Perry v Schwarzenegger Will Be Broadcast...
January 9, 2010 11:35 AM   Subscribe

"On [Monday] January 11th, a remarkable legal case opens in a San Francisco courtroom—on its way, it seems almost certain, to the Supreme Court. Perry v. Schwarzenegger challenges the constitutionality of Proposition 8, the California referendum that, in November, 2008, overturned a state Supreme Court decision allowing same-sex couples to marry. Its lead lawyers are unlikely allies: Theodore B. Olson, the former solicitor general under President George W. Bush, and a prominent conservative; and David Boies, the Democratic trial lawyer who was his opposing counsel in Bush v. Gore." "Chief U.S. District Judge Vaughn Walker approved court-operated cameras in his courtroom for delayed release on YouTube, but rejected a bid by media organizations to televise the proceedings themselves for live broadcast."
Walker concluded "it is just the type of case that warrants breaking with traditions that generally have outlawed cameras in the nation's federal courts.

'I think it's worth trying in this case,'the judge told a packed courtroom.

Walker is permitting court-operated cameras in his courtroom for delayed release of the Proposition 8 trial on YouTube. He becomes the first federal trial judge in the West to make use of an experimental program put in place recently by the 9th Circuit Judicial Council, the policy arm of the federal courts in nine states, including California."
Several federal courthouses around the country, however, will provide a live video and audio feed of the trial.

Perry et al v. Schwarzenegger et al -- Challenge to "Proposition 8" Official Website.

The United States District Court for the Northern District of California YouTube channel.

Previous FPPs about Prop 8: 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9
posted by ericb (127 comments total) 11 users marked this as a favorite

 
I heard about that on the radio. The conservatives are against that, because they don't want to be mocked for being anti-gay rights/marriage.

That says to me they really haven't thought this over, and really aren't ready to defend their position as a logical one. If their position is inherently easy to laugh at, it must be in some way ridiculous. And if you want to go to court to stop someone from marrying, I think I'm free to laugh at you as much as I want. I'm an American, and I have liberties like that.
posted by mccarty.tim at 11:38 AM on January 9, 2010 [4 favorites]


In a fund raising letter sent out Friday National Organization for Marriage's Brian Brown states:
"We do not expect to win at the trial level, but with God’s help, at least five members of the current Supreme Court will have the courage to defend our Constitution from this grave attack.

...But there’s a topline message here about this trial even many informed voters don’t yet realized: It’s not about California, it’s about the whole country. Gay-marriage advocates are in federal court arguing for a federal constitutional right to gay marriage that would trump not only Prop 8, but the laws of 45 other states, including the 30 other states where the people have passed state constitutional marriage amendments. That’s right, the Constitution drafted by our Founding Fathers contains a right to gay marriage–in their twisted view. This is judicial activism on steroids, and a flagrant disrespect for civility, common sense, and democracy."
posted by ericb at 11:39 AM on January 9, 2010 [1 favorite]


*shakes fist at ericb*

I was going to make this post! But yours is much better than the one I was kind of vaguely working on.

This will be interesting to watch. And infuriating, I assume; I hope they disable comments on the youtube channel.
posted by rtha at 11:40 AM on January 9, 2010 [1 favorite]


The conservatives are against that, because they don't want to be mocked for being anti-gay rights/marriage.

Yep.
"A vocal gay marriage opponent who volunteered to become a defendant in the case challenging California's same-sex nuptial ban is now asking to be removed from the case.

Hak-Shing William Tam was one of the five official sponsors of Proposition 8 who formally 'intervened' in a federal lawsuit challenging the voter-approved ban. The lawsuit officially names the state as the defendant, but Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have refused to defend the voter-approved ban.

On Friday, Tam told U.S. District Court Judge Vaughn Walker that he fears for his and his family's safety. In his court filing, Tam's lawyers say the trial will bring him unwanted publicity and expose him to retribution from gay marriage supporters.

Tam also says the case has been more time-consuming and more intrusive into his personal life than expected."
That's standing up for your convictions!
posted by ericb at 11:42 AM on January 9, 2010 [10 favorites]


>Gay-marriage advocates are in federal court arguing for a federal constitutional right to gay marriage that would trump not only Prop 8, but the laws of 45 other states, including the 30 other states where the people have passed state constitutional marriage amendments.

Is that right? Would we really get federally recognized gay marriage as a result of that landmark case? Because if so, that paragraph was read really happy even though it was meant to read scary.
posted by mccarty.tim at 11:43 AM on January 9, 2010


Is that right?

That's my understanding.

"The plaintiffs in Perry seek to have the federal courts strike down Proposition 8 as contrary to the United States Constitution. The case is widely regarded as a landmark case that will be appealed to the Supreme Court." *
posted by ericb at 11:48 AM on January 9, 2010 [5 favorites]


Is that right? Would we really get federally recognized gay marriage as a result of that landmark case?

If the courts find in the plaintiffs' favor and the Supreme Court upholds, then, yeah. It would guarantee a federal right to marriage that would trump state laws, a la Loving v. Virginia. Unfortunately, it's not at all clear that there are five justices in favor of equal rights on the current Court.
posted by EarBucket at 11:54 AM on January 9, 2010 [1 favorite]


Yeah, there's no way in hell I can ever imagine Scalia, Thomas, Alito and Roberts ever allowing themselves to be argued into that position, regardless of the merits.

Kennedy, who might be considered the one possible conservative to flip, has certainly signaled his willingness to embrace an incrementalist approach to gay rights, but I don't see him siding with such a monumental upheaval in other states' rights to define marriage. I would love to be proven wrong about him, however.
posted by darkstar at 12:15 PM on January 9, 2010 [1 favorite]


Here are some hints about how Kennedy might vote:

In 1996, the SCOTUS struck down Colorado's Amendment 2, which denied gays and lesbians protections against discrimination, calling them “special rights.” According to Kennedy, “We find nothing special in the protections Amendment 2 withholds. These protections . . . constitute ordinary civil life in a free society.”

In 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that sodomy laws in the U.S. are unconstitutional. Kennedy wrote, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

Of course, Sotomayor, a Catholic, has not been tested on this issue. The following is cribbed from an Alliance for Justice review of her record on LGBT issues.

In Holmes v. Artuz, 1995 U.S. Dist. LEXIS 15926 (S.D.N.Y. 1995), Judge Sotomayor protected the rights of a gay prisoner who sued the prison pro se after he was removed from his job there because of his homosexuality.

Judge Sotomayor while on a Second Circuit panel was involved in the case of a gay man who sued the City of New York alleging that his supervisor claimed he was not a “real man” and tried to “toughen him up” by assigning him work involving heavy lifting. Miller v. City of New York. The district court held that Miller failed to prove that he suffered discrimination on the basis of sex, as opposed to sexual orientation. The Second Circuit disagreed, holding that Mr. Miller presented enough evidence that he was discriminated against because of his failure to conform to gender norms and thus could go forward with his sex discrimination case.

It could be our Loving v. Virginia or our Dred Scott.
posted by divrsional at 12:21 PM on January 9, 2010 [8 favorites]


That’s right, the Constitution drafted by our Founding Fathers contains a right to gay marriage

Of course it does. It can be argued, and I think with some validity, that Roe v. Wade was on pretty weak constitutional grounds, but bans on gay marriage quite clearly violate the ideals of both equal protection under the law and the separation of church and state.

Of course, our founders weren't always that great at living up to their ideals, but at least they had them, and they came further in their fulfillment than anyone else ever had. I hope very much that the Supreme Court will find limits on gay marriage to be unconstitutional, though I doubt, given its conservative bent, that it will do so.

I suspect their finding will be that if we can define marriage as being between just two people, we can also find it as being only between a man and a woman. Polygamy is presently way outside the bounds of "acceptable" behavior, and I think they'll see gay marriage as a special case of that greater arrangement.

