Prop 8 Final Arguments Day Update Afterglow

Well, to start - Maggie Gallagher from the National Organization for Marriage issued the following statement:

"Chuck Cooper is a heckuva lawyer. At stake in this case is the future of marriage in all 50 states, and he's right that this attempt to shut down the debate by constitutionalizing gay marriage will backfire. Americans have a right to vote for marriage. Ted Olson doesn't seem to understand the argument, and judging from today's exchanges neither does Judge Walker. I expect Judge Walker will overrule Prop 8. But millions of Americans do understand why marriage is the union of husband and wife and I believe the majority of the Supreme Court will as well."

Hmmm...word choice, Maggie? "heckuva laywer"? As in "heckuva job Brownie?"

So, the parties blogging for the defense seem to think that Judge Walker will overturn Prop 8. Wow.

Here were the Plaintiffs and company:

From news conference:

Olson: I don't do anything w/o David Boies.

Kristen Perry: Olson and Boies gave two moms their day in court

Olson: If there was ever a trial the American people should have seen, it's this trial.

Olson: It's important for people to understand this discrimination in context of historical discrimination.

Q about DOMA: Boies: if we prevail on broad tact, there are severe implications for DOMA. Too early to tell Court's decision grounds.

Olson: Since we were opponents in Bush v Gore, Boies will pick up ones he won, I'll pick up ones I won, we'll get all 9.

Ted Olson and David _oies just spoke, they are inspiring. Both said this was most imp case of their lives.

Olson: "Our clients - they're not plaintiffs, they're human beings who stand for everyone"

Olson: If there was ever a trial the American people should have seen, it's this trial.

Boies:"Ted gave greatest argument I Have ever heard."

Boies said if ever there was trial that should have been televised, it was this one. If it gets out of the darkness, people will be fair and this will all end.

I don’t know how long it’ll take him to rule. It’ll take him as long as it takes. He gave us 39 questions. He’s a very thoughtful judge.

And from the San Francisco Chronicle:

Winding up a historic trial over same-sex marriage in California, the lawyer for Proposition 8's sponsors told a federal judge Wednesday that allowing only men and women to wed promotes responsible sex and child-rearing, and ultimately ensures the future of humanity.

and

What's next in the Proposition 8 case.
A ruling by Chief U.S. District Judge Vaughn Walker, probably in July, on whether the ban on same-sex marriage violates the constitutional guarantee of equality.
If Walker overturns Prop. 8, its sponsors will seek a stay from the judge or from the Ninth U.S. Circuit Court of Appeals in San Francisco to keep the ban in effect.
The losing side in Walker's court will appeal to the Ninth Circuit, which might issue a ruling by this time next year. The loser at the appeals court could appeal to the U.S. Supreme Court. If the court accepts the case, it could issue a ruling in 2012 on either the constitutionality of the California ballot measure or the overall right of same-sex couples to marry.

Some video:

Prop 8 Final Arguments Day Update Still Going

Back from break:

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...

Prop 8 Final Arguments Day Update After Lunch Break

Chuck Cooper up for pro-Prop 8:

Central purpose of marriage is so offspring can be raised by man and woman

From Twitter:

Cooper on import of marriage for community. Walker: "Do people get married for the benefit od the community?" [Laughter/overflow rm]

Marriage imbued with social meaning and the interests of society. State regulates it because of survival of race.

Walker: Do people get married 2 benefit community? When 1 enters into marriage, one doesn't say, oh boy, I'm going 2 benefit society

Walker: Do people get married 2 benefit community? When 1 enters into marriage, one doesn't say, oh boy, I'm going 2 benefit society

Live-blogging down or slow - just reading Twitter at this point.

Walker hitting the libertarian theme again, why state in marriage biz

If children not raised by a mom and a dad bad things happen.

Cooper is lame-o. He is flustered by very predictible questions by Walker.

Cooper:

And the historical record leaves no doubt, Your Honor,none whatever is the central purpose of marriage in all societies and at all times has been to channel protectionly pro creative relationships between an even during relationship to ensure that any offspring will be raised by the man and woman who brought them into the world.

JUDGE WALKER: When people think of marriage they don't say oh, boy, I am going to be able to benefit society. What you think of is I am going to get a life
partner.
MR. COOPER: Yes, Your Honor.
JUDGE WALKER: Someone I can share my life with.
MR. COOPER: Yes.

