Filed under: Liveblogging
By Rick Jacobs
Time for a fresh thread…
Olson: Plays testimony of Zarillo, Katami Perry.
Perry: If Prop8 undone and kids growing up in Bakersfield like me could know that their life could be whole, would change the entire arc of their lives.
Sandra Steer: tell us how marriage would change your life )O)
Steer: Would feel more secure, more accepted, more pride, less protective of my kids or worry about kids or feel any shame or sense of not belonging. ON a different level, as a parent you are always thinking about that other generation, the world and society that you are in, what you are doing for them. I want that. I want our kids ot have a better life. I do think about that generation, possibility of having grandchildren. It’s okay. They can be protected by their government. That’s what I hope the outcome of this case is in long run. Having legal protections is everything as someone from pocket of conservative part of country. That’s what I hope for. We’re big strong women. We would benefit greatly, but others after us will benefit in a more life changing way
O: (After Kott testimony) There is nothing like marriage except marriage As Dr. Peplau testified, Married couples live longer, are more stable and better off. Dr. Ilan Mayer says DP is stigma. Dr. Meyer now being played on stigma.
(Meyer testimony about stigma damaging gay people because feel bad about rejection, but that it’s valued by constitution to reject people.
O: I was struck by that word that Sandy steer just wanted her children to feel oka, okay to be gay. Proponents in guide told every citizen that we must protect our folks from seeing that gay marriage okay. Meyer shows that stigma with gay and rejects ind. Experts testified that not only bad to reject marriage, but acceptance would strengthen marriage. Even Mr. Blankenhorn, the proponent’s principle witness, agreed.
Four perspectives about marriage
Proponents argue all about procreation and deinstitutionalizing. No credible evidence.
On the other stands the combined weight of fourteenth supreme court decisions about marriage. And testimony of plaintiffs and combined expertise of witnesses. Plaintiffs just want what everyone else wants. Plaintiffs in same position as Mildred Jeeter and Richard Loving in 1967 who did not want to change marriage. Just wanted to marry person of different race whom they love. That’s all plaintiffs want, right to marry just people of same sex.
Supreme Court of US said conduct of marriage is protected institution right. Prop 8 takes away right to marry a fundamental right.
J: Is there a yes or no?
I believe this case could be decided by whatever Mr. Cooper says are leg facts, but tehse people are being singled out based only on their sexual orientation.
O: If I read past decisions when Supreme Court struck down state’s decision to discriminate against Chinese America here in SF, court is trying to determine if it is over inclusive or under. This trial will aid the record. Will aid in the understanding of the American people of what the rights are at stake I did not think we needed the trial you wanted, but I think it was an enormously enriching experience.
J: Supreme Court decide in 1972 Baker not right to weigh in?
O; Much has happened. Romer case. Lawrence v. Tex. Changes in ballot props. CA adopted different than Mich or Minn. This case is very different Supreme Court rejected opportunity to take miscegenation case in 1955, but then took Loving. Turner v. Saply, fundamental right of prisoners…
J: What date?
O: Have close by…
J: One of colleagues will get it.
O: 1987. Talked about fact court had decided not to take that case. Facts were different. We have learned so much. We have learned so much since that case. Also learned a lot from Supreme Court in Lawrence v. Texas. Opinion quotes Justice Stevens’ dissenting Bowers v. Complete change of video.
J: Not change by Justice O’Connor
O: No Supreme Court decided to reject a class discrimination on homosexuality.
J: How important was that decision that Romer took away rights as opposed to blanket prohibition of such enactments in the first case?
O: We have had cases like Romer, going back to 1964, where the citizens of California decided to rewrite its constitution to repeal fair housing via constitution. Went to US supreme court. Court said “we can discern that motives taking away rights of individuals based on race. :” Then comes Romer. Voters again did something to change civil rights. Inds protected by state laws from discrimination on basis of sexual orientation. Prop. 8 took away rights. Only redress is to amend constitution. Plaintiffs can only in this case go to voters. In each case, rights are taken away.
J: Let’s see if I can get an answer to this one? Would be different if CA never had marriage?
O: Different, but still problem.
J: Facts here are stronger because period of time during which marriage legal.
O: Yes. Political scientists said that rights are abrogated by initiatives.
