9th Court of Appeals: Prop 8

Oral arguments in Perry v. Schwarzenegger, aka the Prop 8 trial, will be held before the 9th Circuit Court of Appeals today at 1 pm EST, 10 am, PST.

Set C-SPAN to stun and get ready for an all out brawl, 9th court style.


Towleroad hosts a live chat and special coverage during and immediately following the hearing. Featuring Richard Socarides, Attorney and White House adviser under President Bill Clinton and bloggers Andy Towle and Corey Johnson.”

Or watch it live, online: https://www.calchannel.com/channel/live/4

And hopefully I’ll post my reax sometime today, though who knows when for sure…

Prop 8 Question

Am I correct in understanding that if the 9th Circuit Court of Appeals agrees with Judge Walker’s decision same-sex marriage will necessarily be legal in the entire jurisdiction of the 9th Circuit Court of Appeals?  Pictured Below.

Cautiously Optimistic on Prop 8

On really big decisions, especially ones that involve a lot of media coverage, the court will give the lead counsel the verdict ahead of time so that they can prepare for media and immediate appeals.

Vaughn Walker has a history of doing this and last night at 6PM the DIs (villains) filed a motion for Stay Pending Appeal, exactly what they would do if they knew they were going to lose.

This does a much better job of explaining it than I do.

Prop 8 Verdict

Tomorrow, between 1 and 3.  I will comment no doubt.

Between bronchitis and medicating bronchitis, I’m not terribly awake so… yeah.  Just thought I’d tell anyone who hadn’t heard.

Prop 8 Closing Arguments

Should you wish to read the entire thing, it is available here.

From what I can tell, there’s only one argument that Prop 8 Proponents have, which is that only heterosexuals can get accidentally pregnant, so marriage is necessary only for them.  It’s a strange argument, no doubt, but it is essentially the only quantitative difference between gays and some heterosexuals.  I say some because, of course, people who are infertile, past menopause, or who have no intention of reproducing are allowed to get married, so long as their genitals look one way or another.  To say that marriage is only about protecting children from being accidentally created is… well… changing the definition of marriage, which is supposedly something these guys are against.  Judge Walker said it nicely.

And [marriage], 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.

Judge Walker asked a series of penetrating questions, I was quite impressed.  They were the questions I would have asked, but much less snarky.    He asked why the chief witness for the Prop 8 side had said we’d be more American the day we allowed same-sex marriage, he asked why it’s OK to take away the rights of a minority when nothing good comes of doing so, he wanted to know why it wasn’t gender discrimination if not homosexual discrimination, and he wanted to know if it was appropriate for the court to make a decision still being fought over politically.  And of course Mr. Olson was eloquent as always.

What we’re 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 and 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.

These are, undoubtedly, very pretty words.  But I actually think the entire decision is going to come down to one exchange between Walker and Olson, and it’s not necessarily a terribly pretty one, but it is, I think, the most important.  And that is, is it politically viable to send this to the Supreme Court now?  It’s an important question, and one that a lot of people who support gay marriage disagree on.  There was a lot of hostility and distrust from the gay community at the beginning of this trial because they were afraid it was doomed from the start and would sink the chances of gay marriage getting passed because the Supreme Court is so conservative (little c).

This is a long excerpt, but as I think everything depends on it, I’ll leave it long.

THE COURT: I fully understand. But there was already a tide running, a political tide running with respect to interracial marriage. And, as Mr. Cooper duly commented about the Supreme Court, the Supreme Court took note of that. Now, do we have a political tide here that’s going to carry the Supreme Court?

MR. OLSON: I believe, Your Honor, that there is a political tide running. I think that people’s eyes are being opened. People are becoming more understanding and tolerant.  The polls tell us that. That isn’t any secret.

But that does not justify a judge in a court to say, “I really need the polls to be just a few points higher. I need someone to go out and take the temperature of the American public before I can break this barrier and break down this discrimination.”

Because if they change it here in the next election in California, we still have Utah. We still have Missouri. We still have Montana.  This case is going to be in a court. Some judge is going to have to decide what we’ve asked you to decide.

And there will never be a case with a more thorough presentation of the evidence. There will never be a case with such a wildly crazy system that California has. There will never be a case more like Romer, where the right existed and hen it was taken away. There will never be a case against the background.

The Supreme Court really made that step that you are talking about, in Lawrence vs. Texas. And that overruled Bowers vs. Hardwick, which was only 20 years earlier. But that broke the barrier by saying that the behavior, the conduct between the individuals is a right of privacy, and it’s protected by the Constitution.

