The Federal Prop. 8 Trial / Gay Marriage Catch-All

Pages

Today began the slow trek to the U.S. Supreme Court regarding same-sex marriage, and the first day in the court was a doozy.

Reading various sources, including live bloggers, news reports and rushed transcripts, here is the rundown of day one (with some commentary).

Part 1 - Televising of the Proceedings
Judge Walker is for it. The plaintiffs (anti-Prop. 8 folks) are for it. Defendants are against it. The judge suggests the proceedings be videotaped and then be allowed to be put on YouTube two days later. Defendants object and petition the SCOTUS. The Supreme Court issues an injunction to stop the telecast or taping and will hear more on Wednesday.

Part 2 - The Yes on Prop. 8 Commercials
The plaintiffs want the Yes on Prop. 8 ads admitted into evidence. The defendants are opposed to anyone seeing the commercials saying that the ads do not imply intent of the Prop. 8 people (oh, please!). Judge allows the ads, except does not allow the "Gathering Storm" ad because it was made after the Prop.8 campaign had been completed and was not made by the Prop. 8 people (it was made by NOM).

Part 3 - Opening Arguments
Ted Olson starts off with claims of discrimination and inequality. Judge Walker asks about domestic partnerships or civil unions and Olson says they are inherently unequal. Judge Walker asks for evidence that Prop. 8 is economically harming California (interesting!). Olson goes for the jugular and notes that the Prop. 8 people made claims in their ads and on their websites that religious institutions would have to be closed, gay activists would take over the state, and children would need to be protected (but they never say from what). Then Olson notes that heterosexual criminals can get married but gay people can't.

Charles Cooper, attorney for Yes on Prop. 8 says that California has been very generous to gays and lesbians and has allowed them to have domestic partnerships (yes, thank you, California for allowing those uppity homosexuals to have partnerships). Cooper quotes Obama as saying marriage is between a man and a woman. Judge Walker notes that had Obama's parents moved to Virginia before his birth their marriage would not have been recognized. Cooper says race has never been a restriction enshrined in marriage. The courtroom burst into laughter.

Cooper then says marriage is for procreation first and foremost and calls it a "pro-child" institution. Judge Walker asks about other values in marriage like companionship, etc. Cooper says those are always secondary and that making them primary will "deinstitutionalize" marriage as we know it. (Wow. Just wow. So, unless you have children, your marriage is a sham.)

Cooper states that allowing gay marriage will increase the divorce rate and lower the marriage rate. How? He doesn't say but says his witness will reveal all. Judge Walker asks if this has happened in other nations and states that have gay marriage and Cooper says his witness will reveal all. Judge Walker asks if gay marriage is a threat to society and Cooper says, well, you know.

Part 4 - Testimony of Plaintiffs
The plaintiffs take the stand and talk about their relationships and how they want to get married but can't. At one point, one of the male plaintiffs said that the Yes on Prop.8 ad about protecting the children he found very offensive. (Paraphrase) "When you protect children, you protect them from a pedophile or a criminal. You don’t protect yourself from a good or amicable person. Yet when they say they are protecting them from me, it’s so damning. I love kids. If you put my nieces and nephews on the stand right now, I’d be the cool uncle." (A-freaking-men. I am sick of being told that children need to be protected from me. For what? Loving Rubb Ed?)

At this point, the plaintiffs want to introduce the ballot guide issued by California that contains the Prop. 8 pro and con statements and the defendants scurry to see if they should object or not (object to introducing a public document into evidence?). They don't object. Counsel for defendants questions plaintiffs about children having to learn about gay couples. Plaintiff says they will learn about them in school or not; you can't make gay people just disappear.

Part 5 - Testimony of Prof. Nancy Cott
Prof. Nancy Cott is a Yale and Harvard scholar and an expert on marriage in the United States. Cott says marriage is both a private AND public institution. She notes that people mostly think about the private side but the public side of marriage enforces the rights of liberty and privacy in a relationship. (Very, very interesting.) Cott then says that marriage has only recently been codified as one man and one woman and is very much a Western concept and notes that other countries allow polygamy, as did the ancient Jews and other civilizations throughout history.

Cott then reiterates that marriage is a civil right and an expression of liberty and then heads down a road that was nothing short of amazing. She notes that slaves in the U.S. before emancipation were not allowed to marry and that when they were emancipated, they married in droves. They didn't consider it trivial but the very foundation of their freedom. She quotes a former slave who became a Union soldier: "The marriage covenant is the foundation of all our rights."