Of course, I'm one of those weirdos who thinks that as long as everyone involved is adult and consents, people can organize their lives any way they damn well want to. But, quite clearly, a huge number of people in this country disagree, to the point that they'll savagely punish you for failure to comply with their strictures on who can live with whom.
posted by Malor at 12:26 PM on January 9, 2010


I find the whole "secure CCTV feed into various courthouses around the country" thing to be rather interesting, and rather wish there were a feed more local to me than the 4.5 hours' drive to Seattle. I'm unemployed at the moment, few job prospects to pursue, and could easily find it an interesting use of my time to sit and watch the proceedings.

Is this a new thing? Or have they done this kind of video feed before and this is the first I've heard about it? If it's new, it's kind of remarkable that they are choosing to do it with this particular case. I think in general that speaks to the kind of landmark civil rights case this actually is, and I hope the experiment proves to be successful. Transparency in our court processes is something which has been a long time coming, and is still 50 years behind the times in many ways.
posted by hippybear at 12:26 PM on January 9, 2010


Oh, and I'm not all that legally savvy in a lot of ways... why is this case "v. Schwarzenegger" and not "v. State Of California"?
posted by hippybear at 12:27 PM on January 9, 2010


Is that right? Would we really get federally recognized gay marriage as a result of that landmark case? Because if so, that paragraph was read really happy even though it was meant to read scary.

Well, it depends on what issue they bring before the court. At the moment I'm having trouble figuring out exactly what their strategy will be beyond "Proposition 8 violated the US Constitution."

If they win on the argument that some specific aspect of how Proposition 8 was created, funded, organized, etc violates the US Constitution then no, I don't see it leading to a federal recognition of same sex marriage. It would only overturn Prop 8 and re-instate gay marriage in California.

If they win on the argument that Proposition 8 violates the US Constitution because it outlaws same sex marriage then yes, it could lead to federal recognition. But if you're going to go this route -- and many have -- then why not attack the Defense of Marriage Act or other federal laws directly?

Or maybe they'll try some in-between strategy such as once same sex marriage has been recognized by a state, it can't be taken away. That would strengthen the rights already won in other states, but it wouldn't necessarily help in states where it's currently banned.

Really, to answer your question we need more information.
posted by sbutler at 12:32 PM on January 9, 2010 [2 favorites]


Oh, and I'm not all that legally savvy in a lot of ways... why is this case "v. Schwarzenegger" and not "v. State Of California"?

'The State of X' or 'the People of State X' or 'the United States' generally only appear as parties in criminal cases. In civil cases where the government is involved, the party is an individual in their official capacity (e.g., Schwarzenegger in his official capacity as governor).
posted by jedicus at 12:39 PM on January 9, 2010 [2 favorites]


Gay-marriage advocates are in federal court arguing for a federal constitutional right to gay marriage that would trump not only Prop 8, but the laws of 45 other states, including the 30 other states where the people have passed state constitutional marriage amendments.

Is that right? Would we really get federally recognized gay marriage as a result of that landmark case? Because if so, that paragraph was read really happy even though it was meant to read scary.


The key word is "would." "Would..." if what happened? Only if the US Supreme Court addressed the issue and decided in favor of that position. Any other federal court decision (District Court or Circuit Court) would apply only to part of the country.

Also, it's misleading to assert that a case "will be appealed to the Supreme Court" if the Court hasn't yet granted certiorari. I'm not familiar with any of the details of this case, but I take it the court hasn't done so. We can be pretty sure that any federal case dealing with this issue would lead to the losing side petitioning the Supreme Court for a writ of certiorari. A petition for a writ of certiorari (cert petition) isn't an "appeal"; it's a request for the court's permission to appeal. The Supreme Court has free reign to grant or deny a cert petition, no matter how good the arguments are on either side, and no matter how important or controversial the issue is. The Court denies over 99% of all cert petitions.
posted by Jaltcoh at 12:43 PM on January 9, 2010 [1 favorite]


I keep trying to type something about this, but honestly, I'm numb. There's a part of me that is missing - the dignity that this issue represents. That part has been missing since I realized I was gay when I was a teenager. When I came out ten years ago, it didn't immediately occur to me that this issue would slowly wear away my self-worth, force me to rearrange my hopes and dreams. I was invincible. I was naive.

This news and this fight terrifies me. How many times can you be told that you're not worth legal protection? How many different ways? It took years before I finally flipped the Catholic church the bird and realized that I wanted no part in an organization that believed vile things about me. Years. And now I've waiting through years of this fight, attended the rallies, organized the debates, provided quotes for journalists, stayed up on the legal issues, cheered at victories and cried at defeats.

It could be our Loving v. Virginia or our Dred Scott.

I just don't know if I will still be able to consider myself an American if this is our Dred Scott.
posted by greekphilosophy at 12:50 PM on January 9, 2010 [26 favorites]


I hear you, greekphilosophy.
posted by darkstar at 1:02 PM on January 9, 2010


Has it occurred to any any of the same sex couples in California that the folks behind Prop 8 are doing this out of the goodness of their hearts? Maybe they're not trying to protect marriage from you but protect you from marriage. Being the misanthrope that I am I say let 'em marry. Why shouldn't same sex couples have to suffer like the rest of us?
posted by MikeMc at 1:03 PM on January 9, 2010 [1 favorite]


Has it occurred to any any of the same sex couples in California that the folks behind Prop 8 are doing this out of the goodness of their hearts? Maybe they're not trying to protect marriage from you but protect you from marriage.

No, because that is horseshit.
posted by greekphilosophy at 1:07 PM on January 9, 2010 [19 favorites]


*hands MikeMc a few HAMBURGER tags for later use*
posted by hippybear at 1:10 PM on January 9, 2010 [1 favorite]


No, because that is horseshit.

Yeah, never mind.
posted by MikeMc at 1:13 PM on January 9, 2010


Just out of curiosity I wonder if there is anyone here who thinks same sex marriages should not be legal? The one thing I am curious about is: What is my marriage being defended against exactly? My wife and I have been married for 17 years and I don't understand how two men or two women getting married places our long-term, loving commitment in jeopardy. I doubt I'll get an answer here on MeFi but what the hell someone might.
posted by MikeMc at 1:23 PM on January 9, 2010


Sorry MikeMc. It's just... just... not funny? I get it. Let's let the gays be miserable just like the rest of us! Har har. And I know you didn't mean anything offensive by it.

Years ago, I might have been amused. Or it might have been a lighthearted way to deal with a serious subject. Or it might even have been a sarcastic way to undermine the ridiculous arguments that the Adamandevers make. But now? Now? After Prop 8? After NY's failure? After NJ's failure? After no progress on DADT? After that horrifying brief defending DOMA?

I'm sorry. I'm sorry for being snappish, but I'm not sorry for taking this issue seriously and wanting others to also. This IS an issue of dignity. And being jokey about that is just another way to continue to degrade people. It's not just a straight thing - there are plenty of gays out there who don't take it seriously. They don't have a dignity problem, and they don't have a lot of respect for those of us who do. The whole, "Let's go on strike! No more hairdressers! No more wedding planners! No more florists!" schtick is in the same category for me.
posted by greekphilosophy at 1:28 PM on January 9, 2010 [6 favorites]


I'm optimistic this time. Well, not really, but I'm optimistic the news of the crushing defeat will at least come in a future thread instead of in this one later today.
posted by furiousxgeorge at 1:32 PM on January 9, 2010 [1 favorite]


Is this a new thing? Or have they done this kind of video feed before and this is the first I've heard about it?

It's a new thing.
" The public will get a first of its kind look inside a federal courtroom next week when the Proposition 8 trial begins in San Francisco.

A delayed video transmission will be available on YouTube, the first time a federal trial has been televised.

'It’s a very positive first step considering the decades of non-camera access that preceded it,' said Thomas Burke, an attorney with the Media Coalition."
posted by ericb at 1:34 PM on January 9, 2010


MikeMc: I don't actually subscribe to this mindset... but I think I can take a shot at this.

