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Tag: Charles Cooper

Back in court

By Arisha Hatch

I didn’t realize it at the security check or as I waited in the lobby for an elevator to the 17th floor of the Federal Building yesterday. I didn’t realize it in the food court as attorneys that I knew from the past approached me to see how I was doing; No, I didn’t realize it until Prop 8 defense attorney Cooper stammered and struggled to answer a question posed by Judge Vaughn Walker, that I hadn’t been in a courtroom in almost two years – since I was sworn into the California bar as an attorney.

My name is Arisha Michelle Hatch. I’m currently working as the National Field Director for Courage Campaign’s Equality Program on a project called Testimony: Equality on Trial, but I was always supposed to be a lawyer. Perhaps because my grandmother never could be or because my father wasn’t – I always knew that this was my calling.

I’ve never live logged before – didn’t expect to be live logging yesterday – and the former English-major in me can’t even bare to go back and read the threads we posted (ripe with grammatical, usage and spelling errors I’m sure). But sitting in that courtroom watching Cooper squirm, I remembered – or re-remembered, perhaps – the lawyer that I at one point wanted to be and how this equality work that we do everyday actually is so important.

You see, despite my straight-ally status my life these last few years has been at times strangely connected to marriage equality and Proposition 8.

The day after the California Supreme Court granted gay and lesbian couples the right to marry in May 2008, I found out that I failed the California bar exam for the second time. I remember the morning before I found out the exam results – how nervous I was. I knew that if I didn’t pass this time that I’d have to leave my job at the firm. I remember walking to the Oakland BART station to cross the bridge to go to work. A ladybug fell on my eyelash and then onto my hand. I took that as a sign; I decided at that moment that no matter what the result – whether I passed or failed – that I was still moving in the right direction.

I got into work that morning and the first person I saw was my attorney-mentor and supervisor Molly McKay. And she was beaming. She could finally marry, or so the court said. While working at the law firm, I knew that Molly was an activist, but I didn’t know how big of a deal she was. At the time, she kept a wedding gown in her office, sometimes draped over her door (I’d be willing to bet it’s still there now) and would say things like “you never know when you might need to get married.” That morning she was happier than usual as she gave me my daily assignment and just before I left, knowing that my scores were coming that evening, she grabbed my hand and said “I give you all my luck.”

In retrospect, re-taking the bar exam for the third time had its perks; unable to practice for 3 months while I waited for the results I started doing things that I never knew I wanted to do. One day I went in and volunteered to make phone calls for the Obama campaign, 3 months later I was working 20 hours a day for in that office – never had a moment to think about whether I passed the bar, whether I’d ever be a lawyer.

Two weeks after Barack Obama was elected President and Proposition 8 was approved, I finally passed the California bar and all I could think was that Molly had given me her luck and needed it back.

I went to work for the Courage Campaign partly because of that handshake in her office in that office that day.

I know this is long, but I wanted to explain to you (and myself) why I felt a lot of things yesterday. There were times that I wanted to laugh out loud or hiss when Cooper mentioned marriage’s procreative purpose; wanted to scream when he attempted to distinguish himself (and Prop 8 supporters) from proponents of racial segregation laws that although now gone, still affect my family in ways so subconscious that they are difficult to articulate.

But what I was most surprised by – what I’m still struggling with – is how much compassion I felt for Cooper as he attempted and failed to make a single coherent argument for his side. Maybe it’s a lawyer-thing, maybe it’s a law school thing, but I had flashbacks of moot court; that moment in a trial or during a hearing when your forced to make an argument that you know in your gut doesn’t “pass the straight-face test” because – although weak – it’s the only case you’ve got to make.

It’s a desperate feeling really; standing center-stage, naked, your argument prepared and a judge who’s only job is to find, illuminate and grapple with the weak spots.

That’s what I saw on Wednesday in that courtroom – a desperate attorney. I lost sleep last night wondering if he actually believed the things that he was saying, wondering if he was sleeping well, wondering why I couldn’t completely villainize him in my mind. And that’s the hardest aspect of this equality movement – the villains don’t look like villains. They aren’t walking around with fire hoses or batons or dogs, and when approached they seem almost meek at times, unprepared to back up their arguments, sometimes almost – almost – conflicted. Again, I don’t know what Cooper felt last night, but there’s a hopeful person in me who thinks that even Cooper will, as Langston Hughes wrote in my favorite poem, one day see how beautiful you all are, “and be ashamed.”