Cott reads from the Dred Scott decision and quotes Chief Justice Taney in which he says that the laws in Scott's state prevented him from marrying and, therefore, that made him less than a full citizen. (That is stunning!)

The court adjourns for the day and will begin again tomorrow at 8:30 AM PST.

I have to say that this did not disappoint. Olson seems to know exactly what tact to take and if the Yes on Prop. 8 side take the "marriage is all about procreation" avenue, they are in for a very tough fight.

And the Dred Scott/African-American marriage information was amazing. Cott was brilliant to quote the SCOTUS on Dred Scott about how not having access to marriage makes a person less of a citizen.

Anyway, I will update tomorrow with the proceedings.

Thoughts?

(BTW, here is Ted Olson's opening statement in full.)

Here is the link to the rundown for Day 2.

Here is the link to the rundown for Day 3.

Here is the link to the rundown for Day 4.

Here is the link to the rundown for Day 5.

Here is the link to the rundown for Day 6.

Here is the link to the rundown for Day 7.

Here is the link to the rundown for Day 8.

Here is the link to the rundown for Day 9.

Here is the link to the rundown for Day 10.

Here is the link to the rundown for Day 11.

Here is the link to the rundown for Day 12.

[Note: the trial is in recess for about 30 days while Judge Walker reviews the evidence. I will update the rundown when the court is called back into session.]

I haven't followed it as much as I should, but if you're summing it up right, the plaintiffs are winning by a landslide. No matter what happens here though, this is going all the way, at least if the plaintiff wins, if the defendant wins, I'm not sure the court will give them their writ.

Some very interesting points in there. Funny what sort of stuff does and doesn't come up when you've got what is essentially a properly moderated debate (i.e. the judge will quickly squash unsupported rhetoric etc.)

"Marriage is for procreation first and foremost" is a concept I haven't really run heard before. I wonder if they're trying to use it since it's the only facet of a marriage (that I can think of) that a gay couple can't manage without some kind of outside intervention. Trying to establish the debate in terms that they know they'll win, essentially.

Out of curiosity, why would the defendants be against televising it? We haven't been getting much coverage of the situation over here.

Sonicator wrote:
Out of curiosity, why would the defendants be against televising it? We haven't been getting much coverage of the situation over here.

My guess (and it is strictly that) is that they wish to control the message. They are now in a forum where they can't speak out of both sides of their mouth without getting called on it. Even worse would be having that shown on television. I am sure many Californians would be less than please to know they were lied to and manipulated.

Also, during the Prop. 8 campaign, the pro-8 forces would say that they only wanted to secure the word marriage and then would produce ads stating that churches would be forced to marry gay people and children needed to be protected. It was pure scare tactics and it worked quite well. Now, their ads are on display in a court of law and you can bet that Olson is going to show the ads over and over and demand the defendants substantiate their claims or admit they were simply scare tactics. They really don't like either of those options.

And they certainly don't want that being seen on television.

Luckily, they can't do anything about the live blogging, the news articles and the transcripts.

One of the most reprehensible tactics the Yes on 8 crowd used was to somehow intertwine Gay Marriage with raised taxes. But, hey, at least they knew who to target.

Anyway, going for the Marriage = babies angle seems completely dunderheaded to me. What if you're sterile/infertile/etc?

Bookmarked!

It certainly sounds like it has been a good start for the anti-Prop. 8 crowd. It also sounds like the defense are just scrambling around, which is a good thing.

Sonicator wrote:
"Marriage is for procreation first and foremost" is a concept I haven't really run heard before. I wonder if they're trying to use it since it's the only facet of a marriage (that I can think of) that a gay couple can't manage without some kind of outside intervention. Trying to establish the debate in terms that they know they'll win, essentially.

Is this a facet of marriage that is understood in the general populous though? I don't think people are ready to turn in their marriage licenses if they haven't had a kid in a certain number of years.

Thanks for the play-by-play Phoenix. I appreciate it and hope you continue to do it. I really hope the plaintiff's side hit on the aspect of religious institutions enjoying tax breaks while openly discriminating. I'm a firm believer that if they were threatened with being hit in the wallet, this whole thing wouldn't even be an issue.

On a side note, I wish more people knew about pivotal trials in the US, particularly ones such as Dred Scott to give people a better idea of who has had to fight for basic rights, what rights have historically been denied to non-whites, and what obstacles blacks have had to face throughout history in this country. Anyone in this day and age fighting for a basic civil right in this country is doing so on a foundation built by African American slaves.

+1 for this whole thread. I know it's a lot of work, Phoenix, and I really appreciate your efforts in distilling and reporting the updates to this trial. If I'm ever in your town, I'll be buying your drinks.

