TWITTER:
Back from a much needed break, but dear god!, Cooper still up!!!
COOPER:
Your Honor, I do -- I hope I have sharpened by thoughts a little bit here as my closing argument comes to a close.
COOPER: Your Honor, I want to address I think finally here a -- the issue of whether or not there's a legitimate basis to -- for people of this state or anyone to be concerned that redefining marriage, redefining a traditional understanding of marriage to include same-sex couples presents any basis for concern about the harm to marriage that may result and to the interests that the institution of marriage has
historically been designed to advance. Many people believe, Your Honor, that that
harm will -- that such harm is threatened. But before analyzing this I think we have to begin with two propositions. The first one is that redefining the institution will change the institution. I think Mr. Blankenhorn really summed it up quite well. If you change the definition of a thing it's hard to imagine how it could have no impact on the thing itself. The plaintiff's experts acknowledge -- excuse
me -- the plaintiffs' expert and others who have thought and are expert in this field have acknowledged that change will result. Indeed when same-sex marriage was
legalized in Massachusetts Professor Cott commented one could point to earlier water sheds but perhaps nonequite so explicit as this particular turning point."
JUDGE WALKER: What do you make of Mr. Blankenhorn's statement that when same-sex marriage is legalized that America will be more American or will be closer to the American ideal. That was your own expert.
TWITTER:
Cooper now in closing moments. Talking about "many people's concerns" that if you change the definition of marriage it will change marriage.
Coop: In short, point seems to be we can't be sure what will happen so lets not take the chance
Coop: the threat of harm is too great. Katie bar the door!
MR. COOPER: Yes, sir. I think Mr. Blankenhorn is giving voice to a sentiment, and
prosecute Mr. Blankenhorn shares that sentiment with many of my friends for the plaintiffs. And I think he shares that sentiment with many of my fellow Americans.
But he still believes that the threat of harm to a central and vital social institution, marriage, and to the interests that he believes that it serves is too
down thing to run the risks of an ate the {TAOUD} that Mr. Blankenhorn favors, as he has said, the advent of same sex marriage. And Your Honor, I believe that there
are many who went in the polling place with that sentiment. That's my speculation. That's all it can be. But as rabbi Michael learner has said, a well known
person and certainly an advocate of same-sex marriage, there are millions of Americans who believe fervently in "quality for gays and lesbians but who draw the line at marriage. Their {HARDZ} are, I would submit to you, pure, as pure as defined by the plaintiffs. But they still believe -- this is profound. This could be
profound. It could -- it could portend some social consequences that would not be good ones.
And, Your Honor, that reality, the reality that I didn't know, because no one can know, Professor Cott doesn't know. Blankenhorn agreed it's impossible to be completely sure about a prediction of future events. There is no -- has never been anyone who knows what tomorrow will bring. But if there is a legitimate and rational basis to be concerned about that, it couldn't be more rational for the people of California to say "we aren't going to run that risk, however we assess it. There is a risk. And we're going to wait. We want to see what happens in Massachusetts. We want to see what happens right here. And elsewhere. And in the --" And perhaps, Mr. Olson and his clients, whose sentiments, you know, are powerful, will be able to
convince their fellow Californians that in fact they are right and this is -- this should happen.
TWITTER:
Cooper: millions of Americans blve in ssex equal rights but draw line at marriage. "their hearts are pure"
JUDGE WALKER: A disability, a classification, has been put on marriage which disables people who wish to marry others of the same sex. In order to disable
certain citizens do you not have to show a core relative benefit to others or to society? And the "i don't know" or you don't know where this is going to lead answer, is that enough to impose upon some citizens a restriction that others do not suffer from?
COOPER: And so this -- so as we have been -- it has been our position from the beginning, we don't have to prove that including same-sex marriage within the definition or redefining the definition to include same-sex marriage would visit harm upon the institution and the interests that it serves, we submit to you that
is not something that is our burden and I think that's what your correlative benefit question goes to. Rather, we only have to prove that including same-sex couples
would not serve those interests, either at all, or not to the same extent.
