Lunch Break Summary

June 16, 2010 at 12:34 pm 41 comments

By Rick Jacobs

First, apologies. I lost internet connectivity here in the courtroom and, try as I may, I could not get it back. When finally I did, Julia was probably going nuts trying to figure out what went where.

Ted Olson left literally no doubt that Prop. 8 discriminates unlawfully, that it does harm, that the plaintiffs failed to show a compelling state interest to discriminate. The evidence is clear that heterosexual marriage is not harmed, that procreation is not harmed and that society is actually strengthened by same sex marriage. The judge pushed very hard to ask what would happen if he rejected the plaintiffs’ case, to see how this would harm people. He wanted to know why the voters can’t make decisions like these.

But Olson hit it out of the park. He was consistent in returning to the two points:

1. The Supreme Court has consistently ruled, since 1888 in at least fourteen cases that marriage is a fundamental constitutional right.

2. Same sex marriage, or the discrimination against, is the same as past bans on Chinese men marrying in San Francisco or African Americans marrying white people. IN this case, the discrimination is against someone marrying the person they love based on their sex, not even based on sexual orientation.

Ted Olson also went to the essence here, which is mutability.

And finally, most significantly, on numerous occasions Ted said that the mere fact that this trial and all of the testimony took place are historic and must be seen and heard by all Americans. That’s why we’re all here. That’s why Equality on Trial exists. And that’s why every single person in this country must Testify.

Again, I’m sorry about the internet problems. I’m working to fix that permanently.

[NOTE] from Julia We are all caught up with Rick’s transcripts from this morning. Check out the two posts:

We are trying a new system for updating the posts for the afternoon, so if the formatting looks a little funky, bear with us.

Three things you can do right now to help us get the truth out about the Prop 8 trial:

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Entry filed under: Uncategorized.

Liveblogging Closing Arguments: Part II Lunch is Almost Over

41 Comments Add your own

  • 1. Lesbians Love Boies  |  June 16, 2010 at 12:38 pm

    They showed Blankenhorn’s testimony…does that mean that there actually IS video…not open to us now?

    • 2. Kathleen  |  June 16, 2010 at 12:45 pm

      @LLB, Yes. Walker made video of the entire trial. Cooper objected, but Walker made it clear that the SCOTUS ruling didn’t forbid making video for use internally (e.g., for judge to review). One of Walker’s recent orders asked parties to notify him if they wanted to use parts of the tape in their closing arguments. Plaintiffs said yes. No such request from D-Is, which didn’t surprise me. Nothing really useful to them there and I’m sure they would prefer to forget the entire testimony phase of the trial. :)

  • 3. Richard A. Walter (soon to be Walter-Jernigan)  |  June 16, 2010 at 12:40 pm

    Again, Rick, we understand. Keep up the good work.

  • 4. Ronnie  |  June 16, 2010 at 12:41 pm

    It’s ok Rick…today is an eager day…<3…Ronnie

  • 5. Kathleen  |  June 16, 2010 at 12:45 pm

    Rick, you have a very understanding and GRATEFUL group here. No worries.

    • 6. K!r!lleXXI  |  June 16, 2010 at 1:23 pm

      Ditto! Thank you for liveblogging and we’re not in any hurry. Quality before quantity and in fashionable time!

  • 7. LMTB  |  June 16, 2010 at 12:46 pm

    Thanks for liveblogging, Rick! I know you’re moving very fast, but in the summaries, could you give us some idea of the mood in the courtroom or try to describe some of the non-verbal interactions that we can’t appreciate from our screens?

    Thank you!

  • 8. Pro-Prop 8 Troll  |  June 16, 2010 at 12:48 pm

    Despite the controversy and hoopla, I predict that your side will not get more than 2 votes in the 9th circuit.

    • 9. Richard A. Walter (soon to be Walter-Jernigan)  |  June 16, 2010 at 12:53 pm

      What argument? That you have the lunchbox with the cookies in it and you don’t want to share those cookies? You folks keep crying about protecting the children, and preserving the sanctity of marriage, and yet you conveniently forget that the thing which destroys marriage the most is divorce, and that divorce does a whole lot more harm to children than having two parents who love each other does. And before you try throwing the religious freedom argument out, remember this. When you seek to force your version of religion into the law books, you are trampling on the religious freedom of those whose religion does not agree with yours, and you are thereby going totally against what the founding fathers of this country stood for. Therefore, Ted Olson and David Boies are stronger defenders of the Constitution than you could ever be.

