Answers to Walker’s questions

June 15, 2010 at 2:39 pm 109 comments

By Julia Rosen

Both sides turned their homework in early. They each submitted written responses to Judge Walker’s 29 questions in advance of tomorrow’s closing arguments. They also addressed all of the questions, even though some were directed just at the proponents.

Here are the responses from the good guys.

View this document on Scribd

And here are the defense’s answers.

View this document on Scribd

Consider this to be a preview of tomorrow’s closing statements.

Entry filed under: Uncategorized.

Olson & Boies Exorcise the Ghosts of Homophobia Past Preview of the big day

109 Comments Add your own

  • 1. Richard A. Walter (soon to be Walter-Jernigan)  |  June 15, 2010 at 2:44 pm

    Thanks, Julia.

  • 2. fiona64  |  June 15, 2010 at 2:47 pm

    I could not get through the D-I’s response because I got hung up on the part where opposite-sex couples might accidentally get pregnant, so even if they didn’t plan to have kids it was “different” for them to get married than for same-sex couples.

    Call me funny, but this particular straight (and childfree) ally thinks that “Bubba’s condom done busted in the back of the Buick, so we got hitched” is a pretty piss-poor reason for denying people the right to civil marriage.


    • 3. Ronnie  |  June 15, 2010 at 2:51 pm

      lol…fiona..that was great…..<3…Ronnie

    • 4. JonT  |  June 15, 2010 at 3:37 pm


    • 5. Alan E.  |  June 15, 2010 at 4:37 pm

      You’re assuming that there was even a condom (or properly used condom at that) in the first place.

      Essentially, bad sex ed = no gay marriages

    • 6. Richard A. Walter (soon to be Walter-Jernigan)  |  June 15, 2010 at 5:16 pm

      Talk about cutting through to the heart of the matter. You go, fiona! Talk about fierce. That was not only fierce, that was ABSOLUTELY FABULOUS!

    • 7. Straight Grandmother  |  June 15, 2010 at 5:17 pm

      Me too Fiona, I thought to myself, “Man they are really reaching” with that comment.

    • 8. Sheryl  |  June 15, 2010 at 9:05 pm

      What a wonderfully true answer. Wonder how long that marriage will last and will Bubba pay child support after the divorce (assuming they even get married). And, in the meantime, two people who really are committed to each other cannot have that opportunity all because they have the same body parts.

      Totally illogical. But then the other side never has displayed logic.

  • 9. Bolt  |  June 15, 2010 at 3:36 pm

    The opponents of gay marriage are absolutists. In the face of the mountains of evidence against them, they cling tight to their belief that gay marriage will facilitate the extinction of the human race. This is an insult to all fair minded LGBTQIAs’.

  • 10. Jeff  |  June 15, 2010 at 3:46 pm

    I cant even read the defense’s answers without feeling sick to my stomach. Seriously I dont know how you all do it.

    • 11. JonT  |  June 15, 2010 at 4:35 pm

      :) I read them in tandem – first the defense response, then plaintiff’s response. Helped the medicine go down. Really after a few of the defense responses, all of the rest of their responses are just a re-wording if what they already said.

      In many of their responses, they referred to things like ‘see our response to numbers 4 and 9’ for example. Again, very shallow compared to plaintiff’s responses.

  • 12. Wade MacMorrighan  |  June 15, 2010 at 3:54 pm

    Did anyone notice that the Prop 8-supporting side said, and I quote, “…gays and lesbians are not entitled to heightened protection under the Equal Protection clause…”

    • 13. Ronnie  |  June 15, 2010 at 3:57 pm

      yes and then I said….then don’t tax us….. > ( …Ronnie

    • 14. fiona64  |  June 15, 2010 at 3:59 pm

      I did indeed.

      BTW, a new study shows (I know, none of us are shocked here) that hate crimes against gay people (more against men than women) have more than doubled in Canada:

      Proponents of Prop 8 are tacitly lending their approval to this kind of behavior.


    • 15. JonT  |  June 15, 2010 at 4:32 pm

      Yes, they made that statement repeatedly (their whole response was very repetitive IMO).

      I think they are stressing that ‘rational basis’ is all that’s required here – GLBT cannot be considered a ‘suspect class’ subject to a ‘heightened scrutiny’.

      I confess to not being an expert in these matters :) Ask Kathleen (though I believe this distinction, and it’s implications have been discussed many times on this site already).

      • 16. Kathleen  |  June 15, 2010 at 5:50 pm

        That’s right, JonT. That’s what they mean in stating g&l not entitled to heightened protection under the Equal Protection clause. They’re reiterating their claim that the appropriate level of judicial review is ‘rational basis’ – i.e., the lowest level of scrutiny. Under this level of scrutiny the discriminatory law need only be ‘rationally related’ to a ‘legitimate’ government interest.