COOPER:

the marital relationship is fundamental to the existence and survival of the race. It -- without the marital relationship, Your Honor, the -- the -- society would come to an end.

FROM TWITTER:

(There's an infant gagaging in the overflow room :). Hmm, wonder if this child came into the world in the "naturally procreative way")

Coop: whoa, if I were our opposition, would want my money back.

From Maggie Gallagher (National Organizaton for Marriage - NOM):

judge thinks this logically req fertility tests, if no tests,therefore procreation not a purpose. Wow. Balderdash.

JUDGE WALKER: But the state doesn't withhold the right to marriage to people who are unable to produce children of their own.
MR. COOPER: That's true, Your Honor. It does not. It does not insist --
JUDGE WALKER: Are you suggesting that the state should, to fulfill the purpose of marriage that you have described?
MR. COOPER: No, sir, Your Honor. It is by no means a necessary -- a necessary condition or a necessary requirement to fulfilling the state's interests in -- in naturally potentially pro creative sexual relationships.
JUDGE WALKER: Then the state must be some interest wholly apart from pro creation.
MR. COOPER: It doesn't necessarily follow that {THAO} is true. It rationally furthers the state's interest to extend -- to attempt to channel into the
marital union all potentially pro creative relationships as well as all male-female relationships. It furthers the state's interests, Your Honor, and it isn't a
necessary requirement that the state actually insist that as a condition of marriage that individuals who get married have children or be able to have children. And,
Your Honor, case after case has agreed that the simple fact that all societies and all states haven't required pro creation of marital couples in no way eliminates the
pro creative purpose of marriage, nor does it detract from it.

MAGGIE GALLAGHER ON TWITTER:

Mg: hey judge, creating one family out of ma pa baby. Is it so hard 2 understand?

WALKER:

Parental responsibilities don't depend upon how the child came into the world. Parental responsibilities extend to adoptive parents who had nothing to do with the creation of the child physically. They extend to inlaws and grandparents and a host of other people who are not involved in any way, at least {TKREBG}ly, in the creation of this child as a human being.

FROM TWITTER:

Cooper - marriage is all about sex because "it channels biological drives that might otherwise become socially destructive." OK then.

Walker askg abt evidence that supports him. Cooper wld much rather tlk abt caselaw

Coop trying to say there is "emminent" authority before the court and walker says show me the evidence.

Charles Cooper: "Your honor, you don't have to have *evidence* of this!"
[Whoa]

JUDGE WALKER: Let's move from the millennia to the three weeks in January when we had the trial. What does the evidence show? What does the evidence in this case show with respect to this?
MR. COOPER: Thank you, Your Honor. I believe the evidence shows overwhelmingly that this procreative -- this interest in what many call in the United States, Congress calls responsible procreation is at the heart of society's interest in regulating
marriage. Because, for example, what the evidence shows is eminent -- I am sorry?
JUDGE WALKER: What was the witness who offered the testimony? What was it and so forth.
MR. COOPER: Your Honor, the evidence before you shows that sociologist kingsly Davis in his words has described the universal societal interest in marriage is social recognition and approval of a couple engaging in sexual intercourse in having and rearing offspring. Black stone said there were two great relations in husband and wife first of husband and wife which is founded in nature but modified by civil society with nature directing man to continue and multiply his species and civil society, society's interest prescribing the manner in which that natural impulse
must be confined and regulated.

JUDGE WALKER: I don't mean to be flip, but black stone didn't testify. Kingsly Davis didn't testify. What testimony in this case supports the proposition?
MR. COOPER: No, these materials are before you. They are evidence before you. But Mr. Blankenhorn brought forward -- brought forward the -- these authorities, and that's the social scientists and.. the others. But, Your Honor, you don't have to have evidence of this. This is in the cases themselves. The cases recognize this, one after another.

FROM TWITTER:

Walker: why did you present only one witness, who was not so hot?

Walker: why did you only put on one witness? Cooper: dnt need witnesses to tell you traditional def of marriage

COOPER:

The institution of marriage serves the public interest because it channels biological
drives -- channels biological drives that might otherwise become socially destructive and it ensures the care and education of children in a stable environment. That's the California Supreme Court, Your Honor.

Simply put, government has an interest in marriage because it has an interest in children.