Marriage is a sacred, God-ordained bond between a man and a woman which has deep historical roots within religious tradition. If secular society begins to redefine that bond to extend outside the God-created nature of that bond, then it is the first step down a slippery slope of continual redefinition of the sacred tradition. The inclusion of same sex couples in that tradition will lead to a gradual widening of the definition of the institution which will eventually expand to include polygamy / polyamory, incest, and bestial relationships all being granted sanction as legitimate "marriage" bonds.

This ultimately leads to marriage as a sacred institution have no meaning at all, because if just anyone or anything can get married, then the God-created bond no longer has any meaning within secular society.

Now... I don't actually believe this, but that is the mindset as best as I can grok it coming from those who are against the legalization of same-sex marriage.
posted by hippybear at 1:34 PM on January 9, 2010


To be clear, it's the "first federal trial in a Western state and one of only a handful nationwide to be taped and aired in public in any form. It also will be the first federal trial on whether denying gays the right to wed constitutes unlawful discrimination to be taped and offered to the public. The governing body for federal courts in the West recently approved a pilot program that would for the first time allow cameras in civil trials being decided by judges."
posted by ericb at 1:37 PM on January 9, 2010


At a crossroads on gay unions

By John Lewis, 10/25/2003

FROM TIME to time, America comes to a crossroads. With confusion and controversy, it's hard to spot that moment. We need cool heads, warm hearts, and America's core principles to cleanse away the distractions.

We are now at such a crossroads over same-sex couples' freedom to marry. It is time to say forthrightly that the government's exclusion of our gay and lesbian brothers and sisters from civil marriage officially degrades them and their families. It denies them the basic human right to marry the person they love. It denies them numerous legal protections for their families.

This discrimination is wrong. We cannot keep turning our backs on gay and lesbian Americans. I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation. I've heard the reasons for opposing civil marriage for same-sex couples. Cut through the distractions, and they stink of the same fear, hatred, and intolerance I have known in racism and in bigotry.

Some say let's choose another route and give gay folks some legal rights but call it something other than marriage. We have been down that road before in this country. Separate is not equal. The rights to liberty and happiness belong to each of us and on the same terms, without regard to either skin color or sexual orientation.

Some say they are uncomfortable with the thought of gays and lesbians marrying. But our rights as Americans do not depend on the approval of others. Our rights depend on us being Americans.

Sometimes it takes courts to remind us of these basic principles. In 1948, when I was 8 years old, 30 states had bans on interracial marriage, courts had upheld the bans many times, and 90 percent of the public disapproved of those marriages, saying they were against the definition of marriage, against God's law. But that year, the California Supreme Court became the first court in America to strike down such a ban. Thank goodness some court finally had the courage to say that equal means equal, and others rightly followed, including the US Supreme Court 19 years later.

Some stand on the ground of religion, either demonizing gay people or suggesting that civil marriage is beyond the Constitution. But religious rites and civil rights are two separate entities. What's at stake here is legal marriage, not the freedom of every religion to decide on its own religious views and ceremonies.

I remember the words of John Kennedy when his presidential candidacy was challenged because of his faith: "I believe in an America that is officially neither Catholic, Protestant, nor Jewish -- where no public official either requests or accepts instructions on public policy from the pope, the National Council of Churches, or any other ecclesiastical source -- where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials -- and where religious liberty is so indivisible that an act against one church is treated as an act against all."

Those words ring particularly true today. We hurt our fellow citizens and our community when we deny gay people civil marriage and its protections and responsibilities. Rather than divide and discriminate, let us come together and create one nation. We are all one people. We all live in the American house. We are all the American family. Let us recognize that the gay people living in our house share the same hopes, troubles, and dreams. It's time we treated them as equals, as family.

John Lewis, a Democratic congressman from Georgia, was one of the original speakers at the 1963 March on Washington and is author of "Walking With the Wind: A Memoir of the Movement."
posted by halekon at 1:42 PM on January 9, 2010 [13 favorites]


What is my marriage being defended against exactly? My wife and I have been married for 17 years and I don't understand how two men or two women getting married places our long-term, loving commitment in jeopardy.

Barney Frank on "Real Time With Bill Maher" (March 11, 2005):
"I try very hard to be a responsible citizen and as a gay man I try very hard to keep track of the marriages I have destroyed, and there really aren't that many. I may have some secret admirers out there and I may have wreaked more havoc than I realize, but they haven't called."
posted by ericb at 1:45 PM on January 9, 2010 [13 favorites]


Before there's a pileon on how awful religion is for fighting gay marriage, let me just remind you that not all Christian churches are opposed to gay rights and marriage. As a liberal Christian, I feel it's a no-brainer to support gay marriage. I think a good Christian should recognize love and reduce suffering, which marriage of people who love each other will do.

I apologize for other Christians who are too close-minded to realize that there's a world outside of their own squeamishness.
posted by mccarty.tim at 1:54 PM on January 9, 2010 [3 favorites]


...not all Christian churches are opposed to gay rights and marriage.

Exactly.

My church (the United Church of Christ aka the Congregational Church -- one of the country's oldest denominations adopted in pre-colonial times here in New England) backs same-sex marriage.

Remember when their gay-positive television commericals (1 | 2) were banned by some networks in 2004?
posted by ericb at 2:05 PM on January 9, 2010 [2 favorites]


The judge did not make everyone happy with his decision. He rejected the arguments of Proposition 8's defenders, who opposed any broadcast outside the San Francisco federal building.

This I find interesting, why oppose it? Will posting delayed video on YouTube destroy the sanctity of the Federal Judiciary? Unless Judge Walker "pulls an Ito" and lets control of the courtroom get away from him it should be interesting look at the workings of the court.
posted by MikeMc at 2:07 PM on January 9, 2010 [1 favorite]


Okay. So. A few things:

(a) I don't think striking down proposition 8 requires the Supreme Court to hold that the Constitution guarantees same-sex couples the right to marry (or a same-sex oriented person the right to marry the person of their choosing, or any permutation of the ways in which such a right might be expressed). There's really a much closer issue: whether a state can make the political process more difficult for those advancing the interests of a minority. *IF* this goes to the U.S. Sup. Ct., and *IF* they rule in favor of the plaintiffs below, I expect to see a lot more citation to Romer than to Loving or Skinner.

(b) I don't think a ruling based on Romer is guaranteed to go the way of the plaintiffs below. Romer was decided on rational basis grounds. Lawrence was also (ostensibly) decided on rational basis grounds. Like it or not, that's the equal protection analysis gays get, and it's not a very stringent test to meet. Any legitimate interest at all, even a purely hypothetical one, is sufficient. The court is probably hesitant to hold that a deeply-held believe by a majority of the population about the rightful traditional meaning of an institution is not a legitimate interest. And while there hasn't been such a deep longstanding tradition permitting landlords to kick out gay tenants on the street (Romer), there is a deep longstanding tradition regarding potentially procreative marriage. That is, I think there's a good chance the Court would hold that a gay marriage challenge satisfies rational basis scrutiny.

(c) In the end, I'm not sure the Court will have to hold that strict scrutiny applies to gay equal-protection cases in order to apply strict scrutiny to the question of gay marriage. If the court wanted to, it could revive the holding in Skinner (holding that marriage is a fundamental right) to apply strict scrutiny under the Due Process Clause. While the current court has been a little gunshy about DPC strict scrutiny rights, it could if it wanted to write an opinion in such a way without breaking with the tradition of stare decisis.
posted by jock@law at 2:20 PM on January 9, 2010 [4 favorites]


The New Yorker has some reporting on this case.

MikeMc: The end of the article contains one way of answering your question:
At the pretrial hearing, Judge Walker kept asking Charles Cooper, the lawyer defending Proposition 8, how exactly it did so. “I’m asking you to tell me,” he said at last, “how it would harm opposite-sex marriages.”

“All right,” Cooper said.

“All right,” Walker said. “Let’s play on the same playing field for once.”

There was a pause—it seemed like a long one to people in the courtroom, though it was probably only a few seconds. And Cooper said, “Your Honor, my answer is: I don’t know. I don’t know.”
posted by divrsional at 2:23 PM on January 9, 2010 [12 favorites]


The New Yorker has some reporting on this case.