O: CA Supreme Court did not invent right to marry; It was in constitution. That has happened again and again. Courts have said that constitution contains rights. Can say the same thing about Texas where Supreme Court said you can’t set up separate law school for AAs. Same as Loving. Same as Plessy. Would be same as litigating in next door state. Citizens of xyz state are selecting out people and putting people with fundamental right to marry and putting in separate category.
Persons in a homosexual relationship may seek autonomy in their relationships as other people. If court had instead said we’ll take away your right to drive on the highway for doing those things, same as marriage. Because you engage in something that is protected by our constitution we’;re going to take away another right in constitution, can’t be constitutional.
J: Should review here be different in due process and equal protection?
O: No. Both strict scrutiny. Supreme Court provides right to engage in marriage. Fundamental right of marriage. Not false right. Can’t be taken away unless state has compelling reason to do so and then must be done with surgical precision. Every one of standards of suspect class here: minority; immutable characteristic (plaintiffs, experts, ninth circuit said); been discriminated against; some debate abgout having political power. There have been improvements. Legislatures have enacted protections against discrimination against women. Court says that proves that there needs to be protection
Prof. Segura form Stanford says weigh all of these things. Indeed these inds are lacking in pol power to get their rights. No further than Romer case: we do not make in this country classification of our citizens. The Supreme Court agreed. You have on basis of discrimination due to sexual orientation. The individuals can choose anyone they want to marry, but state has decided has to be of a certain sex. Their choice foreclosed due to SO.
O: Your Honor said not about SS marriage, about right. Government imposed stigma placed in constitution of CA? What could be stronger signal that it’s okay to discriminate?
J: If 8 is unconstitional, where does that leave DPs?
O: Right where it was. People can engage in partnerships. Maybe some poepel wont’ want to get married because they may not think it’s as wonderful as we do (laughetr). As Dr. Meyer said, no one aspires as child to grow up to be domestic partnership. Do grow up wanting to get married. Supreme Court said in Zablocky right to marry is fundamental right of all individuals. Whether strict scrutiny or heightened scrutiny or rational basis, on all bases, whatever the objective of what the proponents wanted to accomplish for CA not being accomplished because it keeps changing. I would submit that “we’ve always done it that way” is corollary to “because we said so.” Can’t have discrimination against marriage for race because we’ve always done it that way. Constitutional right ot marry is fundamental. Constitutional right to be in relationship with person of same sex is fundamental. Does no good for state to stop people from getting married.
Heteros will not stop having children, getting married because their neighbors may ss marry. There was some evidence they tried to submit about Netherlands, but that disappeared before our eyes. Dr. Kott or Meyer said that four years before and after in Mass showed no change. Argument that marriage declines because of this wrong. 1970-1985 rise in divorce rate had nothing to do with ss marriage . It was due to hetero marriage.
O: Supreme Court rules that taking away right to marry (in case of Chinese) equivalent to slavery. Same here with ss marriage. How can it be wrong under equal protection clause for ss? Principle has been extended from race to nationality to marriage to Romer case for SO.
To wrap up, Prop.l 8 discriminates on basis of sex same way as Loving on race. They could marry whomever they want provided it was of the right race. Same here. Can marry whomever you want provided it’s of the right sex.
J: Can’t voters rely on everyday common experiences as NY Court held in Macon decision even if it does not stand up to scientific scrutiny?
O: Depends on decision. As Mr. Blankenhorn said we’d be closer to ideal if everyone could marry. Yes, citizens can use their common sense, but what was it in this case? I don’t believe it’s because state must protect procreation among heteros. That can’t be it because there is no evidence that any one person won’t marry because “they” can marry. No evidence that through intimate relationships, God forbid, procreation will decrease. There is no reason here to say ss marriage not okay because it means gay people are not okay. We’ve go to inquire to see if enactment of 8 advances the legitimate reason. We don’t know what that reason is. It can’t be post hoc.
J: Do I have to find that it is discriminatory on the part of the voters, private morality?:
J: I think discrimination is constitutional. Has to be unlawful discrimination.