Sonicator wrote:
"Marriage is for procreation first and foremost" is a concept I haven't really run heard before. I wonder if they're trying to use it since it's the only facet of a marriage (that I can think of) that a gay couple can't manage without some kind of outside intervention. Trying to establish the debate in terms that they know they'll win, essentially.

I won't say that this mode of thought isn't foreign to me, but it definitely reeks of the ancient tenets of marriage, which originated as a transfer of property between an older man and a younger man. I *do* agree with your assesment that the Limited Marriage crowd is using this because it seems to be one of the biggest distinguishing factors for heterosexual marriage, but it's stilll a helluva thin line to walk. Following the logic, every woman should be forced to sign divorce papers prior to going through menopause.

Great job Phoenix. I'm crossing my fingers, hoping this trial gets a lot of attention.

It looks like the proceedings will run until about 4 PM today PST, so I will have a recap up around 8 PM Arizona Time.

Cott will be cross examined today and I am really anxious to see how she handles the "but gays already have the right to marry, it just has to be of someone of the opposite sex."

Phoenix Rev wrote:
Judge Walker notes that had Obama's parents moved to Virginia before his birth their marriage would not have been recognized. Cooper says race has never been a restriction enshrined in marriage. The courtroom burst into laughter.

This is the sort of mindset we're up against. In general, I don't really think that the mass population hates gays or wants to see them punished or set aside, not really. I think alot of people uncomfortable with gays as a faceless mass, but they're not malicious or spiteful about it.

What we have, though, are a few ringleaders who seriously believe they can get away with saying things like the above - clearly (and probably intentionally) incorrect things that they are used to saying out loud to no one in particular so they don't have to back it up. Rev, you are 100% correct in thinking that this is why they don't want things televised or recorded for public consumption. Tactics like this have alot of power when you can play with fire-and-forget messages or use tactics that have a thin veneer of separation between your campaign and scare messages. But when we can pause and rewind and enshrine this sort of crap, it's a whole other thing.

So we're either going to see alot more of these hilarious missteps due to these people being used to not having to substantiate what they say, or we're seeing an amazing rope-a-dope opening.

Very interesting!

Thanks for the summary! Keep it coming as I'll be checking back in to see where this leads. I bet there is going to be some really entertaining quotes that come out of this. I hope common sense wins.

Phoenix Rev wrote:
I am sick of being told that children need to be protected from me. For what? Loving Rubb Ed?

Yes! The film says so! Please don't try and rape me under the pier...

Phoenix Rev wrote:
Cott will be cross examined today and I am really anxious to see how she handles the "but gays already have the right to marry, it just has to be of someone of the opposite sex."

This will be the interesting part to me, it's key. The entire Dred Scott analogy is moot if this hurdle isn't crossed.

Phoenix Rev wrote:

Today began the slow trek to the U.S. Supreme Court regarding same-sex marriage

I was under the impression that many gay rights activists don't want a SCOTUS test at this time though.

NormanTheIntern wrote:
Phoenix Rev wrote:

Today began the slow trek to the U.S. Supreme Court regarding same-sex marriage

I was under the impression that many gay rights activists don't want a SCOTUS test at this time though.

It's inevitable. Who knows how long it would take to wait for a more favorable court. I'm not a big fan of the SCOTUS lifetime appointments. Hopefully pragmatism will prevail. There is the inherent benefit that, aside from some dubious arguments, common sense seems to be on the side of human rights. You can never underestimate the power of legalese though.

wizard_in_motley wrote:
Sonicator wrote:
"Marriage is for procreation first and foremost" is a concept I haven't really run heard before. I wonder if they're trying to use it since it's the only facet of a marriage (that I can think of) that a gay couple can't manage without some kind of outside intervention. Trying to establish the debate in terms that they know they'll win, essentially.

Is this a facet of marriage that is understood in the general populous though? I don't think people are ready to turn in their marriage licenses if they haven't had a kid in a certain number of years.

Nor if they never plan to have kids. I had a vasectomy a year and a half before I got married. I'm amazed Texas considered it valid.

I will be shocked if the supreme court grants cert on this one. It rarely will do so on a novel issue, that has not been addressed many times in different Circuits. You will see this with right to representation, separate but equal, the death penalty in the 70's.

And it would also require them to do the unprecedented thing of invalidating an article of the Constitution-the marriage act passed by Clinton.

Thanks for doing this, Rev.

I'm going to start building my fallout shelter for the gay apacolypse

mooosicle wrote:
I'm going to start building my fallout shelter for the gay apacolypse

Please get in line for your "Gaypocalypse 2010 official Pillow of Heterosexuality" brought to you by Pampers.