The first link in the FPP is to that article from which the quotation comes. ; )
posted by ericb at 2:34 PM on January 9, 2010


I want to revise something I said:

We can be pretty sure that any federal case dealing with this issue would lead to the losing side petitioning the Supreme Court for a writ of certiorari.

On second thought, I shouldn't have assumed this would happen. If a court decides against gay rights, it's quite likely that the losing side will decide not to petition the Supreme Court for a writ of cert -- not because they wouldn't expect cert to be granted, but because they'd be afraid of the Supreme Court holding that the Constitution doesn't require same-sex marriage, which would be a devastating setback. As mentioned above, it's hard to imagine any of the 4 solidly conservative justices ruling in favor of same-sex marriage. It'd be a very risky gamble to hope that all 5 of the other justices are ready to make a Roe v. Wade-like decision to impose same-sex marriage on the whole country.

Tangentially, if you don't like my negative connotation using a word like "impose," I'd suggest that we need to think about the horrendous backlash created by Roe v. Wade (galvanizing pro-lifers to chip away at abortion rights and helping Republicans energize their base) and ask if we want to repeat that with same-sex marriage. It is far from obvious that an ardent supporter of same-sex marriage and gay rights (like me) should want the Supreme Court to hold that the Constitution requires legal recognition same-sex marriage, even though this would be the correct legal outcome.
posted by Jaltcoh at 2:37 PM on January 9, 2010


“Your Honor, my answer is: I don’t know. I don’t know.”

BTW -- that quote was the focus/lede of Blazecock Pileon's FPP (October 15, 2009): There are known unknowns.
posted by ericb at 2:40 PM on January 9, 2010


My bad, ericb. It occurred to me as I was typing, and then I got distracted. Thanks for this terrific post.
posted by divrsional at 2:41 PM on January 9, 2010


Jaltcoh: Most of the reporting on Olson makes it pretty clear he has every intention of arguing before the SCOTUS one way or the other.
And I'm not going to take responsibility for an assumed backlash against the establishment of marriage equality. But hey, thanks for coming up with still more arguments to keep me a second-class citizen.
posted by divrsional at 2:55 PM on January 9, 2010


What is my marriage being defended against exactly?

A common argument I've heard is that married couples receive tax benefits, and in effect, that financially affects the rest of us. I've also heard the claim that it'll allow partners to get on insurance benefits, driving up the costs of everyone else's isurance and possibly destroying te system we have (even if it is currently broke, but whatever).
I don't agree with those arguments, but I find some people I know from the far right are moving away from the "it's immoral, so no!" to, "It financially affects me, and I shouldn't be financially affected by something I'm morally opposed to." Same reasoning why so many people're opposed to the idea of national health care- now my taxes are going towards abortion, which they morally oppose. So in effect, it's being defended against my bank account!
posted by jmd82 at 3:17 PM on January 9, 2010


I'd suggest that we need to think about the horrendous backlash created by Roe v. Wade

Man, I'm so tired of this argument. I know having courts decide an issue (rather than the legislature or *shudder* the voters) isn't always the "best" way, but just because the other side is going to whine about activist judges doesn't mean that in some cases, the courts are the right venue, as it is their role to interpret the laws. Brown v Board created a horrendous backlash too, but state legislatures had been sitting around with their thumbs up their asses - or had been actively passing unconstitutional laws that stripped rights from American citizens - and the court was the right place to take that fight.
posted by rtha at 3:20 PM on January 9, 2010 [6 favorites]


I'd suggest that we need to think about the horrendous backlash created by Roe v. Wade (galvanizing pro-lifers to chip away at abortion rights and helping Republicans energize their base) and ask if we want to repeat that with same-sex marriage.

You're speaking rhetorically but I certainly would. I really think there's no putting the toothpaste back in the tube once a decision like that gets made. Conservatives could try to make things harder for LGBT couples in their home states, but I would argue that that's better than the status quo where they can't get married at all.
posted by anifinder at 3:20 PM on January 9, 2010


Tangentially, if you don't like my negative connotation using a word like "impose," I'd suggest that we need to think about the horrendous backlash created by Roe v. Wade (galvanizing pro-lifers to chip away at abortion rights and helping Republicans energize their base) and ask if we want to repeat that with same-sex marriage.

As I understand it, the only reason the backlash happened was because the Supreme Court gave the states some ability to regulate abortion and anti-abortion people have been using that to chip away at abortion rights. In Griswold v Connecticut, Loving v Virginia and Lawrence v Texas, the SC did not give the states any ability to regulate birth control, interracial marriage or sodomy. They said "This is now legal. Suck it, losers." Thus no ability to chip away at interracial marriage, contraceptive use, and/or sodomy. Wouldn't a decision on gay marriage be more along the lines of the latter three than Roe v Wade? I don't understand how the Supreme Court could say gay marriage is legal and yet still allow states to try to regulate it away. Wouldn't laws that tried that be overruled by the state courts or federal courts on "Seriously? WTF? You know the Supreme Court made this legal. Morons." grounds?
posted by nooneyouknow at 3:24 PM on January 9, 2010 [1 favorite]


On Friday, Tam told U.S. District Court Judge Vaughn Walker that he fears for his and his family's safety. In his court filing, Tam's lawyers say the trial will bring him unwanted publicity and expose him to retribution from gay marriage supporters.

I really wish these cowardly bigots would publish the full and specific names of individuals who have threatened the safety of him and his family.

It is really ridiculous to keep making this claim. There have never been incidents of violence against bigots who are involved in trials against equal rights. And if there were, gays and lesbians would be called terrorists by the press and it would set back equal rights another 100 years.

So publish the names and threats or shut the fuck up with the lies and just go to court.
posted by Blazecock Pileon at 3:26 PM on January 9, 2010 [8 favorites]



I heard about that on the radio. The conservatives are against that, because they don't want to be mocked for being anti-gay rights/marriage.


See, I can totally understand that, because when I'm wearing the top half of my chicken costume, rolling around otherwise naked on my unicycle, baptizing onlookers with splashes cream soda and sticking pencils in my nose, the last thing I'm expecting is to be mocked.
posted by A Terrible Llama at 3:57 PM on January 9, 2010 [5 favorites]


I'm a tad disappointed that this wouldn't have the SCOTUS key-case nominative determinism previously demonstrated in Brown v Board of Education, Loving v Virginia, and even, at a stretch, Roe v Wade.
posted by imperium at 4:12 PM on January 9, 2010 [1 favorite]


That’s right, the Constitution drafted by our Founding Fathers contains a right to gay marriage
Of course it does. It can be argued, and I think with some validity, that Roe v. Wade was on pretty weak constitutional grounds, but bans on gay marriage quite clearly violate the ideals of both equal protection under the law and the separation of church and state.
The equal protection clause is part of the Fourteenth Amendment, passed in 1868. It's in the constitution, but not as 'drafted by our founding fathers'.
posted by delmoi at 4:13 PM on January 9, 2010 [1 favorite]


I'd suggest that we need to think about the horrendous backlash created by Roe v. Wade

You know what, that's a child (a hateful, misogynistic jerk of a child) not getting his way and throwing a three-decade tantrum about it, screaming profanities at mom, dad, and the other kids, and occasionally hauling off and punching the other kids. You can call it backlash, but I think it's really just a political movement that refuses to accept the validity of the other side- or that the other side has a right to exist, in many members of that movement- behaving the way it's going to. Does the Christian Right scream histrionically about it? Yes, yes they do. Do they occasionally murder people about it? Yes, yes they do.