JUDGE WALKER: Let me ask, if you have got 7 million Californians who took this position, 70 judges as you pointed out, and this long his {TOER} that you
have described, why in this case did you present but one witness on this subject, one witness? It seems you had a lot to choose from if you had that many people behind
you. Why only one witness? And I think it fair to say that his testimony was equivocal in some respects.
MR. COOPER: And his testimony was utterly unnecessary for this proposition, {URT}ly unnecessary for this proposition.
JUDGE WALKER: This goes back to the you don't need any enemies point.
MR. COOPER: It goes to -- and these are legislative facts. You need only go back to your chambers, Your Honor, and pull down any dictionary, pull down any book that discusses marriage, and you will find this procreative purpose at its heart wherever you go unless, unless, Your Honor, that book was written by one of their experts or has been written over the course of the last 30 years. Then you will find --
JUDGE WALKER: Yes?
MR. COOPER: That procreation -- what has that got to do with marriage? What?
And the pages of history, Your Honor, are filled with nothing, nothing but this understanding of marriage. You will not find anywhere in the pages of history, nowhere, any suggestion that the traditional definition of marriage ubiquitous in history, across cultures, across time, had anything to do with homosexuality. It had nothing to do with it. In fact, the issue of people's values with respect to homosexual conduct was never in the marriage conversation until the movement for same-sex marriage. Your Honor, at the heart, at the very heart --
JUDGE WALKER: What should I conclude from that?
MR. COOPER: That, Your Honor, at least an important purpose of marriage always has been and still is to channel naturally procreative sexual conduct of men and women -- excuse me -- into enduring stable family units through marriage so that the children of that union will be raised by the man and woman who brought them into the world, to improve the likelihood that that will happen.

FROM TWITTER:

Things poor attorneys do: say things like "case after case" whicch Cooper has done a dozen times, with no case citation.

COOPER:

As we have maintained from the beginning the opposite sex mate of marriage is
itself definitional, definitional because of the -- as again, the Supreme Court has often recognized, the -- because this relationship is fundamental to the
existence and survival of the human race.

FROM TWITTER:

This is much more like a cross exam than a closing argument

C: by definition same sex couples procreate more responsibly. Ok, now i reallly do need a drink. We are in a parallel universe.

Whoa, and now I'm confused. Cooper: "For a same-sex couple to procreate it by definition has to be responsible" um, Yeah.

Copper is officcially off the rails, he has no idea what his argument is. We are in the theater of the absurd.

In case it's not obvious by now, cooper's answer to everything is procreation

I think Cooper is going to be having nightmares for months of Walker asking "What evidence is in the record?"

Walker: wht is evidence voters were motivated by procreation concerns? Cooper: ballot statement, advocacy pieces

Mg:Yay Chuck,pointing out voter guide, other op eds, videos,talking about children need moms n dad!!

When my students used to say "this is shown in case after case" w/o citing them, I usually gave them a C. #prop8 Cooper must not know that.

Cooper: "Even if you conclude on the basis of their facts that they're right, it doesn't matter"

Hmm - technicalities? Cooper insisting that cases can only be tried on rational basis. I think we've had a lot of rulings of strict scrutiny

Going in and out of wireless black holes.

JUDGE WALKER:

Well, the evidence supporting the classification here that you are contending exists is this natural procreative ability of opposite-sex couples which distinguishes them from same-sex couples. That's the evidence. Am I correct?

FROM TWITTER:

Walker pushing on what his point really is about procreation and it is that since hets can have babies "naturally" they get marriage

Walker: are you asking me to invalidate the marriages? Coop dances around, again.

Walker now challenges answer from proponents: are you saying that if I find this unconstitutional, remedy is to void the 18000 marriages?

Cooper says it's not their position to throw out the 18k 2008 marriages

JUDGE WALKER: It was the last question, number 15. Exactly. The common questions to both the plaintiffs and to the proponents. And I am reading from pages 45 to 46 of your response. And your response was,"if as plaintiffs maintain Proposition 8 cannot be reconciled with its own retrospective application as interpreted by the California Supreme Court or with any other feature of California law, the remedy that would yield to the constitutional expression of the people of California's will is sustaining private Proposition 8 eight by giving it retrospective {EFBT} or invalidating the conflicting feature of California law." Do I understand that what you are saying here is that not only am I required to rule against the plaintiffs, but to invalidate the 18,000 marriages, same sex marriages that occurred between June and November of 2008?
MR. COOPER: No, Your Honor. That is not our position at all.
JUDGE WALKER: But that's what these words say.