111 Comments June 17, 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

Prop 8 Lawyer Wants Closing Arguments Close to Cameras

By Julia Rosen

Shocking nobody, Charles Cooper from Protect Marriage and the Prop 8 side wants the courtroom during closed arguments closed to cameras. He penned letter to Judge Walker in response to the one last week from the Media Coalition. Advocate:

In a letter to U.S. district judge Vaughn R. Walker, attorney Charles J. Cooper wrote that allowing cameras in the courtroom would violate an earlier stay order by the U.S. Supreme Court, which in January blocked broadcast of trial proceedings as part of a pilot project previously approved by a judicial council of the Ninth Circuit Court of Appeals.

Karen Ocamb has the full letter up at LGBT POV (and Scribd is below, thanks Kathleen!).

This is the interesting bit, beyond the arguements over due process and other lawyerly talk.

Fourth, there is little merit to the Media Coalition’s argument that “the concerns earlier reviewed by the Supreme Court should not preclude” the public broadcast of closing arguments because they “will solely consist of the arguments of counsel—and not witness testimony or evidence.” As an initial matter, the parties may play excerpts from the video-recorded depositions during the course of closing arguments. In any case, in Hollingsworth, the Supreme Court specifically cited the findings and policies of the Judicial Conference of the United States, noting that while those policies “may not be binding on the lower courts, they are at the very least entitled to respectful consideration.” 130 S. Ct. at 712 (quotation marks omitted). While it is true that the deleterious effect of public broadcast on witnesses is one of the concerns undergirding the Judicial Conference’s policy, it is by no means the only concern. As we have explained previously, the Judicial Conference’s policy also rests on findings that public broadcast has negative effects on some judges and attorneys, including distraction, grandstanding, and avoidance of unpopular decisions or positions. Moreover, the Judicial Conference has repeatedly stressed that “the presence of cameras in a trial courtroom … increases security and safety issues” and that “[t]hreats against judges, lawyers, and other participants could increase even beyond the current disturbing level.”

There’s a lot there, so let’s unpack it.

First, Cooper is contending that since there exists a chance that video taped depositions will be aired that the whole proceedings should not be televised. That’s an easy fix. Turn off the video feed and just use the sound, or turn the cameras completely off.

The rest of it is Cooper arguing that, because the Supreme Court doesn’t like cameras to begin with, and cited some “Judicial Conference” in their original decision, Walker should listen to what the Conference says and not allow cameras in. If that is the case, then the whole pilot project for video taping other trials ought to be junked out the window. But there has never been an explicit ruling from the Supreme Court saying that cameras should never be allowed in a court room.

Note that Cooper is managing to work in a “protect us, we are victims” line right there at the end. It just does not hold water when it comes to the closing arguments. These are well rehearsed lawyers who are very used to the public eye, as is Judge Walker.

Now we wait for Walker to issue his ruling on the request from the Media Coalition.

[scribd id=31885883 key=key-1amn3l3n3xvrp9ayzrrm mode=list]

26 Comments May 24, 2010

Greatest hits from the trial

By Julia Rosen

For those of you who have not been able to read every single liveblog thread, here’s a few of the greatest hits courtesy of the fine folks at AFER.

This is what they did not want to see on TV:

I just want to get married…it’s as simple as that. I love someone. I want to get married. My state is supposed to protect me. It’s not supposed to discriminate against me.” – Plaintiff Paul Katami

Here they are damaging their own case before it even really starts:

Judge Walker: “I’m asking you to tell me how it would harm opposite-sex marriages.”
Pro-Prop. 8 Atty Charles Cooper: “All right.”
Judge Walker: “All right. Let’s play on the same playing field for once.”
Cooper: “Your Honor, my answer is: I don’t know. I don’t know.” – 10/14/09 pretrial hearing rejecting defendant intervenors’ request for summary judgment

And at the tail-end they are still hurting their own cause with David Blankenhorn, one of their two “expect” witnesses.

Blankenhorn admitted that “Adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children,” and would be “a victory for the worthy ideas of tolerance and inclusion” and “a victory for, and another key expansion of, the American idea.” He also testified that it would result in fewer children growing up in state institutions and instead being raised by loving parents and would in fact reduce the divorce rate; reduce promiscuity; improve the stability of couples’ relationships; increase wealth for families and reduce government costs; and a decline in “anti-gay prejudice” and “anti-gay hate crimes.”

Contrast that to our experts.

ILAN H. MEYER, Ph.D., Associate Professor of Clinical Sociomedical Sciences at Columbia University’s Mailman School of Public Health, testified that Prop. 8 treats gay men and lesbians as if they are “not seen as equal… not respected by my state or by my country, by my fellow citizens.”