O: Nice people voted for 8 and not nice people voted for 8. WE heard during the trial some awful stuff. Voters voted for 8 because people are uncomfortable with gay people The people did not see and too bad they could not see what psychiatrists said that these are not people engaged in bad conduct. Same as Loving case. People honestly felt wrong to mix the races. But were permitted under constitution to think that, but not permitted to put that into law.
They want to raise their children in the same way their neighbors do. We are imposing great damage on them. WE say they cannot have the happiness, privacy and intimacy that those who can marry have. We have demonstrated that this causes irreparable harm. One of the language on one of supreme court decision is that intimacy is constitutional right. We improved institution of marriage when races could intermarry WE improved when women had equal rights in marriage. We will improve this institution of marriage according to Mr. Blankenhorm when we allow ss marriage. IT will not hurt CA, it will better CA. It is unconstitutional because it stigmatizes classes.
Terry Stewart: Evidence of cost to government are symptomatic of harm that Prop. 8 visits on segment of society. Harms are also visited on society as a whole because society as a whole pays for costs of harm. Case of Philer v. Doe in which court struck down Texas statute that prevented undocumented children from attending school. “Must take into account cost to nation and stigma to children as illiterates for rest of life. Toll on childrens’ well being. Also considered social science data on inculcating fundamental values for society as whole.
TS (conts): Romer teaches us that laws that cannot be explained or understood by any rational thinking cannot be supported. Permanent v. transitory.
J: Evidence in record that city or county of SF would suffer unique, particularized injury for entire state.
TS: For SF particularly, SF is place where people of all SO come for tourist reasons and to enter into marriage. City loses revenue if can’t have ss marriage. That harm is not transitory. Witnesses Badget testified won’t be at spiked level.
J: Because it’s a marriage destination?
TS: City of love (laughter).
TS: Turn to more serious harms. Costs to public health system of stigma. My colleague TO showed Meyer testimony that showed that LG unlike other minorities suffer harm and prejudice at hand of own family. Can’t aspire to marriage, so suicide rates higher among gay and lesbian youth. Testimony about costs that SF undertakes to try to address those systemic harms. Most complelling was Ryan Kendall about harm to him and conversion therapy. Testified when parents found out gay, were horrified. Told him so. Said they wished they had aborted him. Would rather have had child with disability than gay child. Forced him to try to convert.
J: HE testified that he did not try to convert.
TS: He did. He said he could not convert any more than he could change his Latino heritage.
J: If this goes against plaintffs, would SF have standing to appeal?
TS: I never thought we’d have to think of that because plaintiffs would appeal.
J: What if they don’t? Do you have standing from particular harm?
TS: Yes, just as Boulder did.
TS: Testimony that SF spent $350 million on mental health. Kendall testified that abused, so went to Denver juvenile system and became ward of state. Relied on public health system for emergency med care because was 16 or 17 and did not have resources. Thought he’d kill himself without help. Went o school counseling paid for by govt. he did not have money for himself.
TS: Higher costs of law enforcement because of stigma. Mayor Sanders said that when people feel stigma, people are empowered to commit hate crimes.
J: Isn’t problem with that argument that even if Supreme Court strikes down, motives for crimes will persist. They exist because of motives law can’t address.
TS: I’m not so sure. As Sanders said, when you have laws that approve of stigma, have more hate crimes. We saw that hate crimes in CA 2008 highest since 1985. Bullying based on SO occurs year in and year out. Schools lose revenue because of bullying. Approximately 50,000 absences a year attributable. State loses on attendance. Society loses because we have less productive people.
TS: I have little time left. The city is acutely aware that when Chauncy talked about stigma, city of SF also part of that. We once did that with our police. SF wants nothing more than to treat all citizens equally. Prop 8 extends stigma. Evidence at trial shows how hurtful and invidious to send that message. Join in plaintiff’s case to strike it down.
J: Very well. Thank you Ms. Stewart.
Gov waives right to closing argument.
J: Very well, glad you are here! (laughter)
AG: Wave as well.
J: I have questions. Asks Alameda County registrar if you ask for gender with marriage licenses.
Reg: I believe so.
J: We checked SF, Orange and Imperial Counties this morning. SF box for groom, box for bride labeled opitional. OC bullet point for groom, bride and one labeled none. (laughter)
J: In OC if you fill out say groom an then punch next, can put in groom again on line. Does not give error message. What do I make of this? I suppose I could take judicial notice, but maybe not?