  • 17. Phia Westfall  |  June 15, 2010 at 4:07 pm

    Okay… looking at the D-I’s responses and scratching my head. Check pages 32-34 (of the Scribd document) answer to question 3 to plaintiffs and defendants (what’s the difference between straight and gay couples) — they claim it’s “undeniable that only the sexual union of a man and a woman is capable of producing offspring”and that “only the union of a man and a woman can provide a child with both of its biological parents”

    I’m sorry, but have these folks never heard of in vitro fertilization? I’m not exactly “old” at 29, but I knew about “test-tube babies” as a kid growing up in a Mormon family (don’t worry, I escaped!) I think those claims are quite easily deniable, myself.

    And the next claim they make is just silly — “only the union of a man and a woman can provide a child with a father and a mother.” Well, DUH! And only the combination of chunky peanut butter and white bread can provide grape jelly with a “traditional” PB&J sandwich. I guess I’ll have to stop using wheat bread and creamy peanut butter now…

    • 18. JonT  |  June 15, 2010 at 4:43 pm

      Yes – the defense response included this gem: ‘This unique property of opposite-sex
      relationships is why marriage is “fundamental to our very existence and survival.”

      I believe that to be incorrect on it’s face. Opposite-sex relationships have nothing to do with procreation.

      Opposite-sex SEX, on the other hand is need for pro-creation, and therefore *is* “fundamental to our very existence and survival.”.

      And as you point out, due to the wonders of biomedical engineering, even sexual intercourse is not a requirement for procreation!

      • 19. fiona64  |  June 15, 2010 at 4:46 pm

        JonT wrote: Opposite-sex SEX, on the other hand is need for pro-creation,

        Yep … and no marriage is required to procreate.

        (I think this is the point that the D-Is are missing: you don’t have to procreate if you’re married, and you don’t have to be married to procreate.)


      • 20. Phia Westfall  |  June 15, 2010 at 6:03 pm

        fiona64 wrote: I think this is the point that the D-Is are missing: you don’t have to procreate if you’re married, and you don’t have to be married to procreate.

        I don’t think they’re missing that point at all. They know it quite well, they just don’t like it. That’s the crux of this whole battle: They believe that if you’re married, you should be making babies… and if you’re not married, then you shouldn’t even be having sex.

        I think it’s not so much our “very existence and survival” that’s at risk… it’s that set of rules and limitations that the anti-SSM camp is afraid won’t survive.

      • 21. JonT  |  June 15, 2010 at 6:16 pm

        @Phia: “I think it’s not so much our “very existence and survival” that’s at risk… it’s that set of rules and limitations that the anti-SSM camp is afraid won’t survive.

        Yes, that’s it exactly IMO. Such belief’s are primarily a religious imperative. To believe/allow otherwise, further erodes the primacy of religion in society in their view.

        Much like the battles to teach ‘creationism/ID’ in schools alongside that satanic ‘science’ of evolution’, lest the biblical view of creation be relegated to the mythological footnotes of history where it belongs.

    • 22. Alan E.  |  June 15, 2010 at 4:49 pm

      “undeniable that only the sexual union of a man and a woman is capable of producing offspring”

      Cup + Magazine + Turkey Baster = child. no sex involved (sorry if this is too crude for some people)

    • 24. Straight Ally #3008  |  June 15, 2010 at 4:51 pm

      IVF? But that involves that atheistic science stuff!


    • 25. Wade MacMorrighan  |  June 15, 2010 at 9:33 pm

      Phia, since the Prop 8 Trial ended, and before Closing Arguments began, many organizations aligned with NOM have voiced a certain amount of opposition to in vitro fertilization!

  • 26. Kitty  |  June 15, 2010 at 4:19 pm

    Scribd doesn’t work for me. I see that the AFER website has the questions and the plaintiffs’ responses for download, but is there somewhere I can see the D-Is’?

    • 27. Kathleen  |  June 15, 2010 at 5:57 pm

      Kitty, if we can figure out a way for me to email it to you, I’ll be glad to.

      If you’re on facebook, go to the ‘Prop 8 Trial Tracker’ fb page, and look for my posts: Kathleen Perrin (they’re all over the wall). Send me a private message through facebook and tell me what email address to send it to.

      If you’re not on facebook, hmmmm.. not sure how to get your email addy w/out you posting it here.

      • 28. Kathleen  |  June 15, 2010 at 6:46 pm

        Kitty, try this:
        Proponents’ (D-Is) Answers (Doc 687)

        If that doesn’t work, we’re back to trying to get your email address to me.

  • 29. JonT  |  June 15, 2010 at 4:26 pm

    I have finally finished reading both documents. I found it interesting that plantiffs (pro-ssm) side answered the questions for the defendants (anti-ssm) :)

    The defendant’s arguments seemed to always boil down to:

    1. Marriage is for procreation only. Even if accidental (re: fiona’s funny ‘bubba’s condom’ comment above :)

    2. The state has a compelling need to encourage opposite-sex marriage, since we all know that children are always better off if raised by the bio moms and dads.

    3. Marriage has always been between a man and a woman (with ‘few exceptions’ or a ‘hand full of exceptions’ or variations on that theme).

    These themes were repeated constantly in their response.

    Actually, I had always thought that real ‘traditional marriage’ as described in the bible, was one man, and as many women as he could afford to own, but whatever.