      • 10. Pro-Prop 8 Troll  |  June 16, 2010 at 1:42 pm

        So are you in favor of abolishing no-fault divorce?

      • 11. Richard A. Walter (soon to be Walter-Jernigan)  |  June 16, 2010 at 2:07 pm

        Yes. In fact if you will look at the state of Massachusetts, since 2003 when marriage equality became law there, the divorce rate has actually taken a very dramatic decline. So that proves that by granting marriage equality, you actually strengthen the institution of marriage, and make it more valuable. By making divorce as easy as changing your underwear or your socks, on the other hand, you cheapen it, turning it into something that is disposable.

    • 12. Steve V  |  June 16, 2010 at 12:58 pm

      No, no, no. You’re doing it all wrong. The right troll for this would be something along the lines of “You know, when this hits the SCOTUS, you know their ruling will start with “In an historic 5-4 decision…””

      God, the crop of new trolls on the internet this year needs work.

    • 13. Ronnie  |  June 16, 2010 at 12:59 pm

      Ya Motha….Pro-Plop H8 Naz(i mean troll)….<3…Ronnie

    • 14. fiona64  |  June 16, 2010 at 1:18 pm

      No, no, no.

      You are not doing it right.

      You forgot to quote the Bible, and say things like “I’m not bigoted, but …” or “I have gay friends whom I love dearly, and they’re okay with me feeling like this.”

      -10 for poor form.


  • 15. Steve V  |  June 16, 2010 at 12:49 pm

    Thank you for being there for the rest of us, Rick.

  • 16. Pro-Prop 8 Troll  |  June 16, 2010 at 12:50 pm

    Also, I’d like to see a Newsweek cover with the headline “The Liberal Case Against Same-Sex Marriage”. That’s basically the argument you’re hearing from the other side right now.

    • 17. Hoosier X  |  June 16, 2010 at 1:04 pm

      Jesus loves you, PP8T, despite all your efforts to make Him look intolerant, hateful and stupid.

      Rejoice! That’s just the way Jesus is. No matter how hard you try to discredit Jesus and his teachings with your inane and hateful bigotry, Jesus will continue to love you and forgive you.

  • 18. Jeff W.  |  June 16, 2010 at 12:52 pm

    My heart is breaking. I never in a million years thought that my world would be so profoundly affected by what happens in a court room. And I am not even interested in getting married! But just to know that it might be a possibility for me in the future gives me hope.

    History is being made here. And we are not alone anymore.

  • 19. Jack  |  June 16, 2010 at 12:54 pm

    Thanks for all your hard work Rick. Here I am back with a crucial work deadline and all I can do is follow this trial. I pray this comes out the way we would like or at least in the end it comes out that way.

  • 20. Patrick Regan  |  June 16, 2010 at 12:58 pm

    Don’t worry about internet problems. We’ve all been there in some way, shape or form. We are just happy to have this site to give us yet another perspective on the whole thing. Between you guys and FDL we have lots of good coverage of the trial. Thank you.


  • 21. HunterR.  |  June 16, 2010 at 12:59 pm

    Video outside the courtroom

  • 22. Kathleen  |  June 16, 2010 at 1:00 pm

    Anyone have the link for MG’s NOM live blog? I’m curious how she’s spinning this.

    • 23. nightshayde  |  June 16, 2010 at 1:10 pm

      I’m sure it has something to do with “activist” (read: non right-wing fundamentalist Christian) judges.

      • 24. Mouse  |  June 16, 2010 at 1:15 pm


    • 25. Mouse  |  June 16, 2010 at 1:12 pm

      NOM NOM blog:

      I think it’s amusing that the site has an option for comments but none exist. They really fear the truth over there.

      Also, how do they manage to turn an image of a smiling hetero family and turn it into something so sinister? What should be a Hallmark moment becomes something dark – one can only imagine that they are smiling at the bloodied corpse of the gay couple they have kicked and trampled without even soiling their white Hanes undershirts.