But that's what the Christian Right does, and if we're going to organize our society around not pissing off the Christian Right, well, that's pretty much surrender. Let the "backlash" come. I guarantee you it will be as foolish, transparent, and self-discrediting as the pro-life movement is.
posted by Pope Guilty at 4:44 PM on January 9, 2010 [10 favorites]


Although come to think of it it's very easy for me to say that, being a straight cis man. I wouldn't have to bear the brunt of that backlash.
posted by Pope Guilty at 4:56 PM on January 9, 2010


You know what, that's a child (a hateful, misogynistic jerk of a child) not getting his way and throwing a three-decade tantrum about it

Yeah, I suppose it's all tantrum huh. You honestly contend that there's absolutely no legitimacy to the ideas (i) that Roe was wrongly decided (it was) or (ii) that killing fetuses is an immoral thing to do?
posted by jock@law at 5:03 PM on January 9, 2010


I just don't know if I will still be able to consider myself an American if this is our Dred Scott.

Then come to Canada. We need more intelligent people, we need more socially-progressive people, and as a bonus, we'll give you health care.
posted by five fresh fish at 5:08 PM on January 9, 2010 [4 favorites]


I sincerely hope that the voters of California get a chance to vote on, and actually pass, gay marriage before the courts get there. That will make it oh so much more legitimate, and then the day after I hope the court rules that nothing less is constitutional so repealing gay marriage becomes next to impossible. I have friends waiting on this. It's personal as well as political.
posted by caddis at 5:14 PM on January 9, 2010


I do, and have done, including repeatedly on this site, including, I believe, at least once in a discussion with you, personally, so step off, we've done this already. I mean, look who you're talking to- you know me, I know you. Stop pretending to be shocked or surprised at the ideas which I've expressed in your presence repeatedly before.

What's interesting to me is
(ii) that killing fetuses is an immoral thing to do?
Here we were discussing the law and now you want to derail that and have some argument about the morality of abortion. I'm not taking your derailment bait and I earnestly hope that nobody else does, either.
posted by Pope Guilty at 5:15 PM on January 9, 2010 [5 favorites]


I sincerely hope that the voters of California get a chance to vote on, and actually pass, gay marriage before the courts get there

I don't know how to tell you this...
posted by Pope Guilty at 5:15 PM on January 9, 2010


you want to derail that and have some argument about the morality of abortion

Um. No, I don't. I never said anything about whether you agree with them. I'm uninterested, for the purposes of this conversation, whether it is in fact immoral. The key part of my sentence, that you are deliberately ignoring, is "honestly contend[ing] that there is no legitimacy to the idea." I'm not asking you to agree with pro-lifers, I'm not asking you to debate about the position. I'm asking you to tone down your vitriol and us vs. them for half a second and take note that people hold genuine, defensible positions that you can't just wave away as a "tantrum." The next time you are trying to ascertain whether I "want to ... have some argument" about something, I'd ask you to show me the common courtesy of reading the whole sentence, thankyouverymuch.
posted by jock@law at 5:23 PM on January 9, 2010


The key part of my sentence, that you are deliberately ignoring, is "honestly contend[ing] that there is no legitimacy to the idea."

You'll note that I began with the words "I do, and have done..." in response to that.

You are transparent in your spoiling for a fight, but I do not feel like giving you one. Sorry.

So! Back on topic.

What is the worst possible consequence of this going to the SCOTUS? Is it as simple as a decision written by Scalia in which he explains how the Founding Fathers intended for homosexuals to be beaten with sticks, or are there other, more far reaching negative consequences?
posted by Pope Guilty at 5:35 PM on January 9, 2010 [1 favorite]


I'm trying not to get my hopes up, but imagine if the supreme court does overturn prop 8 like they said, legalizing gay marriage EVERYWHERE. Boy, would there be egg on the Fundies who came up with 8, especially the millionaire one who's getting a divorce.

Granted, I expect it to boil down to the supreme court dodging the question of if marriage is a constitutional right for consenting adults and instead focusing on the minutia of loopholes, then resulting in prop 8 being upheld for some BS.
posted by mccarty.tim at 6:03 PM on January 9, 2010


havent read all the comments but just jumping in to say am thoroughly stoked and excited. yaygay!
posted by liza at 6:14 PM on January 9, 2010


So what jock@law is saying about potential backlash/dissent - if I may be so brash as to paraphrase - is that HOW this is decided is just as important as what the outcome is. And that the resulting backlash, whatever form that might take, is depending chiefly on those two things in coequal parts. And that's essentially where you've brought us back to Pope Guilty.

That's not actually a derail, and Roe is ABSOLUTELY valuable to this discussion because of it. I guarantee that the level of jurisprudence necessary to make a PROPER legal determination of abortion rights in the US is entirely germane to this question and absolutely on the minds of the justices for a whole lot of issues that are completely unrelated to fetuses and women and privacy and Jesus. The fact is: the court really can't afford more problematic decisions like Roe. And Prop 8 could very easily become one of those decisions. There are just too many issues at play. Equal protection, establishment clause stuff, separation of powers, and not to be dramatic, but the Whole Underpinning of Democratic Society.

As for whether we can expect Scalia with pointy sticks or Sweet Ol' Grandpa Stevens wearing a Mr. Rogers sweater, I think jock@law's analysis above is pretty much on. Rating: cautiously optimistic. Translated into English it basically says this: (1) There's plenty of law out there already that says we don't set the bar very high when you want to discriminate against the gays (Romer); but that law has been changing (Lawrence - that "ostensibly" that jock@law used was important, because there was this weird moment in Lawrence where they said, "We're using the rational basis test" and then it's like all seven of the signing justices winked in unison leaving everyone going "what the fuck?"); and there are a couple of tricks that they might be able to use (if they're so inclined) without doing anything too, too generous for the gays, but still affording protection in marriage rights (Skinner + Due Process). Close jock@law?
posted by greekphilosophy at 6:31 PM on January 9, 2010 [1 favorite]


I sincerely hope that the voters of California get a chance to vote on, and actually pass, gay marriage before the courts get there. That will make it oh so much more legitimate,

How so? Is the marriage of an interracial couple less valid because they can marry in all 50 states thanks to a court decision rather than the results at a ballot box?
posted by rtha at 6:34 PM on January 9, 2010 [7 favorites]


I don't know how to tell you this...

The second time is the charm, or perhaps the third, or the.....
anyway, once the voters have voted it in, it will never leave. I bet more than half of the citizens are in favor, it is just a matter of motivating the right people to vote.
posted by caddis at 6:34 PM on January 9, 2010


MikeMc: “Just out of curiosity I wonder if there is anyone here who thinks same sex marriages should not be legal? The one thing I am curious about is: What is my marriage being defended against exactly? My wife and I have been married for 17 years and I don't understand how two men or two women getting married places our long-term, loving commitment in jeopardy.”

We have within us certain instincts about these things which we've had as long as we can remember; we all know that murder is wrong, that lying is wrong, that malice and greed are wrong. We know these things in an immediate, gut-felt way; they make us a little sick, even disgusted when we see egregious instances. Finding themselves with these gut feelings about right and wrong, then, and discovering also that right and wrong are difficult to puzzle out rationally, some people unfortunately often choose simply to rely on their gut feelings, on the sense of disgust they get from contemplating a certain act. This is unfortunate because 'gut feelings' are pretty vague, and get all jumbled up with other kinds of 'gut feelings' that human beings just naturally tend to have.

The notion of a penis entering a rectum is mildly distasteful to some people – this is simply natural, an inborne cue as simple as nature's desire for general hygiene, exactly identical to the mild germiness of the idea of a penis entering one's mouth. But some people take this very mild natural distaste to be identical to moral disgust, and thereby identify the acts to which they have this reaction as "immoral acts." In attempting to give voice to what's really a very mild natural distaste that's been heightened by deep contemplation of it, these people often have recourse to all sorts of silly arguments about why homosexuality is "wrong," but at their base is always the simple fact: they're just confusing gut sensations for rational moral consideration.