    At any rate, I think we have all addressed these erroneous assumptions in one form or another over the course of the last several months in these comments :) I believe plaintiffs have as well in court.

    One interesting response was to question #14 to both defense and plaintiffs: “What does the evidence show regarding the difficulty or ease with which
    the State of California regulates the current system of opposite-sex and
    same-sex marriage and opposite-sex and same-sex domestic partnerships?

    Defense basically said, “We are unaware of any evidence regarding the difficulty or ease with which the
    State of California regulates the current system of opposite-sex and same-sex marriage and
    opposite-sex and same-sex domestic partnership.
    “, whereas plaintiffs show quite a bit of difference – breaking down the legal recognition of the various relationships currently codified in California law into 5 distinct categories!

    What a disconnect!

    I encourage you guys to read them yourselves. In my opinion (admittedly quite biased) defense was repetitive and shallow, plaintiff’s were much more thorough – I guess they have to be considering the burden rests with the plaintiffs.

    I especially liked parts when plaintiff’s used defense witness blankethorn’s testimony to support plaintiffs arguments :)

    Pure gold :)

    • 30. Alan E.  |  June 15, 2010 at 4:41 pm

      I tried to read the Plaintiff side first, but I kept going to the same question of the Proponent’s answer to see what cockamamie answer they would give. I was almost never disappointed.

      I thought it pretty funny that O&B answered the Proponent questions, too.

      Did you also notice that O&B were able to answer ALL the questions in a much shorter but succinct manner than the proponents were able to answer just theirs and the mutual questions?

      • 31. JonT  |  June 15, 2010 at 4:47 pm

        @Alan: …I was almost never disappointed

        :) Me neither, which is why I ended up reading both documents, one question at a time – first from defense, and then plaintiff.

        I really liked the fact that plaintiff answered defense’s questions too. And yes, they were much more succinct and germane, where defense was often ‘windy’ as someone described it in a previous thread.

    • 32. Wade MacMorrighan  |  June 15, 2010 at 9:46 pm

      Yeah, JonT, you got that right, that marriage is supposed to be for “procreation”, only (despite those infertile couples or elderly couples that can marry, but that doesn’t interfere with Maggie’s “Marriage Message”!); in fact, Maggie Gallagher would like to see the US return to a time where Marriage is the only appropriate channel for sex!

      Oh, and JonT, actually you;re right about the Bible, ’cause, at least according to “America’s Best Christian”, marriage is between one man, one woman, the help, and his whores! LOL! (Gods, I wish I could find that vid. on YouTube, again!) Why can they not understand the hypocrisy of their statements?

      • 33. Ronnie  |  June 15, 2010 at 9:53 pm

        Here you go Wade…..<3…Ronnie:

  • 34. Shun  |  June 15, 2010 at 4:51 pm

    I really want to read these documents now but I’m at work, and those sites are blocked for me. Is anyone willing to upload to a private site perhaps and provide direct download links? (nothing like sendspace and mediafire)

    Thanks in advance!

    • 35. Kathleen  |  June 15, 2010 at 6:02 pm

      Shun, if you can tell me where you’d like them uploaded, and it’s something I can access, I’ll be glad to.

      • 36. Shun  |  June 15, 2010 at 6:24 pm

        Thanks for the offer! Actually, I may have gotten sendspace to work. So if you can go to, upload the two files and post the links for downloads here. I really really appreciate it. Thanks again!

      • 37. Kathleen  |  June 15, 2010 at 6:34 pm

        Try this. Have to post the only one link at a time, or my post gets hung up in moderation.

        Plaintiffs Answers (Doc 686)

      • 38. Kathleen  |  June 15, 2010 at 6:35 pm

        Proponents’ (D-Is) Answers (Doc 687)

      • 39. Kathleen  |  June 15, 2010 at 6:35 pm

        Let me know if they work for you. Someone else was having trouble w/ Scribd.

      • 40. Shun  |  June 15, 2010 at 6:42 pm

        They work! awesome!!

        Thank you so much for your help Kathleen. Just to add that I always look forward to your comments. :)

      • 41. Kathleen  |  June 15, 2010 at 6:51 pm

        You’re welcome. Glad it worked.

        I was away for a few hours this afternoon and am just now getting caught up on all the posts. It’s great to see everyone so excited and engaged. I can really feel the energy here!

  • 42. Straight Ally #3008  |  June 15, 2010 at 4:57 pm

    A repost, but this is how I’m picturing the two arguments. It’s been a long day, I’m in the need for humor, and I apologize in advance for the NSFW content.

    • 43. James Tuttle  |  June 15, 2010 at 5:13 pm

      O.K. That was freakin’ funny. This site is so serious most of the time…I think with the stress that we will all be facing over the next few weeks, everyone needs a good laugh today. Thanks for posting that.

    • 44. Richard A. Walter (soon to be Walter-Jernigan)  |  June 15, 2010 at 5:28 pm

      Straight Ally #3008, you have just made my day with this video! This is HILARIOUS! Thanks so much

    • 45. TammyT  |  June 16, 2010 at 8:32 am

      Thank you. Everyone should watch that. It was fabulous.