      Maybe they’re smiling and jumping for victory because no one is trying to invalidate their marriage or relationship or existence? It’s just shocking and creepy to put such clown-faced joy masks on your message of hate.

      • 26. Bryan  |  June 16, 2010 at 3:21 pm

        I thought the same thing! Never before have I felt such creepy Aryan race undertones, either. NOM sure knows how to make a family photo look evil.

    • 27. Elfwreck  |  June 16, 2010 at 1:13 pm is the NOM blog.

      • 28. Straight Grandmother  |  June 16, 2010 at 1:31 pm

        Oh I jsut signed up using a lot of vulagrity adn my name and e-mail address, Ronnie would be so proud LOL. I am not typically like that but these vermin piss me off!

      • 29. Ronnie  |  June 16, 2010 at 1:44 pm

        taps SG on shoulder approvingly….<3…Ronnie

    • 30. cc  |  June 16, 2010 at 1:18 pm

      Here’s her twitter:

  • 31. HunterR.  |  June 16, 2010 at 1:06 pm

    and what our friends at FOX have been saying….

    • 32. Kathleen  |  June 16, 2010 at 1:14 pm

      Most fair and balanced report I’ve ever seen come out of the mouths of Faux ‘News’ reporters!

      • 33. Sapphocrat  |  June 16, 2010 at 1:38 pm

        No kidding — amazingly “fair and balanced” for Faux. (I was expecting demonic, hooded figures superimposed over the shots of the SS weddings, or at least ominous music to underscore the threat to civilization by the very existence of us horrible homos.)

      • 34. Pro-Prop 8 Troll  |  June 16, 2010 at 1:47 pm

        Ted Olson is pure evil, for arguing against Prop 8 in California. That scumbag will lose though, it will make news, and he will lose many friends as well. It’s a lose, lose situation for “The Idiot” -his new nickname in my book.

      • 35. Ronnie  |  June 16, 2010 at 2:03 pm

        ya motha

      • 36. Richard A. Walter (soon to be Walter-Jernigan)  |  June 16, 2010 at 2:14 pm

        Actually the ones who are evil are the ones who think that there is only one form of love and devotion, that there is only one shape to permanent commitment, those who are against full equality for all people, including their own children. And when NARTH, the FRC, and the University of South Carolina all disown Dr. George Rekers for being living proof that “reparative therapy” is nothing more than a crock and a quackery, then the ones who still hold to that belief should begin to re-examine their consciences and find out what in themselves they are so afraid of that they have to oppress their fellow human being and deny them their full civil rights. And by the way, is this “Team George,” “Team Kay Moore,” or “Team Melostit” posting today?

      • 37. Bryan  |  June 16, 2010 at 3:26 pm

        It’s funny you should say that. @sapphocrat– it sounds like you and I were expecting the same thing: dementors juxtaposed against Orff’s Carmina Burana. And with tombstones, too, for flair.

  • 38. Pro-Prop 8 Troll  |  June 17, 2010 at 12:35 pm

    skip ahead to 3:25 – NOM on the steps of the courthouse.

    • 39. Kathleen  |  June 17, 2010 at 1:42 pm

      Not sure where 3:25 is. But if skipping to it will keep NOM on the steps of the courthouse and out of our lives, I’m sure we could put together a team to take turns. I’ll go first. (raises hand).

  • 40. Pro-Prop 8 Troll  |  June 18, 2010 at 10:41 am


    We are in the midst of a showdown over the legal definition of marriage. Though some state courts have interfered, the battle is mainly being fought in referenda around the country, where “same-sex marriage” has uniformly been rejected, and in legislatures, where some states have adopted it. It’s a raucous battle, but democracy is working.

    Now the fight may head to the U.S. Supreme Court. Following California’s Proposition 8, which restored the historic definition of marriage in that state as the union of husband and wife, a federal lawsuit has been filed to invalidate traditional marriage laws.

    It would be disastrous for the justices to do so. They would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to their personal lights.

    Even many supporters of legal abortion now consider Roe a mistake. Lacking any basis in the text, logic or original understanding of the Constitution, the decision became a symbol of the judicial usurpation of authority vested in the people and their representatives. It sent the message that judges need not be impartial umpires—as both John Roberts and Sonia Sotomayor say they should be—but that judges can impose their policy preferences under the pretext of enforcing constitutional guarantees.