TWITTER:
Coop: we don't have to prove harm, only that if we include same sex couples it will change the institution. Back to gobblygook
COOPER: And one of the points it raid, Your Honor, I think really goes to the heart of the matter, and certainly to the heart of our submission. In that it is
the proper role of the legislature not the court to fashion laws that serve competing public policies. The legislative process involves setting priorities, making difficult decisions, making imperfect decisions, and approaching problems incrementally.That process is what is at work in this state. And it's at work elsewhere in this country. And as the court in {TKPWHRUBGS} {PWURG} said, there is a debate about the morals, the practicalities, and the wisdom of this issue that really goes to the nature of our culture. And the constitution should allow that debate to go forward among the people. Thank you.
TWITTER:
Cooper done. Blessedly.
Cooper concludes with "the constitution should allow this debate to continue among the people." Olson back on for finish.
JUDGE WALKER: Thank you, Mr. Cooper. Mr. Olson, why don't we just begin at that
point that Mr. Cooper left off with. And that is, in a sense, isn't the danger, perhaps not to you, perhaps not to your clients, the danger to the position that you are making is not that you are going to lose this case, either here or at the Supreme Court or the Court of Appeals but that you might within it. And in the other
areas where the Supreme Court has ultimately constitutioned something that touches upon highly social issues and taken that issue out of the political realm that all that has happened is that the forces, the political forces that otherwise have been frustrated and generated and built up this pressure and have, as in a subject matter that I am sure you are familiar with, plagued our politics for 30 years, isn't the same danger here with this issue?
MR. OLSON: I think the case that you are referring to has to do with abortion. And the cases upon which we rely in which the courts have responded to the needs of the civil rights of our citizens have been entirely different cases. They have relied on, as we do, fundamental established constitutional law. Because the argument that Mr. Cooper makes is essentially the same argument that was made to the loving court, which by the way, the loving court unanimously decided to strike down 14 or 15 miscegenation statutes California had been the first 20 years before that. When it got to the Supreme Court in loving it became unanimous and we stand here today thinking how could that have been? In 1967. That's only 40 years ago. We would not -- we would have pun punished as a felony in the state of Virginia the president's mother and father if they had tried to travel there and be marry. The same argument
was made to {THUR} good marshall and Ruth Bader Ginsburg. We are talking about {kin} rights. That's not breaking new ground. We are talking about allowing people to marry the same person that the love as we have the rest of our society.
TWITTER:
Olson up on rebuttal. Walker asks right off with whether a court victory is a good thing given the political landscape.
Olson: you are refering to what happened with abortion, and yes, we understand the politics, but at some point a stand has to be taken. ...
W: isn't it a danger not that you'll lose the case, but that you'll win, creating a new roe v. Wade? Olson: wre tlkg abt fundamental rights
Olson: the other side has to prove that the interest in procreation is affected by same sex getting married. Go ahead, take a shot.
OLSON: Now, Mr. Cooper's argument is -- and I would know he would like to take back these words and I know why he would like to take back these words. We don't know. We consequent have to prove anything. We don't have any evidence. Yet he relies on persons -- he was reading from articles written by various persons just a few moments ago from this {POED} {KWRUFPL} who did not come into this courtroom and testify under oath and subject themselves to cross-examination by my colleague Mr. Boies. Some of them didn't come into court because they had been cross-examined by Mr. Boies. But you do have to know -- you can't take away the rights of tens of thousands of persons. Those rights were recognized and did exist in California. I submit that they should have existed before the California Supreme Court decision and before Proposition 8, but you can't come in here and say I don't know and I don't have to prove anything and I don't need any evidence except for some people writing in books who won't come into court and subject themselves to the judicial process. You asked a very good question. I was about to start with it. That we talked about -- Mr. Cooper talks about procreation as the fundamental basis for marriage. And you made the very good point, well, don't you have to prove that
Proposition 8 does something to protect procreation, channel -- what Mr. Cooper calls the channeling function which is a new term for me today that the State of
California is in the marriage business to channel us, or those who are unfortunate enough to live in California get channeled. But he does have to prove the Romeer
court specifically says that under the lowest standard of review you have to prove that you have a legitimate interest and that the object, Proposition 8 in this case
advanced that legitimate interest. So how does preventing same-sex couples from
getting married advance the interest or protect the interest of procreation? They are not a threat to us. What is one single bit of evidence if you accept the channeling function if you accept the right that the State of California has the right to do that and I do not this is an individual constitutional right and every
Supreme Court decision says it's the right of the person. It's not the right of the State of California to channel us into certain activities or in a certain way.