And the right of privacy is the same right that we’re talking about in the context of marriage. And I don’t think that is justification for waiting any longer.

And, as I said, the most compelling thing that I have read on that subject was the arguments that were being made to Martin Luther King saying, you know, “You ought to ease up. The people aren’t ready for these kind of changes. There’s going to be a backlash.”

And his letter from a Birmingham jail explaining why he could not wait to press the civil rights of his fellow citizens is as compelling a statement on that subject that’s ever been written.

And that’s the argument.  Everything else is proven, Prop 8 is unconstitutional, it’s wrong, there’s nothing that the Proponents have said that holds any water.  The only argument holding any water is the one Judge Walker is acknowledging, which is that maybe America isn’t ready to be the place it promises to be.  And there are many pragmatists, old and young, gay and straight who will agree with that, and there are many idealists who are crying and screaming and gnashing their teeth at the thought that politics is ever more important than human decency.

I think Judge Walker is ultimately a pragmatist, but he’s got a long view of things, and I think he’ll want to be on the right side of history.  So, my bet is that he’ll rule in against the constitutionality of Prop 8 and do so very conservatively and thoroughly, the real question is whether he’ll immediately reinstate gay marriages or not, and I tend to think he won’t.  But maybe.

Our Fate is in His Hands

The Defense Rests; Prop 8 Trial

The trial is over for now. In the near future, the judge will call both sides to give their closing arguments. He wants to familiarize himself with all of the documents he’s been given. It’s a lot.

Today we learned even more about the defense witness Mr. Blankenhorn, now being called Blankenhorny thanks to a particularly saucy response to one of Boies questions.

Boies: Go to your third rule, sex
Blackenhorn: That is an interesting subject
Boies: I don’t want to fall into the trap of making sex boring
Blackenhorn: Maybe together we can make it interesting

I’m fairly certain that witnesses making sexual overtures to the opposing council is generally frowned upon.  We also learned that the lead witness for the defense thinks that same sex marriage is good for couples and children, he just thinks it’d make “normal couples” unhappy.  And that Judge Walker is growing impatient with how obnoxious the defense witnesses are.

Q: I am going to try to make things go a little better today, good morning Mr Blankenhorn. Do you believe marriage is public good?
A: Yes I do
Q: And you believe that children benefit from their parents being married?
A: yes certainly
Q: And do you believe that children of G&L couples would benefit from their parents being married?
A: Well, I do think it would be better for them
Q: You absolutely believe it would be better for children of same sex couples to have married parents?
A: Yes
Q: (reads from B’s book) You say the rights of G&L should take second place to the institution of marriage?
A: Yes, I was trying to say — I was saying — I meant that I accepted the validity of the arguments of those who disagreed with me, but my answer is yes.
Q: “With some anguish I would choose marriage as a public good over the rights of same sex couples.”
A: Yes, and the whole purpose of my book –
Q: I’m not really interested in the purp –
A: I am exploring in these sentences the context of my arguments. I want you to understand –

And the Judge even felt compelled to give him a lecture.

Q: You may important points to make –
A: I do actually
Q: But this is not a debate…
A: I’m not trying to debate
Q: Your honor, please instruct the witness to listen to the questions.
WALKER: One thing we say to juries about expert witnesses is to listen to the witness, including the DEMEANOR of the witness, sometimes gauged by his responsiveness to questions. Because I am sure you would not want your demeanor to be a negative while you are on the stand, so please answer Mr Boies questions as he asks them. Your counsel will have a chance to elicit further discussion during redirect, but please answer responsively.

And in case you’re thinking one Mr. Blankenhorn didn’t deserve it, here’s an example of his belligerence.

Q: I want to pursue whether polygamous marriages are consistent with your so-called rule of two –
A: We’re down to so-called?
Q: Well let me ask you question. If a man has five wives –
A: No he has five marriages, each is one man one woman
Q: So is that consistent with your rule of two?
A: Scholars say yes
Q: You are transmitting the words of scholars?
A: You are putting words in my mouth
Q: No I am not
A: Yes I think you are
Q: Okay let’s look at your deposition
A: Well I was trying to base my arguments on scholarship. Other scholars have other views. Ethnographic scholars have made these arguments –
Q: Well I am just addressing whether I put words in your mouth. Just read page 300, you are basing your analysis on highly regarded scholars –
Q: Let me read what you said: “I am not making things up on my own, these are not my own conclusions, I AM A TRANSMITTER OF OTHERS” VIEWS. Did you give that testimony under oath at your deposition?
A: Yes

We also learned that the so called expert had read almost no literature about the subject.