TWITTER - MAGGIE GALLAGHER:

Mg: walker goes back 2 18000 interim ssms. The court created this problem by refusing 2 stay decision until voters vote. Why punish voters?

FROM TWITTER:

Coop: prop 8 should not be invalidated just because there are 18,000 married couples. I sort of get coops point but he is confusing.

Copper refering ct to Lofton, Florida adoption case uholdng FL ban on gay adoptions

So -- Cooper says it's ok that @lwaldal and I are married. But now he's turning to gay adoption. #prop8

It is so offensive to have #prop8 proponents refer to a case that upheld an adoption ban which leaves kids langushing in foster care.

Cooper: "Parental authority figure of each gender" is optimal child-rearing for kids. He implied because same-sex parenting too new to study

Copp endlessly refers to "cases", "experts", "authorities", with no cite or specifics. Really shoddy. He IS the wizard.

COOPER: Now I want to move, if you may, to an area that the plaintiffs have emphasized. They have gone to great lengths to underscore the religious beliefs of the people who supported Proposition 8. It's hardly remarkable in our country that religious beliefs and religious people are involved in the political process.
It's part of our constitutional tradition from the American revolution to the abolition 95,000 movement to the civil rights movement. And there are issues, many
of them, that confront the legislatures, that confront the body politic that are bound up and inex trick cab {PWHREU} involve moral values and moral judgments.
From the death penalty gambling obscenity, prostitution, and an issue that was before the Supreme Court not that long ago, in the {TKPWHRUBGS} {PWURG} case, the issue of assisted suicide. The court there rejected a substantive due process challenge to a state challenge that prohibited physician assisted suicide and the court noted that throughout the nation Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician assisted suicide and the court held that the constitution permits this debate to continue as it should in a democratic be society. Your Honor, the court was very careful to make
clear that when a court is presented with a claim of asking the court to define some new fundamental right that the court must very carefully analyze that claim and must insist that it be rooted, deeply rooted in the country's history and traditions in order not -- in order to protect against the judiciary unnecessarily taking important issues off the table of the democratic process. This is true also of marriage, we would submit. Again --
JUDGE WALKER: You concede that there are times when it is appropriate for the courts to do exactly that.
MR. COOPER: Yes, of course.
JUDGE WALKER: We have talked about the loving decision and we have talked about the Brown decision and various others.
MR. COOPER: Yes.
JUDGE WALKER: What are the criteria that a court should use in making that determination?
MR. COOPER: Your Honor, I think the criteria is what the -- it's what the Supreme Court itself has articulated, that the right claimed must be deeply rooted in the history and traditions and practices --
JUDGE WALKER: And in this case marriage is a deeply rooted fundamental right. No doubt about that. Okay.
MR. COOPER: Your Honor, I think the criteria
is what the -- it's what the Supreme Court itself has
articulated, that the right claimed must be deeply
rooted in the history and traditions and practices --
JUDGE WALKER: And in this case marriage is a
deeply rooted fundamental right. No doubt about that.Okay.
MR. COOPER: Your Honor.
JUDGE WALKER: And that, as Mr. Olson described this morning, is a right which extends
essentially to all persons, whether they are capable of producing children, whether they are incarcerated, whether they are behind in their child support payments,
there really is no limitation except, as Mr. Olson pointed out, a gender limitation.
MR. COOPER: Well, Your Honor, and that gender limitation is -- is a definitional feature of the right to marry. That is clear from the court's repeated statement that the reason marriage is fundamental is that it is fundamental to the existence and survival of the human race.
JUDGE WALKER: That it is -- because it is a gender-specific right.
MR. COOPER: That.
JUDGE WALKER: That's what you are saying.
MR. COOPER: Yes, I am. The right is --
JUDGE WALKER: Gender specific.
MR. COOPER: The right itself, the right to marry is bound up with and proceeds from the fundamental nature and its fundamental purpose relating to procreation and the existence and survival of the human race. So it is itself by definition the right of a plan to marry a woman and vice versa. That is the right. And Your Honor, that's -- JUDGE WALKER: What that leads me to ask you is, aren't these distinction that we are drawing, sexual orientation distinctions, gender distinctions, from {RA} legal point
of view, are they not all socially constructed?
MR. COOPER: Florida, Your Honor, I think there would be a fundamental difference, at least if I understand the thrust of this inquiry, between, for example, a gender distinction and a distinction drawn along the lines of sexual orientation, because because we took this and the notion of social construction to go to the -- to go to what we think are the very difficult issues surrounding sexual orientation and its amorphous, effectively in definable at least consistently nature. And the simple fact that it is not immutable. Our submission obviously is that sexual orientation is not an immutable at any rate that is an accident of birth.
JUDGE WALKER: An accident of birth?
MR. COOPER: Sex -- your gender -- talking here about --
JUDGE WALKER: It can be changed before birth but not after birth? What do you mean it's an accident of birth?
MR. COOPER: An accident of birth in the sense that that term has been used consistently by the Supreme Court to identify the kinds of immutable characteristics
that go into the calculus on whether heightened scrutiny should apply, in the history of discrimination are the three principal issues.
JUDGE WALKER: And religious discrimination is of course prohibited as one of these fundamental rights and subject to such scrutiny and the state imposes some
classification based on religion and religion is certainly not an immutable characteristic.

