment – that’s my speculation. There are millions of Americans who believe in equality for gays and lesbians, but draw the line at marriage. Their hearts are pure – as pure as the plaintiffs – but they still believe that this is profound…could be profound. It could portend some social consequences that would not be positive and that reality

C: No one can know what tomorrow will bring. If there is a legitimate and rational basis to be concerned about that, couldn’t be more rational for people of California to say wait. We want to see what happens in Mass. and here. Perhaps Mr. Olson and his client’s whose sentiments are powerful (he’s speaking very haltingly) will be able to convince their fellow Californians they are right.

J: A disability has been put on marriage. Do you not have to show that there is need, that it’s enough to impose on some citizens a restriction from which others do not suffer? Is it enough to say “I don’t know?”

C: Yes. In looking at what society’s interests are and interests in regulating and caring and about marriage, if there is no basis for drawing a distinction from one to another, the distinction can’t stand. But if there is s distinction, it must stand. It’s been our position from the outset that we do not have to prove that exclusion of gays and lesbians from marriage is a problem; we only have to prove that inclusion of those people would erode marriage.

J: Would you wrap up?

C: Yes. (Pause) The California court (missed which one) goes to the heart of the matter. It is the proper role of the legislature to set priorities and make difficult and imperfect decisions and approaching problems incrementally.” That process is at work in this state and the county. As the court considers this, there is a debate about the morals, the practicalities and the wisdom that really goes to the nature of our culture. The constitution should allow that debate to go forward among the people. Thank you.

J: Thank you Mr, Cooper.

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113 Comments June 16, 2010

Liveblogging Closing Arguments: Part IV

By Rick Jacobs

The last thread was getting a bit long so here is a new one.

Cooper: Only 16 states had a prohibition against inter-racial marriage. They actually made people have illegitimate children. The purpose of marriage is to have legit children. This racial restriction is at war with that purpose.

Judge Walker: Why isn’t the prohibition of marriage by SS couples at war with marriage for children?

C: Again, the 8th circuit recognized that there is a state interest. (He talks in circles) Only opposite sex couples can procreate and therefore they can minimize irresponsible procreation. When procreation between men and women not in binding vows, more frequently, society itself has to cope with that adverse consequences of that kind of irresponsible procreation.

J: But you don’t draw any distinction when opposite sex couples can conceive on their own or when ss couples require intervention, which is increasingly common. State’s interest is the same.

C: Not quite the same, no.

J: What’s the difference? If a child is born from a egg or sperm donor is society’s interest in the child different?

C: Without intrusive inquiry into fertility, society’s interests are also furthered whenever opposite sex couples are married because that strengthens the societal norms in order for this channeling function to be performed. Whenever opposite couples are cohabitating as happens now more than in previous times in history. Now we have social norms to try to channel into marriage. (He makes no, no sense. It’s not just me. He talks in circles because his only point is, as Olson said this morning, “because I said so.)

C: State’s job is to minimize irresponsible procreation. It’s not a good term, but I can’t think of a more serviceable one. Procreation that isn’t bound by social obligations than the marital one is, children raised by one parent or another, but not both. It is not a phenomenon that the court has to concern itself with with ss couples. SS couples cannot have kids by accident.

(The bailiff just made Maggie NOM put her bare feet down. She is so disrespectful)

(I just walked out to send this. Arisha, one of our organizers is teaming up with me so we get it all. A woman who is 8 months pregnant walked out with me. I said, “don’t threaten society.” She said, “that guy would be better off just sitting down and shutting up now.” (more…)

124 Comments June 16, 2010

Prop. 8 Closing Argument: Part 3

By Rick Jacobs

The judge just entered the room. We were told to remain seated.

J: Mr. Cooper, good afternoon.

Cooper: May it please the court. The NY Court of Appeals ruled that until recently it was an accepted truth that marriage could only be between heteros. When Mass had SS marriage, the court noted it was new. Why has marriage been defined the same for so long? The purpose of marriage is to channel potentially procreative relationships into a union with a man and woman so that children would be raised by two hetero parents.

Olson quoted from Maynard case which in next sentence said that the contracts law does not apply to states becasue marriage alone takes more of an institution for the benefit of the community. Uniquely imbued for the public benefit?

J: Do people get married to benefit the community?

C: Your honor…

J: When people get married, they don’t say, “oh boy, i can benefit society.” (Laughter) They say they are marrying to be with their life partner.

C: Maynard says its for social policy and for the interests of the community. Individuals don’t get married to benefit the community, but it’s the result.

J: Why does the state regulate? Why not leave it to private contract?

C: The marital relationship is fundamental to the survival of the race. Without the marital relationship, society would come to an end.

J: Why couldn’t state say marriage is a private contract. We’re not going to set down the rights. We’ll simply say you entered into a contract and we’ll enforce that contract just like any other private contract. What is the purpose of marriage?

C: It could, but why does virtually every state regulate this relationship? It’s crucial to the public interest. The procreative public relationship is a benefit and represents a threat.

J: Why does the state regulate marriage?

C: The marital relationship is fundamental to the existence and survival of the race. Without the marital relationship society would come to an end. 

J: Why couldn’t the state say that marriage is entirely a contract right? Why is it that marriage has such a large public role? What is the purpose?

C: The state regulates because this relationship is crucial to the public interest because of procreation. To whatever extent, children are born into the world without this stable (hetero) marital union, a host of very negative social implications and consequences arise. “Marriage is a license to cohabitate and produce legitimate children.”

Walker interrupts: But the state does not insist that spouses procreate?

The defense essentially admitted that procreation isn’t a necessary requirement for marriage.