I'd like to see them attack from the other angle: make it illegal for anyone to get married without procreating. Infertility is an immoral lifestyle choice! Also you can't get divorced unless the kid dies.

LobsterMobster wrote:
I'd like to see them attack from the other angle: make it illegal for anyone to get married without procreating. Infertility is an immoral lifestyle choice! Also you can't get divorced unless the kid dies.

Exactly. Make it illegal for post-menopausal women, post-vasectomy men post-hystoectomy(sp?) women to get married. See how well that boat floats.

Also, good work Phoneix Rev on the reportage

I've been reading some transcripts from over here...

Judge Vaughn Walker has entered the courtroom. Attorney appearances will be by signin instead of the litany of podium statements. One other point: is the Attorney General’s lawyer here? All will please respond regarding same-sex marriage amendment’s constitutionality, and whether the AG should have taken a role in that determination. All will please respond by Thursday at 5pm.
Ms Cott, you are still under oath, you understand?
C: yes
B: Good morning, Professor Cott. I have conferred with defendant-intervenor’s attorney regarding exhibits and they have objection (presents list to clerk) I would like to present another statemtn from the opposing counsel’s opening statement, wrt its central purpose being procreation and channelling, naturally procreative sexual activity between men and women into stable enduring unions.
B: What is your opinion?
C: Procreation is A purpose but no means the central purpose. Reminded me of the story of the seven blind men and the elephant: each sees something different, trunk/snake; side/wall; tail/vine. Procreation in a stable union is A purpose, but from the STATE’s perpective marriage has more to do with establishing a HOUSEHOLD and all that implies about social order and governance.

B: How is marriage an instrument of governance?
C: Historically, I mean the regulatory purpose of marriage. Men were heads of household, responsible economically for all parts of their household. Giving benefits implied the sovereign could politically govern his realm in discrete sub-units, HOUSEHOLDS.
B: From a historical perspective, what benefits have accrued, and have they only accrued to procreative marriages?
C: No, barrenness or sterility has never been a barrier to a marriage. The FATHER of our country, George Washington, was sterile, being in a marriage with a woman who had borne children in her previous marriage. This was actually seen as an ADVANTAGE, since he could not pass on his presidency to an heir.
B: What about children’s protection?(Sorry — lost thread)

B: Talk about the legitimizing of chihldren through the marriage of parents?
C: The state lends its prestige to the marriage, and all the family’s participants, by validating all of them.
B: Here’s another statement from opposing counsel (reads pro-child statement re: marriage) IS that a correct and complete description of marriage?
C: No, its a very opartial description. I see no evidence that the state was MOST interested in the benefits mainly to the child. Creating stable and enduring unions, supporting one another whether of not they had children, as well as support other dependents: blended families were extremely common in the past, due to earlier death and subsequent remarriage. Families comprised step-children, neices and nephews with absent or dead parents, spinster aunts or single uncles, older parents.

I can't wait to read more.

Very good stuff, thanks for summarizing. I didn't know that at all about Dred Scott. Enlightening.

TheArtOfScience wrote:
mooosicle wrote:
I'm going to start building my fallout shelter for the gay apacolypse

Please get in line for your "Gaypocalypse 2010 official Pillow of Heterosexuality" brought to you by Pampers.

Can we change this thread title to [color=#FF0000]Gayapocolypse 2010[/color]? It's got so much more pizazz!

What's your take on this, Nomad? Should California legally sanction gay marriage as a secular right?

weswilson wrote:
B: From a historical perspective, what benefits have accrued, and have they only accrued to procreative marriages?
C: No, barrenness or sterility has never been a barrier to a marriage. The FATHER of our country, George Washington, was sterile, being in a marriage with a woman who had borne children in her previous marriage. This was actually seen as an ADVANTAGE, since he could not pass on his presidency to an heir.

Ouch for the defendants. Following the logic of the Prop 8 folks, this little tidbit means marriage has always been a sham in the US. So what are they worried about?

Robear wrote:
What's your take on this, Nomad? Should California legally sanction gay marriage as a secular right?

I've attempted to explain my position on this before. I believe the Bible says the act of homosexuality is sin, just like any other sin. That doesn't mean I can't be friends with someone believes differently.

I'm not totally sure on which side I fall on the legalization issue though. I can see some valid arguments on both sides(not to be interpreted as all arguments on all sides are correct).

Thank you for that link weswilson. That is a fascinating read. I'm going to have to dig into it a bit later.

Pages