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