That's why, in private conversation, when their guard is somewhat down, these people will often confidentially say things like: "I mean, it's just wrong, you know? It just is. I can feel it." But gut-felt distaste or discomfort is not an appropriate basis for a moral life; and if you rely on your gut for moral distinctions, even if you prop it up with cherry-picked quotations from a holy book you happen to have heard somewhere, you will invariably be led to injustice.
posted by koeselitz at 7:37 PM on January 9, 2010 [6 favorites]


I don't really see abortion as a useful comparison, because gay men and lesbians are not, to my knowledge, doing anything that could be construed in any way as ending a life by marrying, apart from the bachelor life. So, the question then becomes whether men should have the right to marry other men, and women other women, as an equal right with men and women being able to marry each other, or whether the equal right is that any gay man has the same right as any straight man to marry a woman. If you think that a state of marriage can exist between two people of the same sex, it follows that it should be a right supported by law, yes? Because the US has no established church, and marriages are only legal if performed and recognised by a qualified government employee?

The problem, then, is that opponents of gay marriage don't tend to believe that that state can exist between two people of the same sex - they believe, generally, that homosexuality is in absolute moral terms wrong, but they also do not believe that it is possible for a man and a man to be married, any more than it is possible for a man and a rock to be married.

I don't think you can argue with that - you just have to accept that a large number of people will be very angry if men are allowed to marry men and women women, and get on with it. Otherwise, as Pope Guilty says, policy is being made through fear of the actions of people who cannot ultimately be negotiated with.

The further problem then being, I suppose, that that fear is real, and real enough that this will probably end in another legal refusal to support that right.

(Here in Britain we have a fudge; men and women cannot marry, but they can have "cvil partnerships", which carry the same set of rights and responsibilities. Our medical system has not collapsed as a result of this, but then we have nationalised healthcare so it is in Fox News terms always collapsing anyway. Civil partnerships cannot be attained by heterosexual couples, and same-sex couples can't be married. It's a bit of a chiz, and a particular chiz because we have an established church that is able to marry people (but which doesn't give out civil partnerships), but at least it helps with inheritance, power of attorney and things of that nature.)
posted by DNye at 8:19 PM on January 9, 2010


I'd suggest that we need to think about the horrendous backlash created by Roe v. Wade (galvanizing pro-lifers to chip away at abortion rights and helping Republicans energize their base) and ask if we want to repeat that with same-sex marriage.

Anyone claiming to be a liberal who wants to condemn gays to second-class citizen status because it might be politically inconvenient can (a) stop claiming to be a liberal, and (b) go fuck themselves with a chainsaw.

Might as well have asked Jews to go back to the ghettos in '31.
posted by rodgerd at 9:27 PM on January 9, 2010 [1 favorite]


Jaltcoh: “Tangentially, if you don't like my negative connotation using a word like "impose," I'd suggest that we need to think about the horrendous backlash created by Roe v. Wade (galvanizing pro-lifers to chip away at abortion rights and helping Republicans energize their base) and ask if we want to repeat that with same-sex marriage. It is far from obvious that an ardent supporter of same-sex marriage and gay rights (like me) should want the Supreme Court to hold that the Constitution requires legal recognition same-sex marriage, even though this would be the correct legal outcome.”

If we thought about the parallels between Roe v Wade and the potential decision by the Supreme Court that the constitution condones gay marriage, I don't think we'd have cause to feel anything but hope. It's a sad fact that it's easy to hide those women who most need access to abortion, to marginalize them and prevent any situation where you might have to meet them and engage with them as people. Though there's plenty of repression of homosexuality as well, homosexuals are in point of fact a cross-section of society, and exist everywhere, whether people want to admit it or not.

Moreover, Roe v Wade had to do with something that affected a person's life, in general, maybe once or twice; it's easy for a strict conservative to rationalize away 'that mistake that Suzie made when she was young' or 'that awful thing that happened to Sally when she was in college.' It's not an ongoing fact, and frankly I'm sure women aren't exactly eager to talk about it with those people, so it's not an immediately present thing. Whereas gay marriage would be something very present and very immediate in the lives of the people it directly affects; whereas an abortion isn't exactly something you have parties for, a marriage is. I think that, if gay marriages were to become legal, soon it would make it very difficult for anyone to continue acting as though they really believed that those nice guys Joe and Steve next door or those nice ladies Melissa and Sue across the street are really infernal perverts - that is, it would be very difficult for anyone to keep believing that without feeling and looking like a big fat grinch.

But then, I'm probably just being way too optimistic.
posted by koeselitz at 11:03 PM on January 9, 2010


Is the marriage of an interracial couple less valid because they can marry in all 50 states thanks to a court decision rather than the results at a ballot box?

AFAICT, most big social progress happens over the protests of most vocal voters. It takes far-sighted people with the best interests of the greater future social good to make any real changes to the status quo. Especially on social fronts.
posted by five fresh fish at 11:34 PM on January 9, 2010


(A decade or two later, when everyone calms down and the country doesn't self-destruct and, hey, actually, this is all turning out pretty good… that's when it can finally come to a vote. Let the results speak for themselves.)
posted by five fresh fish at 11:35 PM on January 9, 2010


I hope they disable comments on the youtube channel.

u r so gay
posted by flabdablet at 2:45 AM on January 10, 2010 [1 favorite]


Prop 8 Backers Go to U.S. Supreme Court to Block Trial Broadcast
"Yusef Robb, spokesman for American Foundation for Equal Rights, sent out an email saying that Olson and Boies have a brief period in which to respond:
'In a last gasp attempt to keep cameras out of court, the Defendant-Intervenors in Perry v. Schwarzenegger have made an emergency application to the Supreme Court asking Justice Kennedy to block camera coverage.We have been asked to file a response by 12:00 Eastern on Sunday, January 10.

'Those who want to ban gay marriage spent millions of dollars to reach the public with misleading ads, rallies and news conferences during the campaign to pass Prop. 8. We are curious why they now fear the publicity they once craved,' said Chad Griffin, Board President of the American Foundation for Equal Rights. 'Apparently transparency is their enemy, but the people deserve to know exactly what it is they have to hide.'"
posted by ericb at 5:05 AM on January 10, 2010 [3 favorites]


Moreover, Roe v Wade had to do with something that affected a person's life, in general, maybe once or twice; it's easy for a strict conservative to rationalize away 'that mistake that Suzie made when she was young' or 'that awful thing that happened to Sally when she was in college.'

I think this is illustrative of a broader statement- that people are prepared to explain or (more commonly) ignore situations which should incur their moral wrath if it is personally expedient to do so. If Susan is your daughter, or your boss' daughter, then it's expedient to rationalise away or simply ignore the moral revulsion you should feel for her. If she's somebody you are meeting for the first time on opposite sides of a cordon as she emerges from a family planning clinic, it is more socially expedient (in terms of how you are regarded by the people around you) to scream abuse or pelt her with offal or whatever you worked up over the weekend.

Which is why I think your distaste model doesn't entirely work, koeselitz, with respect. Some of the people seeking to prevent gay men and lesbians from being able to marry might be thinking a lot about where penises might go, and are certainly talking a lot about it, but, especially if they have themselves taken receipt of penises in areas not prescribed by holy writ, what it's expedient to complain about is not penises but homosexuality, and the implications of being the kind of state that promotes it as a lifestyle deserving of the same constitutional protections as heterosexual marriage.

So, would these people still be able to describe Joe and Steve as infernal perverts? Yes, definitely, unless it was made inexpedient for them to do so. Whether or not Joe and Steve's union exists in law is not, I think, the only question in play there.
posted by DNye at 7:26 AM on January 10, 2010


Tam also says the case has been more time-consuming and more intrusive into his personal life than expected.

Wait, one of the principal sponsors of Prop 8 is complaining about defending his position, because of intrusions into his personal life?

My irony meter's explosion just wiped out half of my city...
posted by WinnipegDragon at 8:08 AM on January 10, 2010 [5 favorites]


It's not Big Gay Tuesday, but I'd just like to take the opportunity to sincerely thank those folks like greekphilosophy who work day after day on helping achieve equal rights for gays here in the States.

I worked for a decade in faith-based community development and got burned out and disillusioned by the tedious hypocrisy, frustrating setbacks and petty internecine squabbling. I know how draining it can be - even when the successes are invigorating - and am very grateful for those of you who make it your lives' work to promote our cause.