Reg: It does not mean registrar will actually perform or recognize the marriage. It may be a way of sorting out applications for marriage that are not currently legal in CA from those that are legal.
J: By that you mean what?
Reg; Alameda County forced to deny marriage to SS applicants, including plaintiffs, after Prop. 8 passed.
J: How was that determined?
Reg: I believe that they are state prescribed. Do they look similar?
J: No. (laughter). They look quite different.
Reg: I know that in one case ss people came in to ask for license. My clerk asked me what to do and we could see they were sss and I said could not marry.
J: You did not issue license?
Reg: Yes. We are sworn to uphold laws of constitutions of US and CA.
J: So determination is simply made on spot?
Reg: I don’t see much alternative. Would we ask for medical certification? IF there is deception, provision in law.
J: If they lie and one says groom and one bride?
Reg: Two possible situations in which clerk would not look to them as different sex, might have discussion. Don’t know if take at word because marriage would be null. Based on misrepresentation.
A I correct in understanding state law, only opposite sex couples can become dp if over 62. What do you do to enforce?
Reg: I imagine it would be like a bar, where you’d ask for ID.
J: We’ve come to lunchtime. Mr. Cooper you are up at 1:00PM. Mr. Cooper, I look forward to seeing you at that time
[NOTE] New thread is up for the afternoon session.
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By Rick Jacobs
Sorry for the delay folks. I’ve been having connectivity issues. Don’t worry, none of the action is missing.
And with that here is the liveblogging!
Come to order. We all stood for the Judge.
Olson: Good morning your honor. Theodore B. Olson on behalf of the eh plaintiffs David Boies for the plaintiffs. Theodore Boutrous for the plaintiffs. Christopher Dusseault for the plaintiffs.
Terry Stewart fro SF. City attorney Dennis Herrera.
Judge: Any others for plaintiff?
Charles Cooper, Howard Nilson, Nicole Moss, Peter Patterson, Brian Roth (?), James Campbell from Alliance Defense Fund.
Well we have some other defendants.
Alameda County clerk. Michelle and Manuel Madero on behalf of AG Brown. Lawyer for Schwarzenegger.
Judge: Any other lawyers?
Judge: Well, this is an impressive array of talent all focused on one person
J: Welcome back . Obviously I had hoped that we wood have been here before this. It’s appropriate that we are here now because June is, after all, the month for weddings. You have received the schedule. Let’s proceed.
O: Theodore B Olson on behalf of the plaintiffs. We conclude this trial where we began. This case is about marriage. The right to marry has been taken away from tens of thousands of Californians. This state has placed into the constitution stigmatization that is unworthy of marriage, not respected. Want to return to subject of marriage, what it means to marry and have right extinguished.
Four perspectives: Proponents of 8, plaintiffs, supreme court of US and subject of marriage.
In words of proponents lead counsel is that marriage has always been for procreation an narrowly defined as sexual activity to procreate. Sole reason for marriage is to meet child’s need.
Proponents said racial restrictions were never a restriction of marriage in response to your question.
You asked how does same sex marriage in any way denigrate marriage?
Lead counsel responded, it will change the institution. If the institution is institutionalized, will likely lead to more cohabitation, separation of parents.
[UPDATE: 11:31] O: Yes, because it’s taking rights away. Justifies strict scrutiny.
J: Focus on CA or across country?
O: Both. Want to include those four perspectives. Want to point out that plaintiffs have shifted.
J: Any difference?
J: Cloverleaf case says that classification is irrational…if there is any rational debate over the rationality of the proposition, the voters …
O: Supreme Court looks at this issue in different ways. Strict scrutiny. What Supreme said in Cleveland case is that mere negative attitudes are not supportable. Was in case of retarded person. Proponents just don’t know if SS marriage will harm the institution of SS marriage.
Evidence from experts is that strengthens marriage. After three week trial with witnesses, Prop. 8 constitutional because CA voters don’t know if it would yield to problems with marriage.
J: They have
Right of persons in jail, not paying child support. Not right of any state which could easily be withdrawn if state changes mind on procreation. Right to marry to choose to marry never conditioned on or tied to procreation.