What you do have to do is say Proposition 8 somehow protects this thing that's going to happen. Mr. Cooper finished up by saying you have to admit my definition the traditional definition of marriage which was not the definition in 14 Supreme Court decisions it wasn't the definition of doctor Cott it wasn't the definition of doctor Peplau we had witnesses that talked about the institution of marriage going far back, the Supreme Court said it's older than the bill of rights older than our political parties. That's not something new. It's marriage. It's not single sex marriage or interracial marriage or anything like that. Mr. Cooper says you have to accept the fact that first of all you have to accept my definition it has to be between a man and a woman. Then if you have oh marriage between a man and a man or a woman or a woman it will change the marriage. Well of course it will because you started by defining the term that you wanted to define. What we are talking about here is allowing individuals who have the same impulses the same drives the same desires as all of the rest of us to have a relationship in harmony, stability, and to form a family in a neighborhood, all of those things that the Supreme Court talked about. And now tell me how it helps the rest of the citizens of California to keep them out of the club? It doesn't.
TWITTER:
"You can't come in here and say I don't know and I don't have to prove anything and I don't need any evidence "
Olson repeats things Cooper said like "the state's channeling function," "we don't know," "we don't need any evidence" drawing laughter here
Olson. Brilliant. Love him. Want him on our side on all the issues we care about.
Olson: happy to have Blankenhorn as an expert and shows another clip from him that support our side
[I love all the #HighTechGay in my timeline now! Trend baby! Trending is POLITICAL POWER ;) ]
Walker: do we have a political tide for marriage? Olson: yes, there is, but that is not a courts role.
Olson: not right for a judge to base decision on how far political tide has run. Cnt wait any longer
Olson: not right for a judge to base decision on how far political tide has run. Cnt wait any longer
Olson now on "threat of irresponsible procreation" - "the clients I represent don't pose that threat"
"Some judge is going to have to decide what we have asked you to decide and there will never be a case with a more thorough presentation"
Olson: ballot documents never talk about procreation, they talk abt protecting children. Gays not ok. Scary. Bad.
MG: Ted says all that stuff in voter guide about moms and dads doesn't count because word procreation wasn't used.
Olson on official prop 8 ballot - "I couldn't find the word 'procreation' but I could find 'activist judges' and 'protect our children'"
Mg:Olson says 14 sc decisions, plus 8 great experts support their def of marriage. Who gets 2 decide.?
Olson nails the immutability piece. Then says "and Blamkenhorn came over to our side." courtroom and yours truly laugh heartily.
Olson doing a trial recap. On immutability - "it's about a sexual identity that most people either have or don't have" - core identity
Olson: voter info in favor of #prop8 made no mention of procreation
And then Olson handily tosses out the #HighTechGays argument - pointing out that that case was thrown out and later superceded
Olson: if you exclude people from marriage you have to have a reason.
Olson: no good reason for state to take such a fundamental right away from same sex couples
Olson: I submit, "I don't know, and I don't have to put evidence"--to Mr. Cooper does not cut it when you're taking away basic human rights
OLSON: You cannot then in the face of all those decisions by the United States Supreme Court say to these individuals we are going to take away the constitutional right to liberty privacy association and sexual intimacy that we tell you that you have and then we will now use that as a basis for not allowing you the freedom to marry. That is not acceptable. It's not acceptable under our constitution. And Mr. Blankenhorn is absolutely right the day that we end that we will be more American.
JUDGE WALKER: Very well. Thank you,
Mr. Olson. Thank you very much, Counsel for the advocacy on both sides. It's been splendid both written advocacy and oral advocacy and the presentations that you have made. So if there is nothing further.
MR. COOPER: No furnish.
JUDGE WALKER: Very well. The matter is submitted. Thank you very much.
TWITTER:
And it's over. Olson walks to Cooper for a handshake...
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