Many, many thanks for your commitment and hard work.
posted by darkstar at 10:23 AM on January 10, 2010 [2 favorites]


I'd suggest that we need to think about the horrendous backlash created by Roe v. Wade (galvanizing pro-lifers to chip away at abortion rights and helping Republicans energize their base) and ask if we want to repeat that with same-sex marriage.

Anyone claiming to be a liberal who wants to condemn gays to second-class citizen status because it might be politically inconvenient can (a) stop claiming to be a liberal, and (b) go fuck themselves with a chainsaw.


If you want to not call me a "liberal," then fine. It doesn't really matter to me what label you put on me.
posted by Jaltcoh at 10:28 AM on January 10, 2010


Whereas gay marriage would be something very present and very immediate in the lives of the people it directly affects; whereas an abortion isn't exactly something you have parties for, a marriage is. I think that, if gay marriages were to become legal, soon it would make it very difficult for anyone to continue acting as though they really believed that those nice guys Joe and Steve next door or those nice ladies Melissa and Sue across the street are really infernal perverts - that is, it would be very difficult for anyone to keep believing that without feeling and looking like a big fat grinch.

Well, as far as I'm concerned it should all be allowed -- same-sex marriage and abortion. I agree with everything you've said about how marriage is more public and positive and should become increasingly difficult to castigate. I wish no one would castigate same-sex marriage (or abortion, for that matter, though I don't think anyone here is remotely suggesting that the two are similar). I only wish the Supreme Court would hear the constitutional issue and hold that SSM is constitutionally required and that everyone in the world would be fine with this. But apparently, based on the other comments, I'm not "liberal" enough and shouldn't bring up any possible downsides of the Supreme Court doing this in the real-world United States as we know it.
posted by Jaltcoh at 10:32 AM on January 10, 2010


It's ironic that Prop 8 supporters fear transparency because of an imagined threat from a class of people who have themselves been suffering from much more serious threats throughout history. You really think some queen is going to beat you up because you testified in court? And if this is the society you claim it is (i.e., one that does not support marriage equality), then that society ought to have your back. The entire premise of their objection is nonsensical.
posted by divrsional at 10:33 AM on January 10, 2010 [3 favorites]


I hope that if they succeed in banning cameras, that there's a mass movement to get every word and a ton of illustrations/photographs out of the courtroom in near-real-time.
posted by five fresh fish at 10:45 AM on January 10, 2010


Perry v. Schwarzenegger: Basics You Should Know.
posted by ericb at 1:35 PM on January 10, 2010 [1 favorite]


"So, three questions. First, is this trial, in fact, a strategic error? Second, what are the main issues involved? And third, what will the legal defenders of Proposition 8 have to offer in the way of arguments?"
posted by ericb at 6:20 PM on January 10, 2010 [1 favorite]


CHALLENGING PROP 8: THE HIDDEN STORY
posted by Combustible Edison Lighthouse at 6:52 PM on January 10, 2010


The entire premise of their objection is nonsensical.

Above all else, opponents of same-sex marriage are cowards, used to getting away with years of bullying gays and lesbians. Logic doesn't really enter into it.
posted by Blazecock Pileon at 11:37 PM on January 10, 2010 [2 favorites]


Ted Olson in Newsweek: The Conservative Case for Gay Marriage -- "Why same-sex marriage is an American value."
posted by ericb at 5:27 AM on January 11, 2010 [2 favorites]


Ed Meese: Stacking the Deck Against Proposition 8.
posted by ericb at 7:41 AM on January 11, 2010


U.S. Supreme Court blocks broadcast of trial on California's ban of gay marriage
"The Supreme Court on Monday blocked a broadcast of the trial on California’s same-sex marriage ban, at least for the first few days.

The federal trial is scheduled to begin later Monday in San Francisco. It will consider whether the Proposition 8 gay marriage ban approved by California voters in November 2008 is legal.

The high court on Monday said it will not allow video of the trial to be posted on YouTube.com, even with a delay, until the justices have more time to consider the issue. It said that Monday’s order will be in place at least until Wednesday."
posted by ericb at 8:27 AM on January 11, 2010 [1 favorite]


I just heard on NPR that SCOTUS is blocking the youtubing of the trial until they (SCOTUS) has time to consider whether it's okay or not.

Mefite lawyers: Other trials have been televised; why might the televising of this one be different?
posted by rtha at 8:28 AM on January 11, 2010


Newsweek video regarding Ted Olson and Perry v. Schwarzenegger.
posted by ericb at 8:32 AM on January 11, 2010


Other trials have been televised...

There have only be a handful of bench trial in federal courts.
posted by ericb at 8:32 AM on January 11, 2010


*been*
posted by ericb at 8:33 AM on January 11, 2010


There have only be a handful of bench trial in federal courts.

Not meant snarkily at all: So? I mean, is there a difference in considering whether or not to televise if the trial is bench or jury, District, Circuit, or county? Does the venue matter, and if so, why?
posted by rtha at 8:52 AM on January 11, 2010


@TheAdvocateMag is twittering from inside the courtroom, and the American Foundation for Equal Rights also has a live update page.
posted by lullaby at 8:56 AM on January 11, 2010 [2 favorites]


Not meant snarkily at all: So? I mean, is there a difference in considering whether or not to televise if the trial is bench or jury...

No...I don't take it as being snarky. The federal courts just recently decided to experiment with video in their courtrooms. One of the ground rules for the experiment is that videos be confined to bench trials (at this point).
"The federal judiciary, notoriously hidebound when it comes to allowing any video of its proceedings, is jumping headfirst into the YouTube age.

...[Chief U.S. District Judge Vaughn] Walker is permitting court-operated cameras in his courtroom for delayed release of the Proposition 8 trial on YouTube. He becomes the first federal trial judge in the West to make use of an experimental program put in place recently by the 9th Circuit Judicial Council, the policy arm of the federal courts in nine states, including California. The council in December decided to allow federal trial courts to broadcast nonjury civil trials, just in time for the Proposition 8 proceeding, which is scheduled to begin Monday and last two to three weeks."*
posted by ericb at 9:20 AM on January 11, 2010


There have only been a handful of bench trials in federal courts.

What? Bench trials are very common. Just searching the 9th Circuit from 1950 to the present I found 651 cases containing the phrase "after a bench trial," which is a good marker for an appellate case discussing a bench trial at the district level. Did you mean televised bench trials or bench trials since the televised trial pilot program was started or what?
posted by jedicus at 11:27 AM on January 11, 2010


Supreme Court blocks taping, for now.
posted by Jaltcoh at 12:00 PM on January 11, 2010


Supreme Court blocks taping, for now.

Based on a tweet from inside the courtroom, it appears that the taping is not being blocked, but rather the posting on YouTube.

"#prop8 [Plaintiff attorney] Boutrous asks court to record opening statements today pending SCOTUS decision. [Defense attorney] Cooper disagrees. [Judge] Walker sides with Boutrous"
posted by hippybear at 12:49 PM on January 11, 2010 [1 favorite]


Sorry, you're right. The Supreme Court blocked the airing on YouTube at least till Wednesday. We don't know if it will eventually be aired.
posted by Jaltcoh at 1:05 PM on January 11, 2010


Did you mean televised bench trials ...

Yes.

Of course there have been many bench trials in federal courts since the country's founding.

The federal courts (as well as the Supreme Court) have been reticent to allow cameras for quite a long time. This is an experiment for the federal courts and, as above, is limited to civil bench trials.
posted by ericb at 1:18 PM on January 11, 2010 [1 favorite]


Full Text of Ted Olson's opening statement
posted by hippybear at 1:55 PM on January 11, 2010 [1 favorite]


Accidental Activists
"Perhaps what is most surprising about the life of Kristin Perry and Sandy Stier is how normal it was, up until recently. The lesbian couple has been raising four children in a quiet Berkeley, Calif., neighborhood, one known these days more for its cozy bungalows and good coffee than for '60s-era radicalism. Later this month, they will mark their 10-year anniversary, a decade spent mostly focused on the ups and downs of domestic life, like helping with homework or surviving morning-rush-hour commutes.