Very different from what the campaign said. They said, “protect our children.” That was in every campaign piece. Their “gays are not okay message” was abandoned in the trial in favor of procreation argument. Then they affirmatively argued that they had no idea or evidence that any prognostications would come to pass if marriage legal.
Their counsel said you’ll hear nothing but predictions?
J: But it’s the plaintiffs who bear the standard of proof?
O: Yes, I want to juxtapose..
J: Strict scrutiny?
J: Why can’t Californians take away that right?”
O: They can if compelling state interest…
J: Would this be different if CA Supreme Court had invalidated all marriages?:
O: It would be different because it would be less worse.
O: Because now you people who are in prison can marry and many others, but homosexuals cannot. If you reduced it to three categories of ss people who cannot marry it would be less capricious.
J: Why not?
O: Because supremes have said marriage is a fundamental right. If it were intermediate scrutiny, supremes said in VMI v. Virginia post rationalization won’t work. One of the reasons I showed you the shift in position is that shifted from ballot arguments to what happened in court. Did not want to saying court that gays are like …s. So they are saying deinstitutionalization and procreation. This si social institution of marriage, so valuable that supremes said most fundamental. Plaintiffs said, security, dedication, public commitment to the world, the most important decisions you make as an adult.
O: They are taking away the right of a relationship, right of liberty and privacy. Have to have some statement that SS marriage will somehow stop people from procreating or hurting marriage?”
J: doesn’t CA accommodate LG people with all rights? Why isn’t that sufficient?
O: I’m going to play some testimony in a bit. We have heard proponents arguments. Now must view through prism of US Supreme Court. Supreme Court has said in 14 cases 1888, court has said that marriage is the most important relationship in life. It is the foundation of society, essential to pursuit of happiness, right of intimacy, older than bill of rights, a liberty right equally aviable to a person in a homosexual relationship as hetero.
[NOTE] New thread is up here.
By Rick Jacobs
It’s all different this time, much more like the stories I read about William Jennings Bryan and Clarence Darrow. I’m typing this now balancing on movie theater style rope and post. Anthony is balancing the computer for me. What would we do without him?
There must be 300 people here, maybe many more, trying to get into the overflow room or the courtroom. I was in the overflow room thanks to some of our staff/volunteers such as Courtney and Wendy. Now, I’m number 10 in line to get into the main courtroom, which is very, very exciting.
The rally outside was terrific: bright sun, 100 or so people, Molly McKay singing.
I’ve seen all of the plaintiffs; Jeff Zarillo just walked by. I had a good hug with Ted Boutrous and Chris Dusseault from our side. I gather Ted Olson has been up since early this morning, part of his ritual before such work.
Gilbert Navarro from Fresno, one of our Courage Team members, is here in front of me. There’s so much more energy than last time.
And here’s Anthony Pugno, the lawyer for Protect Marriage, who is using his position of divider in chief to run for office in California’s 5th assembly district. We have to stop him before he hurts again.
Terry Stewart and Dennis Rivera just walked by.
The real Red Carpet of life is here. Forget that Hollywood stuff. This is history.
[UPDATE] 9:56 I’m in! I’m sitting in the back row on the right. I gave Ted Olson a quick hug on the way in. Chad Griffin, the brilliant strategist behind this whole case, came by. The AFER team is second to none. They are truly brilliant. It’s a pleasure to see our side have the political and PR acumen one rarely even sees on a presidential campaign.
It’s quiet in here now. Everyone is waiting for the judge to show up. The lawyers are at two very large rectangular tables perpendicular to the judge’s bench. Ted Olson and Ted Boutros are conferring.
[UPDATE] 10:44 By Julia: Rick is having connectivity issues. As soon as he gets a signal we will get the transcript up. Sorry about this folks.
[UPDATE] 11:22 The updates from Rick are starting to come in. New thread is up here.
By Paul Hogarth
So now we finally have a date for Closing Arguments for the Prop 8 trial — Wednesday, June 16th, or 156 days after the start of the Trial. By now, we’ve heard the evidence, we know what’s been said, and there’s been a lot of analysis on this site about what it means for the outcome, our movement, and our lives.