Q: Last three pages are a series of references, see that?
A: Yes
Q: This is a long list, glancing at it, have you rest most or not most?
A By most do you read 50%
Q: Trying to determine whether its easier to list those you have or haven’t, which is faster
A: Have not read at least 51% of these
Q: then tell me what you have NOT read.
A: (deep, deep sigh) Most of these I have not read.

WALKER: Is the question “read” or “not read?”

Q: Read, your honor.
A: Estrich, Goodridge, Johnson, I think. I think those few are the ones I have read.
Q Did you read both of the Estrich?
A Just his book
Q: You’ve read four or perhaps five of the forty listed references here?
A: That’s right

This is how the plaintiffs finished up.  The defense asked about 5 questions before resting.  I think they knew there was nothing they could say that would make it better.

BO: There’s something here called an abstract. You are familiar with what an abstract is, are you not?
DB: Of course.
BO: Reads that children of same sex couples no different in developmental outcome that children of heterosexual couples. Do you know of this study and other such studies?
DB: Yes.
BO: There’s no singularly accepted universal definition of marriage? Marriage is constantly evolving?
DB: Yes sir. I wrote those words in my book.
Boies: No further questions, your honor.

And the judge continued being classy.

WALKER: I want to thank the attorneys for pleading, fine work, many younger lawyers in the case here in the courtroom and behind the scenes, you old hands should take great pride and pleasure in their work. You have done a wonderful job on an extraordinary case. I want to congratulate you for the fine work you have done here. Thank you.

Prop 8: Wait, Really?

Lead Witness for Banning Gay Marriage: I believe that adoption of same sex marriage would be likely to improve the well-being of gay and lesbian households and their children.

This man, Mr. Blankenhorn, is so vitriolically opposed to gay marriage that he’s the primary witness for the defense.

He thinks gay marriage will be good for LGBT and children. And he’s opposed to it??? WHAAAT?!

EDIT: Have another quote for head explosion: We would be more American on the day we legalized gay marriage than the day before.

Again, he is against gay marriage.

What happened in Prop 8 today?

The defense (yes on 8 ) called it’s first witness.  The Plaintiffs objected because they did not consider him to be an expert.

During the cross, the Plaintiffs got the witness to admit that DADT and DOMA were “Official Discrimination,” caused the Defense council to object that their own witness was not an expert (to much laughter), and, finally, got the witness to say that Prop 8 was discriminatory.  The cross isn’t even over yet.

God I wish this was being televised.  Rob Reiner better do a heck of a job making it into a film because it could be Inherit the Wind.

Who will vote how on Prop 8; Supreme Court Justice breakdown

So, I’ve been trying to figure out how I think SCOTUS breaks down for the Prop8 vote.  I am going to be fairly optimistic based on the quality of the argument and Olson’s record with SCOTUS up to now.  Argued over 50 cases in front of SCOTUS, has won 3/4ths of them, including the decision today that said Corporations have freedom of speech and therefore can spend as much as they want on politics.  He’s clearly good at getting SCOTUS to expand rather than deny rights, no matter the public opinion.

Of course, there are 6 Catholics on the bench, and the Catholic Church, along with LDS, was responsible for most of the mobilization in support of Prop 8.  Anyway, in my optimism, I think it’s even possible for a 6-3 decision declaring Prop 8 unconstitutional.  Of course, 5-4 against is just as possible. No means declaring it unconstitutional, yes is saying prop 8 should stay.

And if anyone has any insight, feel free to post. These are mere conjectures based on what I can find on the interwebs.


Pros: He donated legal to Romer vs. Evans which demanded equal rights for gays in Colorado. Fairly constructionist approach to Constitution, which is how Olson is making his case.

Cons: Catholic, part of the conservative block (though he has broken with them before), really into states rights

Vote: Likely yes, but some foundation for a surprise no


Pros: Staked out the anti-sodomy laws position in the mid-80s as a dissenting opinion, which eventually became the majority position in 2003. Considered part of the liberal block. Not Catholic.

Cons: None that I can find, though there’s nothing suggesting he’s particularly Pro gay marriage either.

Vote: Probably No


Pros: Just the one, he’s a big fan of the Constitution and Olson is making a very very strong argument.

Cons: He hates gay people. He’s the leader of the conservative block. Catholic. And he really hates gay people.