  • 46. bJason  |  June 15, 2010 at 5:14 pm

    I also read both side-by-side and agree with the general sentiment here – plaintiffs (O&B – our side) were succinct, thorough and cited evidence and precedent (and were even understatedly compassionate in their oratory) while defendants (ProH8) were repetitive, nebulous and at times even dismissive in their responses.

    I am curious, does not the following point (and the substantial evidence to back it up presented at trial) in and of itself prove animus on the part of Prop H8:
    “The Yes on 8 campaign messages played on the public’s fear that children would be taught in school that gay and lesbian individuals and their relationships are equal to heterosexual individuals and their relationships.”? To teach kids “gay is OK” is bad = animus, right?

  • 47. Kathleen  |  June 15, 2010 at 5:20 pm

    UPDATE: Defendant L.A. County Registrar-Recorder/County Clerk also waives closing arguments.

    • 48. Kathleen  |  June 15, 2010 at 5:33 pm

      just subscribing

  • 49. bJason  |  June 15, 2010 at 5:40 pm

    East coast here. I think I might explode tomorrow waiting for this to begin. Must go eat dinner (been reading).

    If nothing else, this trial has facilitated this community. A victory before Judge Walker not withstanding, we now all have each other! In the end, we will prevail!

    I love my new P8TT family!

    See you tomorrow!!

    <3 Jason

    • 50. Ronnie  |  June 15, 2010 at 5:45 pm

      live blogging…..bring it on…ditto to you bJason….<3….Ronnie

      • 51. Ronnie  |  June 15, 2010 at 5:48 pm

        and to all…..We are a family like a giant tree…reaching out towards the sky…and the rest of the song from Dream Girls…you know the song…I dedicate it to all Trial Trackers and our friends we gained though other FB pages & blogs….<3…Ronnie

      • 52. Richard A. Walter (soon to be Walter-Jernigan)  |  June 15, 2010 at 6:00 pm

        Yeah, Ronnie. I just wish you and bJason were closer to Fayetteville/Ft. Bragg area of NC. We would go in the office here at my place and fire up the desktop and my laptop and keep up with the live blog all day, and I would keep both coffee pots and the espresso machine going.

    • 53. JonT  |  June 15, 2010 at 6:04 pm

      Back at you Jason! :)

    • 54. Kathleen  |  June 15, 2010 at 6:58 pm

      See you tomorrow, Jason!
      <3 Kathleen

      • 55. Richard A. Walter (soon to be Walter-Jernigan)  |  June 15, 2010 at 7:22 pm

        Is there anybody on here who is in Cumberland County, North Carolina who would like to have a P8TT Closing arguments get-together? I have a router, so as long as we stay in the house under the air conditioning, any laptop should work. Just get here about 12 EDT so we can get everything set up.

  • 56. Shun  |  June 15, 2010 at 7:01 pm

    Thanks to Kathleen, I’m now reading the comments and getting very bored with the prop 8 people’s arguments.

    This I found most interesting in particular:

    To the question of “What evidence in the record shows that same-sex couples are differently situated from oppositesex couples where at least one partner is infertile?”

    One of their answers was….
    “Second, the fertile partner in an opposite-sex couple is capable of procreative sexual activity with a third party, and allowing all opposite-sex couples to marry
    discourages the fertile partner of a sterile spouse from engaging in such potentially procreative activity with other individuals.”

    Am I dumb for not seeing the logic here or is there really no logic?

    • 57. Kathleen  |  June 15, 2010 at 7:07 pm

      That was a literal laugh out loud moment for me. I think it might be some of the craziest stuff in there.

    • 58. JonT  |  June 15, 2010 at 7:20 pm

      Hmm. John Edwards obviously did not subscribe to that… odd belief. :)

    • 59. Richard A. Walter (soon to be Walter-Jernigan)  |  June 15, 2010 at 7:24 pm

      No, Shun, you are correct. There is NO logic in that statement whatsoever.

    • 60. Trouble Town  |  June 15, 2010 at 10:08 pm

      Yes – this is the argument that made my head explode.

      I don’t get this at all.

      The D-I responses seem like a total failure of logic. I can’t believe that highly-educated professionals actually composed this bizarre series of responses (I mean, they had to pass the Bar exam, right?).


    • 61. Lymis  |  June 16, 2010 at 8:42 am

      No, there’s real logic there, but the problem is that it doesn’t support keeping gay people from marrying.

      The idea is that if you let (make) people marry, they will only have sex with their own spouse. (Hah.)

      Therefore, even if a couple can’t have babies together, if you make them marry, they won’t go having sex with someone else who is married (again, hah.) or with someone who would get married to someone else because that’s the best way to have sex. (Double hah.)

      By making infertile heterosexuals marry, their spouse isn’t likely to go breaking up another heterosexual marriage. (uh, right.)