ON TWITTER:

Copper seems to suggest that if hets didn"t marry, they wouldn't have sex. And i thought it was other way around.

Walker: arent the disticntions in who can marry all socially constructed? This will be way over Coops head.

It is almost sad to see Cooper flailing so badly. Almost. He is an intellectual midget on this issue.

C: strict scrutiny is for immutable characteristics like race. Walker: what about religion? C: that's a 1st amendment protection, not 14th

Cooper: record before court makes clear that SO (sexuorientation) not immutable. Again no cites to record, no specifics.

Terrible connectivity at present. Cooper talking about vague definition and non-immutability of sexual orientation

COOPER: And here, Your Honor, the traits or the characteristics that have been determined to be immutable and to qualify for heightened scrutiny by the
Supreme Court have been things like race which is obviously determined at birth. It's quote an accident of birth, gender, and I will legitimacy. And as judge
begins {PWURG} also said it doesn't mean it's something that can't be changed, but it is something that
--JUDGE WALKER: Is national origin also one of
those?
MR. COOPER: Yes, Your Honor.
JUDGE WALKER: And people -- I don't know whether they change their national origin. On saint Patrick's day everybody is Irish.
MR. COOPER: I have experienced that change myself.JUDGE WALKER: And people can look to one ancestor and suddenly become that and on another occasion pick another ancestor and maybe even in{SREUPBT} an an says tore {-FRPLT} so these I am mute
ability characteristics they are really not the important factor are they in deciding what the level of scrutiny is?

TWITTER:

Mg: Cooper points 2 their experts saying "astonishing plasticity" of women's oroentation;apa study shows

C on "political power": "high-tech gays" (yes, that's the term) have disproportionally attracted the attention of the Ninth Circuit.

Walker: women and blacks have current power so isnt it a history of powerlessness that determines level off scrutiny?

Walker: isn't history most important in determing const. protection, ie. women have pol power but still get strict scrutiny?

Copper has no abiliity to answer any of these tough questions. He spent the last two months golfing.

JUDGE WALKER: Isn't that the most important factor, that is, this historical context, in that womenare hardly politically powerless. They are a majority
of the population and probably a majority of the voters.They have considerable political power and yet a law which classifies women in some fashion differently from
men is subject to scrutiny. African Americans are hardly politically powerless and they have had enormous political gains in the last 50 years or so and yet laws
that single them out from others would be subject to strict scrutiny. Isn't it that it's the historical context that determines whether or not strict scrutiny
is appropriate for a particular classification more than the political power factor or the I am mute ability factor or these other factors? Isn't that really what
decides the issue?

TWITTER:

Walker: why shld blankenhorn testimony be admitted? Cooper: he is amply qualified. W: Peer reviewed? C: dnt knw

Cooper says. He didn't coome prepared to discuss Blankenhorn. Actually, he didn't come prepped tto discuss anything.

15 min. break

Prop 8 Final Arguments Day Update continuing

Terry Stewart - San Francisco city attorney up now.