But besides setting a date for closing arguments, Judge Walker set a date for the defense counsel to submit their motion to suppress at least part of Dr. Tam’s testimony. As you recall, Dr. Tam was the right-wing San Francisco minister who believed that his kids will turn gay if marriage equality was allowed to remain. We’ll find out on May 7th how much of the testimony they want stricken from the record, and what is their basis. Our side will have until May 10th to then file an objection.
So what happens if Dr. Tam’s testimony is taken out? Dr. Tam was powerful evidence that Prop 8 was driven by animus and a hatred of homosexuals, which would be enough to strike Prop 8 — even under the more lenient “rational basis” grounds set up in Romer v. Evans (1996.) But while Dr. Tam’s testimony is damning and it should be kept in, there was a whole lot of other evidence that our side presented. In fact, when it came time for the defense to produce their “experts,” there wasn’t a whole lot of reason they could provide.
If it’s impossible to dream up a “rational” basis for deny LGBT people the right to marry the person they love, and all the reasons the defense provides is merely a subterfuge for bigotry, Prop 8 must be found unconstitutional. Dr. Tam’s testimony was the most dramatic and forceful, but our side put on a good case tying other “rationales” for Prop 8 to be simply animus. In fact, I would argue the strongest witness we had for our side was San Diego Mayor Jerry Sanders — who explained how he came to the realization that his so-called “friendly” reasons for opposing gay marriage had merely been based out of irrational discomfort.
by Paul Hogarth
I’m here in Judge Vaughn Walker’s federal courtroom in downtown San Francisco for a hearing on the Perry v. Schwarzenegger Prop 8 trial. LGBT POV has some useful background on today’s hearing, which may see Judge Walker finally set a date for closing arguments in the trial.
And here we go!
Steven Bonsey for ACLU
Bassenhau for EQCA
Defense intervenors present (Fennuchio, i believe)
Other lawyers on plaintiff’s side
Judge: in view of yesterday’s communication from No on 8 groups, have they complied with the orders?
A: They were sent overnight, but I haven’t read them yet. They are in my office.
Fennuchio: although the file seems thin based on what they were ordered to file.
Judge: Any explanation?
ACLU: we reviewed thousands of documents, and produced what we were required to do under March 5th order
Judge: how long does defense need to review these docs to say they’ve been in compliance?
Other defense lawyer: how about a week?
Fennuchio: a week would be okay. But EQCA, how many docs did you send us?
EQCA: about 4500
ACLU: also thousands of emails
Judge: let me lay out a schedule. I was thinking about giving defense until May 3 to determine if … Uh, actually both sides should have until Friday 4/30 to conform or deny they have complied. If there’s an allegation there was no compliance, there will be a hearing on May 3 at 10am.
If no allegation, defense have until May 5 to submit a supplement to the evidentiary record, and May 7 for plaintiffs to object to the submission of evidentiary record.
Also schedule motion for reconsideration, but before that … Is what I outlined for No on 8 practical?
Fennuchio: yes, but make it end of the day May 5th … And what about our chance to respond to their objections they fule on May 7?
Judge: ok, May 12 .., at which point, there will be no additional evidence
Judge: I’m hopeful that there will be an agreement that compliance has been made.
Well, can the proponents file their objections by noon on Friday the 30th?
Defense counsels: yes
Judge: I’d like to set a schedule for remainder of case. I am inclined to grant the defense motion for Dr. Tam’s reconsideration, and want their submission by May 6 and have plaintiffs objection by May 10.
Closing arguments set for June 16 at 10am.
All lawyers agree.
I’ll be posting an analysis of today’s hearing shortly. Stay tuned!
By Julia Rosen
This is the last daily summary for a few weeks.
Here is the timeline we are looking at… Amicus briefs are due on February 3rd. Judge Walker is bringing the lawyers in to go over these briefs on Feburary 26th. He indicated as they were wrapping up today that at that time (the 26th) he will schedule the closing arguments. That likely means we will not have closing arguments until early March, with the ruling several weeks after that, depending on how long Judge Walker takes.
I know, the wait stinks, but I’d much rather Judge Walker be deliberative about this process and his ruling than it be rushed. No matter what way this goes, the wording in his ruling will influence what the appeals court and eventually the Supreme Court will say and do.
The hiatus does not mean we will be stopping around these parts. There will be fresh content throughout this break, so keep coming back and join in the comments. (more…)