      But if you buy this logic, then you should be making all the gay people get married to each other. Gay people aren’t sterile – they just can’t have babies together. If being married keeps people faithful (moving on….) then you want gay people out of the pool of people who might otherwise complicate fertile heterosexual marriages, either by being in one (oops) or by having sex with one of the partners.

      I do not that nowhere in either the plaintiffs or D-I’s arguments is there any real allowance for the existence of bisexuals.

  • 62. Dave in Maine  |  June 15, 2010 at 7:05 pm

    For more disconnect, see:

    NOM has their own blogging, tweeting, etc. site to follow the closing arguments. It does not appear that they had such a site during the actual trial (with good reason, I’m sure). I get the NOM emails (leftover from my spying during the Yes on 1 campaign here in Maine last year) and it is amazing how they seem to be living in an alternate universe. There was no mention of this site in any of the emails from NOM previous to the one the other day listing the address to the site.

    I’ve signed up. I’m curious to see how they spin this.

    Dave in Maine

    • 63. Kathleen  |  June 15, 2010 at 7:11 pm

      I thought I read somewhere that MG was going to be live tweeting from the courtroom. But now I can’t find it.

    • 64. JonT  |  June 15, 2010 at 7:14 pm

      Oh, that’s neat… A brief reading of the home page and you’d get no idea that these are the haters.

      How lame. Can’t they be obvious about their opposition? I like how they link to an advocate article to lend that ‘veneer’ of respectability and I guess hoping to confuse anti-prop 8 people, at least for a minute or two.

      They link to Judge Walker’s questions, but curiously do not link to the responses of the respective parties.

      And they call themselves: ‘Proposition 8 On-line Courtroom’.

      Deception! That’s all they got isn’t it! Haha!

      • 65. JonT  |  June 15, 2010 at 7:27 pm

        Ok, I hate to respond to my own post, but the first sentence on that page sunk in:

        Thanks for visiting, your home for up-to-the-minute coverage of the Prop 8 trial and appeal.


        Does that mean that 1) they are expecting to lose this one, 2) this is their answer to p8tt during the ‘appeal’, and 3) they believe they are not currently winning the media battle with their arguments so far, and need a website to try to compensate for that failure and to compete with p8tt?

        I’m guessing they will not allow comments either. As long as that is the case, I hope people will see the site for the sham it is.

    • 66. Richard A. Walter (soon to be Walter-Jernigan)  |  June 15, 2010 at 7:32 pm

      Thanks for the heads-up, Dave in Maine. They did have a site during the trial, and it had a logo that saw some legal wrangling along with everything else. They thought they would get CC to change the logo for this site by filing an injunction about it infringing on their logo. But their site did NOT have active comments, and their so-called live blogging was merely their chosen snippets entered in by Andy Re-pug-NO at the end of the day. But yes, I am definitely interested in seeing how MagPie Gag-on-her and her crowd, including Brainless Brown, spin this. I also want to see what kind of a spin MagPie’s husband, Joe Solmonese tries to put on this from his plushly decorated, fashionable Washington, DC office.

  • 67. Dan Hess  |  June 15, 2010 at 7:14 pm

    I’ll be at work until 6 (3 Pacific Time) tomorrow, so I probably will miss most of the “live” section of this debate. Know that my heart goes out to all of you, and I firmly believe that we’re going to win this thing.

    I find the defendants’ “only opposite-sex marriage allows a child to be raised by both biological parents” argument to be bullshit. First, nowhere has it been proven that you NEED both biological parents to be healthy. If I were raised by lesbian parents and my biological father came along and tried to raise me, I’d probably view him as an interloper. My “real parents” would be the women that raised me.

    Besides, with modern gene-splicing technology it’s theoretically possible to transfer DNA from a female egg cell to a “blank” sperm cell and use that in IVF, thus allowing a child to have two biological mothers (likewise for two biological fathers except you splice one father’s sperm DNA onto a “blank” egg). Obviously a gay family would still require a surrogate even if the child is entirely biologically theirs and a lesbian family could only have female children (since eggs cannot have a Y chromosome), but it knocks some major holes in the defense’s argument.

    • 68. Shun  |  June 15, 2010 at 7:44 pm

      This is the first time I’ve heard about changing the sperm or eggs for such purposes. Do you know of any research/paper/news article that I can more on this topic?

      • 69. Dan Hess  |  June 15, 2010 at 8:34 pm

        No, unfortunately. I don’t even know if anyone’s working on doing such a thing. I know that it’s possible to remove the DNA from a sperm or egg cell and to splice bits of DNA onto sperm or egg cells. You could, theoretically, transfer the entire strand of DNA from a sperm cell to an egg cell without too much difficulty. It’d probably be an expensive procedure and again, I’m not sure if anyone’s even researching using those gene splicing techniques for homosexual fertilization, but if you find out anything, let me know.

      • 70. fiona64  |  June 16, 2010 at 8:33 am

        It’s the same methodology used for gene therapy. It could also be used for human cloning (which is an ethical no-no).


    • 71. Kathleen  |  June 15, 2010 at 7:57 pm

      I think the most telling question on this issue is #7 to Proponents: Assume the evidence shows that children do best when raised by their married, biological mother and father. Assume further the court concludes it is in the state’s interest to encourage children to be raised by their married biological mother and father where possible. What evidence if any shows that Proposition 8 furthers this state interest?