...the serious harm that Proposition 8 imposes on lesbian and gay men and their
children, undercut the contention that Proposition 8 is rational. They also support the idea that Proposition 8 was born of animus. Laws that can't be explained by
rational thing give rise to an inference that they are based on prejudice.

From Twitter:

Nearly all black suits in courtroom.

It looks to me like the prop 8 proponents' table is all full of windows laptops.

Stewart and Judge Walker:

...it's (San Francisco) long been the City of love the city where people leave their hearts. It's a fact of our culture.
JUDGE WALKER: The City of love.

Stewart:

I think the most compelling testimony on that subject was the testimony of Ryan Kendall who showed two things. He talked about and showed the impact of that kind of discrimination on him as an individual and he also testified about some of the effects on society at large, some of the ways in which that harm to him caused
the public to incur costs. And to just lay that out quickly, he testified that when his parents found out that he was gay they were horrified that they believed that being gay is a terrible thing, and that they told him so. And they told him in pretty awful terms that they wished he had never been born that they wished they
had aborted him that they would have rather had a child with a disability than a gay child, and that he would burn in hell.

From Twitter:

Alameda county counsel, clearly uncomfortable, now questioned by Walker on whether marriage apps ask your gender. Walker answers for him.

Walker points out that in SF and Orange marriage license app asks "Groom, Bride" and "other" or "none." Much hilarity in court room.

Prop 8 Final Arguments Day Update

Olson Closing Arguments Update:

Heterosexual persons who marry the person of their choice if they are a child molester if they are a wife beater if they are in prison for 15 murders they can marry the person of their choice. Individuals in this case may not marry the person of their choice.

I would like with Your Honor'spermission now to play a couple of excerpts from the testimony by the four plaintiffs starting with plaintiffs Katami and Zarrillo explaining why they want to marry because they can say it better than I can.

Katami in video tearfully describing his partner:

"The love of my life. I love him probably more than I love myself"

Kristin Perry in video:

"There's something so humiliating about everyone knowing you want to make that decision and you don't get to"

Olson:
If we had the time yhonor I could not present more compelling argument than replaying whole testimony of four plaintiffs

Expert Cynthia Cott in video:

When slaves were emancipated they flocked to get married.

Olson:

In 2005 there were 37,000 of California's children living in households headed by same-sex couples. The evidence was uncontradicted curing during this trial and overwhelming that the lives of these children would be better if they were living in a marital household. Even Mr. Blankenhorn, the proponents' witness, the proponents' principal witness agreed with that proposition.

Blankenhorn's Testimony:

"Q. And you say in that sentence, in that sense, insofar as we are a nation founded on this principle, we would be more, emphasize more, American on the day we permitted same-sex marriage than we were on the day before. And you wrote those words, did you not, sir?
"A. I wrote them, wrote those words.
"Q. And you believed them then; correct?
"A. That's correct.
Q. And you believe them now; correct?
"A. That's correct."

Olson:

This has been a great education. I think not just to the people in this room but the people who read this record.

...at the end of the day, as I said, I felt we didn't need this trial but at the end of the day I think it's an enormously enriching and important undertaking.

From Twitter:

Random observation, totally cool to see so many people engaged both here in courthouse and on-line. Big history folks.

Olson:
W

here in the world in 1954 did the Supreme Court come up with this right that didn't exist right before then?

From Twitter:

Olson handling sharp and hard questions by Walker very well. The guy is as advertised

Olson again:

I think it was doctor Meyer who said this. No one as expires as a child to grow up and enter into a domestic partnership. But they do aspire as children to grow up and be married.

Of Judge Walker (on Twitter):

His questions don't seem too aggressive thus far

Olson:

The latest words from the counsel for the proponents is we don't know. We don't know whether there is going to be any harm. And I would submit that we have always done it that way. It's a traditional definition of marriage, which is something that we have always done it that way is the same -- is a corollary to the because I say so. It's not a reason. You can't have continued discrimination in public schools because
you have always done it that way. You can't have continued discrimination between races on the basis of marriage because you have always done it that way.

They are not going to abandon their marriage. And they are not going to stop having children because their next door neighbor has a marriage with a person of the same sex. That is not going to happen.

