December 6, 2010
By Adam Bink
Well, that was something. Some brief reactions:
(a) Cooper’s constitutional argument turned almost entirely on the word itself- marriage- and as Brian noted in our live-blog thread, that this word is simply special.
(b) Very interesting and promising that Judge Hawkins seemed to ridicule Cooper’s discussion of the Romer v. Evans case when Cooper said that case was far-reaching and different, interjecting, if you take away a bunch of rights, it’s not okay, but if it’s one right [marriage], then it’s ok? Cooper could not square the circle that, to him, Amendment 2 was a noxious and over-the-top move by the voters of Colorado, but taking away the fundamental freedom to marry from same-sex couples is fine by him, and Hawkins seemed to note that.
(c) Tyler was terrible. Couldn’t explain why the clerk herself wasn’t there, made numerous factual mistakes, unprepared to respond to challenges from the judges.
(d) Ted Olson hammered home repeatedly, and without interruption that the US Supreme Court has never said marriage is just between man and woman when ruling in the context of prisoners, contraception, divorce, other cases that marriage is (a) liberty (b) privacy (c) association (d) identity. He noted the Supreme Court said this 14 different times. That, along with Olson’s discussion points that (a) even if raising children in same-sex households were a problem, the remedy is not to deny the freedom to marry to same-sex couples, and (b) as Brian put it, you can’t wall off a right because children shouldn’t be exposed to sexuality… it just doesn’t stand up to even the lowest level of rational basis- seemed to be the most poignant in the entire day.
I will be posting further reactions from others throughout the afternoon, as well as the scene from outside the courtroom.
What are your thoughts on how it went?
Update: Excerpt of a statement from Freedom to Marry’s Evan Wolfson:
“Earlier this year, the anti-gay forces behind California’s Prop 8 were yet again shown to have no evidence and no good arguments that would stand up in the light of a courtroom, under oath and cross-examination. Lacking any serious expert witnesses or facts to justify marriage discrimination, they fought to block cameras from the courtroom and actually asserted that they ‘don’t have to have evidence.’ After Judge Walker conclusively found that they had failed to justify stripping the freedom to marry away from California’s gay couples, the anti-gay groups swiftly took to attacking the judge.
“Today, unable to hide, these same opponents of equality stood before appellate judges and, this time, cameras, and all the world could see what a majority of American people have already come to understand: there is no good reason for continuing to exclude committed loving couples from the legal commitment of marriage. When the gavel came down, it was clear yet again that the anti-gay forces still have nothing. Their case is, in Lincoln’s words, ‘as thin as the homeopathic soup made by boiling the shadow of a pigeon that starved to death.’”
Update 2: Karen Ocamb has a good and quick summary of the pre-trial rally.
Update 3: Anti-equality folks outside the courthouse:
Update 4: Brief reactions from some trusted legal eagles in the legal community around marriage equality are coming in. I’ll get them up later.
Update 5: First reaction from members of the legal community: here’s what Evan Wolfson sent me over e-mail:
Most striking was the complete failure — I mean complete! — to show how Judge Walker erred in his marshaling of the facts, evidence, cross-examination, and record showing a lack of a legitimate, sufficient reason for stripping away gay people’s freedom to marry. They came in with nothing, and left nothing for the court.
Update 6: Shannon Minter of the National Center for Lesbian Rights, who was the lead attorney on the In re Marriage Cases often cited in today’s hearing, and who we invited on for an open Prop 8 trial Q&A a few months back along with his colleague Chris Stoll, sent in the following to me over e-mail:
Hey Adam- The argument went very well for the plaintiffs. Judges Reinhardt and Hawkins seemed quite critical of Charles Cooper’s claim on behalf of the proponents that Prop 8 could be justified based on arguments relating to procreation. The judges pressed Cooper on how procreation could be a justification for Prop 8 when California law gives same-sex couples exactly the same parentage rights as heterosexual couples. The judges were very tough on both sides on the question of standing. But in the end all three judges seemed highly skeptical that Imperial County has standing, and they also seemed convinced that current U.S. Supreme Court precedent casts much doubt on whether the proponents of Prop 8 have standing either.
Last, Therese Stewart from the San Francisco City Attorney’s office did a brilliant job of laying out why Prop 8 is uniquely irrational based on the unprecedented circumstances under which it was passed. No other state has first said that gay couples have a constitutional right to marry, and then taken it away.
Update 7: Shannon has a longer reaction over at Karen Ocamb’s space.
Update 8: Just learned David Boies will be on Hardball within the hour. I’ll be watching and will update with notes.
National Organization for Marriage Decries Biased Hearing in Ninth Circuit
National Organization for MarriageTM (NOM) today decried the hearing to determine the constitutionality of Proposition 8, California’s constitutional amendment providing that marriage is only the union of a man and a woman. NOM is protesting the involvement of Judge Stephen Reinhardt because Reinhardt’s wife has been involved in the case from the beginning as the Executive Director of the ACLU of Southern California.
“This hearing makes a mockery of the federal judiciary,” said Brian Brown, president of NOM. “Citizens are entitled to a guarantee of impartiality from their judiciary. Yet here we have the spectacle of a federal appeals court justice ruling on a case in which his wife represents a group that is a participant. A cynic would be left to wonder if the fix is in for marriage in the Ninth Circuit.”
“Chuck Cooper did an extraordinary job defending Proposition 8 and the right of California voters,” said Brown. “Cooper made a compelling case that not only is limiting marriage to a man and a woman a rational position for voters to take, it is the position taken by virtually every other country on earth, and indeed virtually every nation throughout the history of civilization. However, it’s hard not to think that none of that will matter when a Judge like Stephen Reinhardt, who has such an obvious conflict, is allowed to sit in judgment of the people of California.”
“The long road to determine the constitutionality of Proposition 8 cannot be allowed to go through the courtroom of a Judge whose wife is a key participant in that case,” said Brown. “It’s obvious that Reinhardt will vote to overturn Prop 8. We can only hope that once this case reaches the U.S. Supreme Court, that the people of California will finally get an impartial day in court. When they do, we are confident that marriage as the union of one man and one woman will be vindicated.”
Never mind judicial independence, never mind Reinhardt’s occasionally-sharp lines of questioning, never mind anything with these folks. No, what is a “mockery of the federal judiciary” is Brian Brown and NOM.
Update 10: Rick is at a post-trial press conference with Cooper. He sent back the following dispatch:
Cooper says that he respects the other side and regrets that they do not respect him/his arguments equally. He says that in order to find for the plaintiffs, the courts must find tens of millions of Americans who voted against marriage equality. Cooper said the other side are demeaning and ridiculing. He continues by arguing that all Californians are victims if their elected leaders do not carry out the law, and that voters are sovereign. This is laying grounds for anti-court hatred.
Update 11: David Boies and Chad Griffin are now live on Hardball. Boies makes the point that there’s no useful societal point to banning s-s marriages. Griffin talks about “state-sanctioned discrimination” and how it gives license to other forms of discrimination. Matthews asked if Boies’ argument would have been credible in the early days of our republic. Boies responds that (a) The bias we see today against gays and lesbians is a product of the last 100 years (b) originally, this country was “we the white male propety-owners”. Griffin in response to a question from Matthews says this should not be up to a vote of the people. Matthews asks about possibility of getting Scalia-types on this. Boies says “we’re not giving up on any of the justices b/c if you look at Ted and myself, it’s hard to find two on the most opposite poles of the political spectrum” [paraphrasing]. Griffin briefly discusses inter-racial marriage. Matthews says thanks, they sign off. They both did very well.