      As Plaintiffs’ answer states, even if that were true (and evidence shows otherwise wrt the first assumption), there is nothing about Prop 8 that encourages children to be raised by their married, biological mother and father. Opposite sex married couples can still raise their biological children even if ss couples can marry, nor will allowing ss couples to marry discourage opposite sex married couples from raising their biological children. Prohibiting ss couples from marrying isn’t going to stop ss couples from giving birth to, adopting or raising children together.

      The only thing Prop 8 accomplishes wrt this issue is to withhold the legitimacy of having married parents from the children of ss couples and in doing so, further stigmatize the children by treating them and their families as second class citizens. …

      Btw, if you read through Proponents answers,they do a lot of harping on the importance of strengthening and legitimizing this bond between parent and child — a laudable goal that would be advanced by allowing ss parents to marry. Again, their argument seems to support striking down Prop 8.

      Which brings me to my new favorite game…. take Proponents’ answers, tweak them ever so slightly, and show how convincingly they argue against their own case. :)

      • 72. Shun  |  June 15, 2010 at 9:16 pm

        I forgot where they said this but I also found it very interesting how that the needs of the children outweigh the needs of the parents/adults….including those that don’t even have kids. It’s as if to say that children are the most important aspect of a marriage…but as if the couples’ happiness/needs aren’t important.

      • 73. Shun  |  June 15, 2010 at 9:17 pm

        how “they said” that the needs of the children…

        I tend to leave out words as I type them out for some

      • 74. Kathleen  |  June 15, 2010 at 9:27 pm

        Shun, I think they presented that viewpoint during testimony – must have been Blankenhorn… something about the evils way the purpose of marriage had transitioned away from it being about supporting children to the selfish desires of the couple. I’ll see if I can find it.

      • 75. Kathleen  |  June 15, 2010 at 9:34 pm

        I can’t find a succinct statement, but the idea is peppered throughout Blankenhorn’s testimony — days 11 & 12

      • 76. Shun  |  June 15, 2010 at 10:36 pm

        Nice to know. I think I mentally blocked out anything that man said so I fail to remember it lol

      • 77. Dave in Maine  |  June 16, 2010 at 4:06 am

        All throughout the marriage equality discussions in Maine and California that I’ve heard (and been a part of) the emphasis from their side has been that marriage is about a man and a woman before God and, second, that it is about raising a child.

        The feeling I get is that we are free to marry ANY random man or woman, as long as it’s an opposite gender. Marry for God and child, not for love. Maybe love will come later? Maybe never? But that’s not the point. What kind of world is that they live in, really?

      • 78. Richard A. Walter (soon to be Walter-Jernigan)  |  June 16, 2010 at 6:13 am

        And isn’t it just so wonderful that they forget about those of us who have children who want our children to have the same advantages that other married couples’ children have? They continually cry “Think of the children! Protect the children!” and all the while they are doing such irreparable harm to their children who are gay, and to our children by forbidding us to marry and provide that same legal stability for our children that their children supposedly have. (Symphony of sarcasm in the first sentence)

    • 79. Jeremy  |  June 15, 2010 at 8:08 pm

      Some wiki to get you started:

  • 80. christina  |  June 15, 2010 at 8:27 pm

    i tried to read this, but the print is very small lol and such tchnical words are used it just made my head spin haha. but yes i believe the defense is based apon religion, and that we will win this

    • 81. Shun  |  June 15, 2010 at 9:15 pm

      Have you tried downloading them in the pdf format? You can probably read them in a bigger font that way

  • 82. Sheryl  |  June 15, 2010 at 9:34 pm

    Okay, could be at the courthouse tomorrow (thanks to becoming unemployed last week, OUCH). However, I’m thinking that I really want to hear the closing arguments the same way I followed the trial — with all of you here. That way I get all of the instant comments.

    Anyone from the SF-Bay Area going to be at the closing arguments?

    • 83. fiona64  |  June 16, 2010 at 8:34 am

      Alan E. is planning to be there (according to his FB page).

      I’ll be here in the office, checking in when I can.


  • 84. VoxCanaille  |  June 15, 2010 at 10:21 pm

    Hi. First post. I read the D-I (page 39). It says in Baker vs Baker, 13 Cal 87, 103 (Cal 1859). “A woman, to be marriageable, must, at the time, be able to bear children to her husband, and a representation to this effect is implied in the very nature of the contract”. Now, obviously that is out of context, but would that mean that infertile couples (ie in 1859 that means a defective piece of property, the woman) cannot fulfil the contract, and therefore cannot enter into that contract.

    • 85. Felyx  |  June 15, 2010 at 10:30 pm


      Interesting point there…don’t forget the father (or nearest male relative) had to be formally asked and then publicly consent to the marriage. It was also the male guardian’s duty to protect the virtue of the innocent childbearer to be.