But the name Perry may someday be as widely known as Miranda or Dred Scott, whose landmark cases were decided by the Supreme Court. [more...]
posted by ericb at 2:08 PM on January 11, 2010


The San Jose Mercury News is providing detailed coverage of the courtroom proceedings. Here's their reporting on the first day of the trial.
posted by ericb at 7:48 AM on January 12, 2010


For example, one of the arguments that the anti-gay-marriage side has increasingly turned to outside the courtroom is that allowing same-sex marriage would hurt heterosexual marriage. At the pretrial hearing, Judge Walker kept asking Charles Cooper, the lawyer defending Proposition 8, how exactly it did so. “I’m asking you to tell me,” he said at last, “how it would harm opposite-sex marriages.”
“All right,” Cooper said.
“All right,” Walker said. “Let’s play on the same playing field for once.”
There was a pause—it seemed like a long one to people in the courtroom, though it was probably only a few seconds. And Cooper said, “Your Honor, my answer is: I don’t know. I don’t know.”

posted by EarBucket at 8:32 AM on January 12, 2010


KQED Radio's program Forum (scroll down a little) will be doing some analysis and discussion at 9 am Pacific. The host drives me completely crazy and the discussion will also probably drive me crazy so I hope I don't throw my radio out the window. YMMV.
posted by rtha at 8:33 AM on January 12, 2010


Michael Petrelis is blogging the trial on his website. Yesterday's summary here.
posted by EarBucket at 11:37 AM on January 12, 2010


Yay for historians!
posted by marxchivist at 6:43 PM on January 12, 2010


Boies and Olson on Rachel Maddow Show.
posted by ericb at 7:55 AM on January 13, 2010


"In a 5-4 ruling, with the conservatives in the majority, SCOTUS has continued the stay of Judge Walker’s ruling." *
posted by ericb at 2:11 PM on January 13, 2010


The SCOTUS opinion [PDF].
posted by ericb at 2:14 PM on January 13, 2010


And somehow, the part that is most fascinating to me is that someone in that prop8tracker thread used "IANAL" to preface their statement... *woah*
posted by greekphilosophy at 2:35 PM on January 13, 2010


So far, the best twitter feed I've found to follow this trial has been from the National Center for Lesbian Rights. It's not QUITE like being there, but it's updated frequently and has given an excellent overview of the testimony by expert witnesses from the past two days.

Reading these, I'm finding the testimony of the experts to be alternately heartbreaking and encouraging as I find that those who study these things are learning what I've known by direct experience all along about the gay experience. I'm also finding it affirming and disturbing that the Prop 8 proponent side of the trial is using exactly the arguments one would expect during their cross-examinations. At least, for once, direct testimony to bigoted attitudes toward GLBT persons is going into court testimony in a way which doesn't simply affirm the status quo attitudes.
posted by hippybear at 10:28 AM on January 15, 2010 [1 favorite]


Yeah, I especially liked how the Prop-8 side tried to argue how there's really no discrimination against gays anymore since, look, we have Brokeback Mountain!

You rat bastards! We have movies like that in spite of systemic cultural discrimination, not because it doesn't exist. That's as stupid as when the closet racists who would never dream of voting for Obama smugly pronounced, after his victory, "See? There's no more racism in America!"

This week, I've been embroiled in a heated email exchange with a number of my right-wing friends on the Prop-8 trial. They're intensely against gay rights, with heavy religious rationalization. It's been interesting to point out how their rhetoric is the exact same that was used to promote anti-miscegenation laws, for example, and then watch them contort themselves into all kinds of bizarre defenses. It's yet another vivid reminder of the Swift quote, "It is impossible to reason someone out of something that he did not reason himself into in the first place."

But as entertaining as it can be, it's also deeply disturbing to realize that a large part of fine, upstanding society believes these horrible, ugly things about gay people and will use all their political influence to keep gay people oppressed. It's watching that surreal and unsettling scene in Un Chien Andalou, only instead of the eyeball getting sliced open, they blithely and purposefully take a razor blade to common human decency.
posted by darkstar at 11:06 AM on January 15, 2010 [2 favorites]


Oh, and that NCLR feed really is awesome. Keeping up with every comment.
posted by darkstar at 11:25 AM on January 15, 2010


I'm also following:
Courage Campaign's Prop 8 Trial Tracker.

Firedoglake's Prop 8 Trial Blog.

San Jose Mercury News Live Coverage.
posted by ericb at 11:34 AM on January 15, 2010 [1 favorite]


Yeah, I especially liked how the Prop-8 side tried to argue how there's really no discrimination against gays anymore since, look, we have Brokeback Mountain!

Yeah, my reaction to that line of reasoning was "Oh yes! A hollywood movie about a faggot being beaten to death is an indicator of how far we've come in the past decade!"

It's like, how tone-deaf can you possibly be?
posted by hippybear at 12:03 PM on January 15, 2010 [4 favorites]


Maureen Dowd: An Odd Couple Defends Couples That Some (Oddly) Find Odd.
posted by ericb at 12:17 PM on January 17, 2010


Margaret Hoover | Fox News: Why I’m Joining the Fight for Marriage Equality.
posted by ericb at 12:21 PM on January 17, 2010 [2 favorites]


Was the Supreme Court Prop 8 Broadcast Ban Ruling a Bad Omen?
posted by ericb at 12:50 PM on January 17, 2010


Reenactment of Prop. 8 Trial to be posted on YouTube.
posted by ericb at 7:21 AM on January 18, 2010


Summary of the first week of the trial.
posted by ericb at 7:23 AM on January 18, 2010


Huh. Here's an askme about re-enacting the trial.
posted by rtha at 9:31 AM on January 18, 2010


Still no video posted, but you will eventually find the reenactment details at Marriage Trial.
posted by hippybear at 10:15 AM on January 20, 2010


Watch: Deposition Videos of Prop 8 Witnesses Who Withdrew.
posted by ericb at 2:17 PM on January 20, 2010


Watch: Deposition Videos of Prop 8 Witnesses Who Withdrew.

I certainly wish I could. "This video has been removed by the user" for both of 'em.
posted by hippybear at 8:51 PM on January 20, 2010


I can't believe I'm actually asking this, but is anyone aware of any Twitter feeds or tags with reasonably reliable updates? Trying to find an 'up to the minute' source to breathe a little more life than summaries; I'm trying to get someone to package it better on a general interest news site but the lack of live (or even delayed) video makes for less than compelling presentation.
posted by A Terrible Llama at 2:35 AM on January 21, 2010


NCLR's twitter coverage has been good, to the point where sometimes I have to hide the window completely because apparently I *can* become enraged when reading 140-character chunks of text.
posted by rtha at 5:27 AM on January 21, 2010


The Advocate's twitter stream contains live updates. They are often, like NCLR's, infuriating.
posted by Pope Guilty at 5:43 AM on January 21, 2010


Thanks, both.
posted by A Terrible Llama at 8:32 AM on January 21, 2010


Transcripts of the trial posted by Equal Rights Foundation.
posted by hippybear at 1:17 PM on January 22, 2010


from the day 8 transcript--
Boies: "You are saying here that after same-sex marriage was legalized, the Netherlands legalized incest and polygamy. Whether that was causal or not, you're saying that's what happened after same sex was legalized, correct, same-sex marriage?"

Tam: "Yeah, look at the date. It's -- polygamy happens afterwards."

Boies: "Who told you that, sir? Where did you get that idea?"

Tam: "It's in the internet."

Boies: "In the internet?"

Tam: "Yeah."

Boies: "Somewhere out in the internet it says that the Netherlands legalized incest and polygamy in 2005?"
[facepalm]
posted by lullaby at 9:27 PM on January 22, 2010 [6 favorites]


Prop 8 Trial Judge is Gay, and Media is Finally Talking About It.
posted by ericb at 12:56 PM on February 7, 2010


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