J: Then the state must have some interest separate from procreation?

The defense attorney struggles to respond to this question and attempts to make a distinction between procreative relationships and all potential-procreative relationships. He goes on to argue that the simple fact that all societies and all states haven’t required procreation in no way eliminates the procreative purpose of marriage, nor does it detract from it.

He continues by posing a hypothetical question to Judge Walker: How would a society that wanted to insist on procreation, how would it go about administering such a requirement? He answers his question by saying that first there would have to be premarital fertility testing and perhaps a pledge to procreate down the line. (He was trying to make the point that such testing would be invasive – I think – but didn’t quite get there before Judge Walker continued to question him).

Judge Walker responded essentially, that if procreation was a requirement for marriage then the fertility testing/pledge that he outlined would seem appropriate.

[UPDATE] 1:23

It is Orwellian. If that is the premise for marriage, is that a proper one?

C: Is that irrational unless it insists on procreation? Is it enough that the state and society attempts to insure and increase the likelihood that naturally procreative sexual relationships will take place in stable family environments for the sake of raising children so that society itself does not have to steep in so that society does not run the risk of all of the social consequences of unwed mothers and the like.

J: If the purpose of marriage laws is for sexual relationships, there is a far more narrow way to regulate than the marriage laws.

C: Your honor, that is true, but there is a far more regulative view.

J: Parental responsibilities do not have to do with how child came into world. They extend to adopted children, in-laws, grandparents who are not in any way involved in the creation of the human being.

C: With respect to adoptive parents, it does create rights and responsibilities in their adoptive parents that are the natural results of procreation?

[UPDATE] 1:33

C: The state still has an interest in that child. The state must take responsibility for the upbringing of that child. Whether it’s extraordinary measures and the state has to take full responsibility or when the child has the bulk of the situation where this arises, the mother is still alive, but the mother and father does not have the same ability as a marital unit. (I have no clue what he’s talking about, honestly.)

C: You put your finger on the key. The state still has an interest in that child.

J: What does the evidence in this trial say?

C: What the evidence shows is that eminent sociologists…

J: What was the witness, what was the testimony? (Makes

C: The relationship of parent and child is that by which infant is protected. Justice Stevens says in his Bowers dissent that marriage is a license to …raise children.

J: Blackstone and Davis did not testify. What is the evidence in this case?

C: Your honor, Mr. Blankenhorn brought this evidence before you. You don’t have to have evidence for this. The cases bring it forth in one court after another.

J: You don’t have to have evidence? (Incredulously)

C: It’s in the cases. CA Supreme Court says institution of marriage serves the public interest because it channels biological drives for care of children. That’s the purpose of marriage in this state. Less than two years ago, the CA appeals court, said that civil society has a deep and abiding interest in child rearing. Government has an interest in marriage because it has an interest in children (refers to DOMA). Most courts have upheld the traditional definition of marriage because upholding the provision of the people of Nebraska (8th Circuit in 2006) because state’s interest is in conferring marriage on opposite sex couples who can have children by accident whereas ss couples cannot.

[UPDATE 1:38]

C: About 2/3 of judges have upheld this. The plaintiffs say THERE IS NO WAY WHY ANYONE would uphold the traditional definition of marriage except by some dark animus or bigotry. That is just not a slur on 7 mm Californians who supported Prop. 8 and a slur on 70 of 80 (?) judges who have ruled to preserve the traditional definition of marriage. Denies the will of state legislature after state legislature and judges.

J: If you had 7 mm people, why did you only have one witness and it’s fair to say that his testimony was unequivocal.

C: Not on this one. His testimony was unnecessary.

J: This goes back to your “you don’t need any evidence.”

C: Go to your chambers and look at any book and you will find unequivocal evidence that procration is the reason for marriage unless it was written by one for their experts or in the last 30 yesars. You will not find anywhere in the pages of history any suggestion that the traditional definition of marriage, ubiquitous in history had anything to do with homosexuality. People’s values with respect to homosexual conduct was never in the conversation until the movement for ss marrige?

J: What should I conclude from that?

C: Stammers, that at least a important mission of marriage is to channel the procreation of men and women into stable family units through marriage so that the children—to improve the likelihood that children will be raised that way.

J; What has changed in the last 30 years?

C: The changes haven’t.

J: But you pointed out that there is a body of opinion, point of view, that now views marriage as an option for homos. That has dev in last thirty years. Why has that changed?

[UPDATE 1:43]

C: It has become a desire of homosexuals to marry. (Maggie of NOM is sitting barefoot in the court).

J: Doesn’t that show a change in the minds of many on marriage?

C: Yes.

J: Doesn’t that affect the role of the state in the regulation of the institution of marriage?

C: Yes, it is being reexamined. Given the political process, this issue goes more to the morals and this issues is being debated in the political process. Goes to Maynard case. Leg process must grapple. Real issue for you is has something happened with respect to legit purposes of marriage to make the historic consistent and ubiquitous procreative reasons for marriage no longer constitutional?

[NOTE] This thread was getting a little long, so we switched over to a new one.

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178 Comments June 16, 2010

Lunch is Almost Over

By Rick Jacobs

It’s nearly 1:00PM. The lawyers are filing in. People are standing and talking to each other. The mood is genial, but soon we get to hear how on God’s green earth the proponents of Prop. 8 can claim that it’s somehow okay to use the constitution to discriminate against an entire class of people. I would say I cannot wait, but I just saw Anthony Pugno, the general counsel for the oxymoronic Protect Marriage walk by. I nodded at him reflexively, which I guess is what you do, but he’s running for office as I said this morning.


10 Comments June 16, 2010

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