      Just a thought, Felyx

      • 86. JonT  |  June 15, 2010 at 11:12 pm

        And felyx: Wasn’t also required, according to the bible, that if the innocent childbearer to be was not a virgin, she was to be presented at the door of her father’s house and stoned to death?

        Ahh, the ‘good’ old days. :(

    • 87. JonT  |  June 15, 2010 at 11:01 pm

      Yes, an interesting observation. Some of the defendant’s arguments in this regard dealt with the subject of annulment in the cases of ‘fraud’. Ie: Two people enter into marriage, but one is infertile for whatever reason, and is aware of this fact, and does not disclose this fact to their prospective spouse prior to marriage.

      This was to support their argument that marriage is for the purposes of procreation.

      I would tend to agree that if two people are considering marriage, solely for the purposes of bearing children, and one is infertile and does not disclose that fact… I guess that would be fraudulent (or at least quite dishonest), *only* if both parties agreed that the marriage was for the sole purpose of procreation.

      But that was 1859…? How often does that occur today?

      How often do two people decide to marry for the sole purpose of bearing/raising children? Isn’t there usually something more to a relationship than that?

      And what does that have to do with allowing SSM? :)

      ““A woman, to be marriageable, must, at the time, be
      able to bear children to her husband, and a representation to this effect is
      implied in the very nature of the contract”

      In 1859 that was probably a valid assumption. It was probably also a valid assumption that the woman would be a virgin as well.

      Was it possible to annul a marriage based on the fact that at ‘honeymoon’ time, it was discovered the bride was not, in fact, a virgin? Hell, that kind of attitude is still valid in parts of the world today.

      Don’t see how that supports their (defendants) case.

      But that’s just me :)

      • 88. fiona64  |  June 16, 2010 at 8:35 am

        In 1859, we were still very much an agrarian economy. It was presumed that couples would breed (and do so a lot), so that there were numerous heirs to work the land, etc.


  • 89. VoxCanaille  |  June 15, 2010 at 10:24 pm

    I see that many people here, like me, saw only one answer from the D-I, repeated throughout, using slightly different words.

    In many of them, they didn’t even answer the question that was asked.

  • 90. Les Late  |  June 15, 2010 at 10:28 pm

    OK, am I getting this right? Straight couples where one partner is infertile should still GET MARRIED because it would keep the fertile one from straying and accidentally getting pregnant “out of wedlock?” Has anyone mentioned that in many gay relationships BOTH PEOPLE are most likely fertile, and if they don’t marry each other they’ll possibly go out and get pregnant “out of wedlock?” Especially if they’re foeced to deny being gay so they have ‘”straight” sex to please society? Do they not know that sometimes gay people are bi and do get preggers the “natural way?” Man they’re stupid!! Unbelievably stupid!!!

    • 91. Felyx  |  June 15, 2010 at 10:40 pm

      Dear Les,

      Please don’t be ridiculous…denying gays the right to marriage will ENSURE that they, the gays, do not get pregnant out of wedlock…duh!!!! And there is an added advantage, if gays can’t get married then they will not try to tempt a straight married fertile person into an ‘illegitimate pregnancy’ since even though they can choose to be heterosexual they won’t…ever….never ever…and even if they do they will just prey on the same gendered spouse anyway and still not procreate…which is the core meaning of marriage…not sex…which has nothing to do with procreation within the confines of a traditional marriage.

      Hope that cleared things up for you. Felyx

    • 92. JonT  |  June 15, 2010 at 11:08 pm

      Oh come on Les! Logic is not something that’s acceptable in their arguments! :)

      “Especially if they’re foeced to deny being gay so they have
      ‘”straight” sex to please society?”

      Yes. Can you guess the many happy bio-mom/dad households that creates :(

      I think blankenhorn (defense ‘expert’) actually acknowledged this in testimony :)

    • 93. Dave in Maine  |  June 16, 2010 at 4:15 am

      This backward logic is pervasive on that side. During the testimony here in Maine at the public hearing last April, one man said he was against same-sex marriage because he came home one day and found his wife in bed with another woman.


      My boyfriend was married for over 30 years (because he got a girl pregnant). They have great kids and grandkids now, but so much misery over the decades for both of them.

      Why do these people insist on forcing gays to marry straight people and causing so much misery? (Although many people I’ve spoken to have told me that marriage is misery anyway, but at least give us the choice to be miserable with someone we love!)

      I wonder if it’d be okay to ask Michael Heath for his daughter’s hand in marriage. Is that what they want?

      Dave in Maine

  • 94. Expect More of the Same « Prop 8 Trial Tracker  |  June 15, 2010 at 11:01 pm

    […] First, I apologize for my absence over the past few weeks, it’s been a hectic time with the June primary election. With that gone, I had a bit of time to go over the responses to Judge Walker’s questions, much like some of my fellow Trial Trackers did in the comments to the original post. […]

  • 95. RebeccaRGB  |  June 15, 2010 at 11:54 pm

    Where did this 29 figure come from that I keep seeing everywhere? There are 39 questions being asked: 12 to the plaintiffs, 12 to the defendants, and 15 to both: 12 + 12 + 15 = 39.

