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.
(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.]