“As I described stigma earlier, I would say that law, and certainly a constitutional part of the law, would be a very strong part of, as I described, the social structures that define stigma, that define access. In a very simple way, you can think of it as a block or gate toward a particular institution, toward attaining a particular goal. So, in that sense, it is very much fitting in the definition of structural stigma,” Meyer testified. “[Prop. 8 imposes stigma] by the fact that it denies them access to the institution of marriage. As I said, people in our society have goals that are cherished by all people. Again, that’s part of social convention, that we all grow up raised to think that there are certain things that we want to achieve in life. And, in this case, this Proposition 8, in fact, says that if you are gay or lesbian, you cannot achieve this particular goal.”

Or this:

LETITIA ANNE PEPLAU, Ph.D. Professor of Psychology at the University of California, Los Angeles, testified that she has “great confidence that some of the things that come from marriage, believing that you are part of the first class kind of relationship in this country, that you are — that you are in the status of relationships that this society most values, most esteems, considers the most legitimate and the most appropriate, undoubtedly has benefits that are not part of domestic partnerships.”

I’m a bit of an American history nut and this was one of the most interesting pieces of information from the trial for me.

DR. COTT also testified about the meaning of marriage in the context of slavery. “When slaves were emancipated, they flocked to get married. And this was not trivial to them, by any means. They saw the ability to marry legally, to replace the informal unions in which they had formed families and had children, many of them, to replace those informal unions with legal, valid marriage in which the states in which they lived would presumably protect their vows to each other. In fact, one quote that historians have drawn out from the record … it was said by an ex-slave who had also been a Union soldier, and he declared, ‘The marriage covenant is the foundation of all our rights.’”

“And then in corollary with that,” Dr. Cott continued, “there are other ways in which this position of civil rights, of basic citizenship, is a feature of the ability to marry and to choose the partner you want to choose. … It has to do with a black man, Dred Scott, who tried to say, when he was in a non-slave-holding state, that he was a citizen. And in an infamous decision, the Supreme Court denied him that claim. And why this is relevant here is that Justice Taney spent about three paragraphs of that opinion remarking that the fact that Dred Scott as a black man could not marry a white woman — in other words, that there were marriage laws in the state where he was and many other states, that prevented blacks from marrying whites — was a stigma that marked him as less than a full citizen…. he remarked on it because of the extent to which this limitation on Dred’s ability to marry was a piece of evidence that Justice Taney was remarking upon in his opinion to say this shows he
could not be a full citizen.”

From Dr. Gregory Herek:

He also agreed with the following from the APA: “…the American Psychological Association concludes that there is insufficient evidence to support the use of psychological interventions to change sexual orientation” and testified that no other major mental health organizations have endorsed therapies to change sexual orientation, and that aside from being ineffective, they can cause harm.

“It’s important to realize that the underlying assumption of these therapies tends to be that there’s something wrong; that homosexuality is a mental illness; that it’s something that needs to be cured or something that needs to be fixed or repaired. And that, of course, is completely inconsistent with the stance of the American Psychological Association, the American Psychiatric Association, and other professional organizations in this area,” he testified.

Professor Chauncey testified about the decades of discrimination against LGBTs and how the Prop 8 campaign was just more of the same.

Specifically regarding Prop. 8, Dr. Chauncey testified that “the wave of campaigns that we have seen against gay marriage rights in the last decade are, in effect, the latest stage and cycle of anti-gay rights campaigns of a sort that I have been describing; that they continue with a similar intent and use some of the same imagery.”

After viewing several pro-Prop. 8 television ads and videos, Dr. Chauncey testified that the language and images suggesting the ballot initiative was needed to “protect children” were reminiscent of efforts to “demonize” gay men and lesbians ranging from police raids to efforts to remove gay and lesbian teachers from public schools.

“You have a pretty strong echo of this idea that simple exposure to gay people and their relationships is somehow going to lead a whole generation of young kids to become gay,” Dr. Chauncey testified. “The underlying message here is something about the – the undesirability of homosexuality, that we don’t want our children to become this way.

And yes there was even a George Washington reference during the trial:

DR. COTT challenged statements made by defendant-intervenors’ attorney Charles Cooper during his opening statement that procreation is the “central and … defining purpose of marriage.” She testified that the ability or willingness to procreate has never been a litmus test for marriage.

“There has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry. And known sterility or barrenness in a woman has never been a reason not to allow a marriage. In fact, it’s a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile,” she testified.

As for death of straight marriage when gays are allowed to tie the knot:

DR. PEPLAU testified that there is no evidence to suggest that marriage equality would harm others.

“It is very hard for me to imagine you would have a happily married couple who would say, ‘Gertrude, we have been married for 30 years, but I think we have to throw in the towel because Adam and Stewart down the block got married,’” Dr. Peplau testified.

Which one do you think did the most to help our case?

27 Comments January 30, 2010

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