Vote: Burn all gay people at the stake Definite Yes.


Pros: Kennedy has often taken a strong stance in favor of expanding Constitutional rights to cover sexual orientation. Though considered conservative, often a swing vote. References foreign law for precedence often.

Cons: Conservative more often than not. Catholic.

Vote: Likely No


Pros: None

Cons: Extremely conservative. Extremely into states rights. Performed a wedding for Rush Limbaugh. Even Scalia thinks he’s way too far to the right, “I am an originalist, but I am not a nut.” Super into religion, and thinks that religion should be allowed to be a lot more involved in public life. He also hates the gays.

Vote: Not just Yes, but a Yes to the RIGHT of Scalia


Pros: She is awesome and my favorite. (Also liberal, pro-choice, pro-gay)

Cons: None

Vote: No


Pros: Liberal. Refers to foreign law. Seems to like the gays.

Cons: None that I’m aware of.

Vote: No


Pros: Was against anti-sodomy laws well before the court, but also was a student.

Cons: Conservative. Known as “Scalito”, though definitely to the left of Scalia. Catholic.

Vote: Almost certain Yes… but maybe…


Pros: Some of the anti-Hispanic rhetoric exhibited by the yes on 8ers will probably not make her think highly of them. She lives in Greenwich village. Considered an ally, though little to support this.

Cons: Catholic.

Vote: Likely no, little to go on though.

4 extremely likely nos, 1 probable no
3 almost certain yeses, 1 most likely yes

Excerpt from Prop 8 Trial today

Plaintiffs will call Dr William Tam who is a supporter of Prop 8. David Boies will examine.

Boies: The Netherlands legalized polygamy?
Tam: It shows the moral decay of a liberal country, in their views of sex
B: You say here that the Netherlands legalized polygamy and incest after legalizing same sex marriage?
T: Yes
B: Who told you that?
T: The internet
B: The internet?
T: Yes

B: Somewhere out in the internet, it says the Netherlands legalized polygamy and incest? Did you ever find something that said it was true?
T: Yes
B: So somewhere on the internet it says polygamy and incest were legalized after same sex marriage?
T: Maybe not incest
B: Wait, it says incest here
T: Not in this document
B: But it says that right here
T: No, it says that if a country is so liberal then there will be moral and social decay.
B: Sweden accepted same sex unions in 1994, traditional marriage is no longer valid.
T: Yes
B: But those are civil unions not marriage, and you support civil unions.
T: Well, I said I support domestic partnerships.
B: Two minutes ago you said you support civil unions.
T: Well, I don’t know the difference
B: What is the difference?
T: Seems closer to marriage, Domestic Partnership does.
B: Because of the name?
T: Well, yes.
B: But Domestic Partnerships are the same as marriage except for the name?
T: Yes
B: They are exactly the same as the marriage except for the word?
T: Yes
B: So you believe pedophilia and incest will happen?
T: If this is a civil right, why won’t these other groups ask for marriage for incest or pedophilia?
B: Right now, can people of any age or relationship become domestic partners? A man and a ten year old girl? A man and his sister?
T: No
B: Domestic partnerships are limited to people of a certain age and relationships?
T: Yes, that’s why I support it
B: So having domestic partnerships doesn’t mean incest and pedophilia?
T: Ah, I see your logic now.

B: Yes, do you see what I mean?
T Yes I do
B: But do you think if the name changes to marriage, then we will have all this incest and pedophilia? Just because we change the name from domestic partnership to marriage?
T: No, but children will fantasize who they will marry, about marrying a man or a woman. You may say I am a paranoid Chinese parent. However, if domestic partner is defined as it is now, then we can explain to children, yes: same sex partners want a life commitment and we have domestic partnerships for them. But if you mix up marriages for different kind of sexes, I have parents coming to me asking what shall I tell my children.
Boies: Are you finished?
T: Yes
B: You agree that just because you allow Gays and Lesbians to marry, you don’t have incest, right?
T: Yes
B: Or polygamy?
T: Yes
B: Is it also true that you recognize it is important to Gays and Lesbians that they be able to marry?
T: Yes
B: Just as your children benefit from you and your wife being married, as will children of same sex couples?
T (pause) No.
B: No?
T: No
B: You don’t think children want their parents to be married?
T: Not sure what you are trying to get at
B: This: children of same sex couples want their parents to be married because the word means something.
T: Um
B: But you recognize it’s important? And important to those children, right?
T: I guess so.