  • 96. RebeccaRGB  |  June 15, 2010 at 11:56 pm

    )(*$)%$)* WordPress; why don’t you have a Preview or at least a Delete option!?!?

    Where did this 29 figure come from that I keep seeing everywhere? There are 39 questions being asked: 12 to the plaintiffs, 12 to the defendants, and 15 to both: 12 + 12 + 15 = 39.

    • 97. Kathleen  |  June 16, 2010 at 12:01 am

      From people who can’t add or who can’t type. :)

  • 98. plublesnork  |  June 16, 2010 at 12:57 am

    A polite request:

    When documents are posted on Scribd, can you please, where possible, post direct URLs for download the .PDF/.DOC/.whatever files? Scribd is really, really awful in terms of accessibility and as such I can’t read the documents.

    • 99. Kathleen  |  June 16, 2010 at 1:08 am

      plublesnortk, I’m not sure how to do that.

      I know that if you go to the link, it’s not necessary to read the document on the page. To the right, there is a download button. Are you saying that doesn’t work for you?

  • 100. Justin Esq.  |  June 16, 2010 at 2:46 am

    Let justice roll down like waters and righteousness like an ever-flowing stream. Amos 5:24.

  • 101. Rebecca G  |  June 16, 2010 at 6:42 am

    If Prop 8 is upheld after the evidence presented at trial and after reading these answers then there truly is no justice in the world.

    Like the insanity of Religion that requires one to except what they are told unquestioningly so are the answers given by the Prop 8 proponents. You really need some twisted logic to follow their answers.

  • 102. Frank  |  June 16, 2010 at 7:00 am

    For the question about the differences in infertile couples, the proponents say this is the second of 3 differences:

    the fertile partner in an opposite-sex couple is capable of procreative sexual activity with a third party, and allowing all opposite-sex couples to marry discourages the fertile partner of a sterile spouse from engaging in such potentially procreative activity with other individuals.

    WTF? same-sex couple can use a third person to procreate — we have to actually. And as for the second part…are they suggesting marriage keeps people from screwing around? or that it keeps people from seeking reproductive/fertility assistance?

    That whole document was a lot of verbiage that said little. It was hard to read and beat my head against the wall at the same time!

    • 103. Frank  |  June 16, 2010 at 7:09 am

      Sheesh. how did I miss the earlier discussion of this question the first time I read the comments?? Too early in the morning I guess….

    • 104. Rebecca G  |  June 16, 2010 at 7:10 am

      Like I said in my comment above. You really need some twisted and tortured logic to follow their argument.

      My best friend’s daughter and partner are one of the 18,000 and they are going to be parents in October. Guess what, they used a third party!


      The bigots really are insane because their response actually makes sense to them.

  • 105. Lymis  |  June 16, 2010 at 8:50 am

    I love the logic that straight people who are mutually infertile should still get married, because that makes marriage the norm, and even if they can’t have babies, it encourages other straight people to get married (because that’s what everyone does) and then their biological children will have married parents.

    But somehow, that doesn’t translate to wanting gay couples to get married – effectively making it something that everyone can do, making it even MORE of an encouragement for those fertile couples to get hitched.

    No, instead, gay couples need domestic partnerships or nothing at all, which effectively shows those young breeders that you can have a life, spouse, and healthy kids without getting married.

    So infertile straight couples = Role Models, while infertile gay couples = will destroy marriage. How’s that again?

  • 106. Lynn  |  June 16, 2010 at 11:17 am

    I found my favorite part in the Proponents response on page 20. The different between infertile couples being allowed to marry and same sex partners being allowed to marry. It would be intrusive to determine whether a person is infertile, so we might as well just let ’em (now if it was easy to determine that, apparently they’d want to prohibit marriage there, too. Maybe they’d settle for prohibiting it with say any woman over 60?) Allowing an infertile person to marry a fertile person prevents the fertile person from having sex with another fertile person. (All I can say is ???????) And finally – allowing marriage between fertile people discourages people from having sex outside marriage (again, my only response is ?????). These people have GOT to be unbelievably stupid!

  • 107. Dave in Maine  |  June 16, 2010 at 11:23 am

    MG’s tweets on the NOM site are pretty lacking. Good thing that site is showing ALL the prop8 tweets, so that even the NOM people can see our side of it.

    Dave in Maine

  • 108. Dave in Maine  |  June 16, 2010 at 11:30 am

    MG’s tweets are rather lacking on the NOM site. Good thing that all the prop8 tweets are on the site so that the other side can see the truth.

    Dave in Maine

  • 109. SFTom  |  June 16, 2010 at 4:28 pm

    As a 20+ year California attorney living in San Francisco, I think the Court will have a hard time extending suspect-class status to gays and lesbians. We’re talking federal law here, which must be applied far beyond the rarified political echo chamber that is San Francisco (and, to a significantly lesser extent, California). Nor am I persuaded by the notion that it is irrational for the citizens of California to decide, democratically, that they view heterosexual and homosexual unions differently (which, as a matter of simple biology, they generally are).


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