    By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Abortion, which the Court purported to settle in 1973, remains the most unsettled issue in American politics—and the most unsettling. Another Roe would deepen the culture war and prolong it indefinitely.

    View Full Image

    David Klein
    Some insist that the Supreme Court must invalidate traditional marriage laws because “rights” are at stake. But as in Roe, they are forced to peddle a strained and contentious reading of the Constitution—one whose dubiousness would undermine any ruling’s legitimacy.

    Lawyers challenging traditional marriage laws liken their cause to Loving v. Virginia (which invalidated laws against interracial marriages), insinuating that conjugal-marriage supporters are bigots. This is ludicrous and offensive, and no one should hesitate to say so.

    The definition of marriage was not at stake in Loving. Everyone agreed that interracial marriages were marriages. Racists just wanted to ban them as part of the evil regime of white supremacy that the equal protection clause was designed to destroy.

    Opponents of racist laws in Loving did not question the idea, deeply embodied in our law and its shaping philosophical tradition, of marriage as a union that takes its distinctive character from being founded, unlike other friendships, on bodily unity of the kind that sometimes generates new life. This unity is why marriage, in our legal tradition, is consummated only by acts that are generative in kind. Such acts unite husband and wife at the most fundamental level and thus legally consummate marriage whether or not they are generative in effect, and even when conception is not sought.

    Of course, marital intercourse often does produce babies, and marriage is the form of relationship that is uniquely apt for childrearing (which is why, unlike baptisms and bar mitzvahs, it is a matter of vital public concern). But as a comprehensive sharing of life—an emotional and biological union—marriage has value in itself and not merely as a means to procreation. This explains why our law has historically permitted annulment of marriage for non-consummation, but not for infertility; and why acts of sodomy, even between legally wed spouses, have never been recognized as consummating marriages.

    Only this understanding makes sense of all the norms—annulability for non-consummation, the pledge of permanence, monogamy, sexual exclusivity—that shape marriage as we know it and that our law reflects. And only this view can explain why the state should regulate marriage (as opposed to ordinary friendships) at all—to make it more likely that, wherever possible, children are reared in the context of the bond between the parents whose sexual union gave them life.

    If marriage is redefined, its connection to organic bodily union—and thus to procreation—will be undermined. It will increasingly be understood as an emotional union for the sake of adult satisfaction that is served by mutually agreeable sexual play. But there is no reason that primarily emotional unions like friendships should be permanent, exclusive, limited to two, or legally regulated at all. Thus, there will remain no principled basis for upholding marital norms like monogamy.

    A veneer of sentiment may prevent these norms from collapsing—but only temporarily. The marriage culture, already wounded by widespread divorce, nonmarital cohabitation and out-of-wedlock childbearing will fare no better than it has in those European societies that were in the vanguard of sexual “enlightenment.” And the primary victims of a weakened marriage culture are always children and those in the poorest, most vulnerable sectors of society.

    Candid and clear-thinking advocates of redefining marriage recognize that doing so entails abandoning norms such as monogamy. In a 2006 statement entitled “Beyond Same-Sex Marriage,” over 300 lesbian, gay, and allied activists, educators, lawyers, and community organizers—including Gloria Steinem, Barbara Ehrenreich, and prominent Yale, Columbia and Georgetown professors—call for legally recognizing multiple sex partner (“polyamorous”) relationships. Their logic is unassailable once the historic definition of marriage is overthrown.

    Is this a red herring? This week’s Newsweek reports more than 500,000 polyamorous households in the U.S.

    So, before judging whether traditional marriage laws should be junked, we must decide what marriage is. It is this crucial and logically prior question that some want to shuffle off stage.

    Because marriage has already been deeply wounded, some say that redefining it will do no additional harm. I disagree. We should strengthen, not redefine, marriage. But whatever one’s view, surely it is the people, not the courts, who should debate and decide. For reasons of both principle and prudence, the issue should be settled by democratic means, not by what Justice Byron White, in his dissent in Roe, called an “act of raw judicial power.”

  • 41. Ronnie  |  June 18, 2010 at 10:50 am

    Is anybody reading this batshit biased trash?….I guess the little infantile nazi troll doesn’t know how to post a link so people don’t have to be bothered by its infantile bull shit.


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