Proposition 8 discriminates on the basis of sex in the same way that the very law struck down in loving discriminated on the basis of race. They could marry
whoever they want unless that person was the wrong race.

there is no evidence that one couple or one pair of individuals in this state or in this country will decide I'm not getting married because those people are getting married. There is no evidence of that. And there is no evidence that there will be a diminished pro creative instinct, God forbid, because people are allowed in the privacy of their homes to enter into their intimate relationship because they want family like someone else.

So if you have an analysis of the common sense of people, and without, even without all these experts, what were they thinking? I think the clear he is evidence of that is protect our children from learning or being taught that gay marriage is okay. And that means that gay people's marriage is not okay. And that means gay people are not okay.

Now, you can have a religious view that this is not acceptable. You can have a religious view. It was true in the loving case. The argument was made that it's God's will that people of different races not be married. It's in the briefs and it was in the testimony in this trial, that people honestly felt that it was wrong to mix the races, that it would dilute the value of the race and do all of these terrible things. People honestly felt that way. But they were -- they were -- they were permitted under the constitution to think that. But they are not permitted under the constitution to put that law, that view, into the law, and to put
that view into the constitution of their state in order to discriminate against individuals.

Prop 8 Final Arguments Day Update

Overheard on the internet (blogs and twitter)

It’s all different this time, much more like the stories I read about William Jennings Bryan and Clarence Darrow.

About delay of final arguments, Walker says, "June is the month for weddings."

From The San Francisco Chronicle this morning:

As the trial over California's prohibition on same-sex marriage enters its final stage today, the ban's sponsors are urging the judge to go a step further and revoke state recognition of the marriages of 18,000 gay and lesbian couples who wed before voters passed Proposition 8.

Andrew Pugno, an attorney for Prop. 8's backers, said in an interview that the sponsors aren't asking Walker to nullify the 18,000 marriages, but only to rule that government agencies, courts and businesses no longer have to recognize the couples as married.

There is outrage all over the blogs and twitter feeds.

Prop 8 Final Arguments Day Update

Fedcourt Junkie just tweeted the following:

"Excited to be back in Judge Walker's court tomorrow to live tweet the #prop8 closings. Should be quite the spectacle"

"Outside court now for #prop8 closing. A crowd is watching reenactment of trial. Very surreal"

AND

"Whatever happens from here at scotus, the #prop8 trial is now a piece of interpretive theater."

YES!

The Reviews Are In

Obama's Oval Office address receives mixed, mostly tepid reviews but general agreement that he did not "hit it out of the park." Far from it.

From the New York Times:

We know that the country is eager for reassurance. We’re not sure the American people got it from a speech that was short on specifics and devoid of self-criticism.

From The Huffington Post:

Were you looking for something that resembled a fully-realized action plan, describing a detailed approach to containment and clean up? Or perhaps a definitive statement, severing the command and control that BP has largely enjoyed, in favor of a structured, centralized federal response? Maybe you were looking for a roadmap-slash-timetable for putting America on a path to a clean energy future? Well, this speech was none of those things.

From The Boston Herald:

Oval Office addresses do indeed lend a certain gravitas to any issue, but this one on Day 57 of a crisis can’t begin to undo the lasting damage of both the oil spill and an administration flummoxed in its response.

And in the St. Petersburg Times:

While not particularly inspiring, he accepted responsibility for the massive cleanup and signaled he understands this is a serious test of his administration.

Stage Fright

The stage that is a Congressional committee can be a stressful and merciless place to be. Check out General David Petraeus' experience yesterday:
He slumped forward while Sen. John McCain was speaking. (Insert joke here.) Fred Kaplan on Slate suggests it's a "grim metaphor."

Coming up tomorrow BP CEO Tony Hayward will appear before the Energy and Commerce Subcommittee on Oversight and Investigations in the House of Representatives at a hearing on the "Role of BP in the Deepwater Horizon Explosion and Oil Spill." From the Telegraph.co.uk:

"Congressmen will be vying to humiliate the man in the hot seat and he will be well aware that congressional hearings can be part theatre, part show trial, and part ritual humiliation."

How can you not turn in for ritual humiliation?

Prop 8 Final Arguments Day. Finally.

Will be spending the day following the live-blogging of the final arguments in the Prop 8 Trial. Will be following it here and here and here. It's interesting that the defense side did not do live-blogging during the trial in January, but they have a site up now and will be blogging today's proceedings and are now set-up to follow the case through appeals.