VIDEOS/PHOTOS: AFER “heroes” Olson, Boies, Griffin, plaintiffs celebrate in West Hollywood on Decision Day

August 6, 2010 at 7:00 am 84 comments

(Karen Ocamb posted another amazing example of her first-hand reporting on the equality movement last night on her LGBTPOV blog. It’s a treasure trove of sights and sounds from the Day of Decision, including several vignettes from the American Foundation for Equal Rights celebration in Los Angeles on Wednesday night. With permission, she has allowed us to cross-post it here for your enjoyment. Hard to believe it’s been less than 48 hours since Judge Walker’s historic ruling… — Eden James)

By Karen Ocamb

Judge Vaughn WalkerThe court issued an advanced warning that U.S. District Court Judge Vaughn Walker’s Prop 8 decision in the Perry v Schwarzenegger case would be posted on the court’s website sometime between 1:00pm-3:00pm on Wednesday. Normally chatty political listservs fell silent as LGBT people anxiously waited to rejoice or fume as the minutes sulked into the one o’clock hour. Panic set in as the link the court’s website refused to register. From Molly McKay’s Marriage Equality USA group outside the San Francisco Courthouse to cubicals at Yahoo in the San Fernando Valley, gays and pro-gay-straights alike were holding their breath. Even though the consensus after closing arguments was that Walker would rule Prop 8 unconstitutional – you just never know until you know. And no one wanted to be too optimistic, only to suffer another heartbreak.

One o’clock came and went. Now the only thing that mattered was that incoming Text. Around 1:27 Bil Browning from The Bilerico Project posted on a political listserv that about 11 minutes earlier New York Magazine had posted on their website: “Judge Vaughn Walker Hands Victory to Proposition 8 Opponents.” It was a rumor. People were afraid to believe it. Except the report had the exact number of pages in the decision. By 1:45 CNN confirmed the rumor. Walker overturned Prop 8! There were brief screams of excitement then the mad scramble was on to get the actual decision.

About 35 minutes later, Chad Griffin, founder of the American Foundation for Equal Rights, the group that brought the constitutional challenge, was at the Bentley Reserve in San Francisco in front of a patriotic backdrop of American flags. CNN went to him live.

The cameras cut away as the plaintiffs spoke but came back for lead attorney, Ted Olson.

Olson bemoaned the fact that cameras were not allowed to broadcast what happened in the courtroom so real people could see real people talk about their love for each other and how they were harmed by Prop 8.

(NOTE FROM EDEN: Olson’s quote: “We felt from the beginning that it was unfortunate that every American could not have seen this trial, seen the experts talk about the value of marriage, the history of discrimination, the value of equality, and all of the things that this case involves, including love and commitment and respect and decency and honor.”)

Frank and Jim Reifsnyder-Smith with Kaylee and MiloAfter the news conference in San Francisco, the whole team flew to L.A. for a 6:00p.m. event in West Hollywood Park. LGBT activists mingled with same sex couples, some with families such as Frank and Jim Reifsnyer-Smith with Kaylee, 3, and Milo, 3. They were married the first day marriage was legal in California, June 17, 2008. Frank said he thought the ruling was “fantastic.” Jim said he was surprised that he was so excited, since they are married and “nothing is happening with us.” Nonetheless, Jim described the excitement as he was sitting in his Yahoo cubicle and he got a Text message at the same time as several people screamed with delight in their cubicles. He then got a call from his husband as his boss came over to tap on his window, excitedly waving a piece of paper. The decision touched so many more than it directly impacted.

Eric Garcetti, President of the LA City Council, said something similar. Hanging out with his close friend Marc Solomon, Marriage Director for Equality California, Garcetti told me:

Eric Garcetti and Marc Solomon“Personally, I’m ecstatic. Professionally, I think that this was the right and just ruling. I think it is such a powerfully written ruling – that somebody down the line has to undo facts, has to prove for the first time, not that sexuality might be fundamental but that they have to prove that it isn’t. They have to show a rational basis for why all people who get married don’t have children. And by setting these thresholds, I think this is one of the strongest decisions this judge could put out.

So I know we’ve got a long road but people forget to celebrate and I’m here to celebrate because even if there’s going to be two or three more hurdles to go, it’s important for those of us who believe in this from the beginning to actually enjoy ourselves tonight and just celebrate this amazing, amazing piece of history.”

Director Rob Reiner felt the same way. Reiner, who is on the board of AFER, worked closely with Griffin on the California initiative that created First 5 California, the state agency for childen under five, for which plaintiff Kris Perry is executive director. Asked by a local reporter about the ruling’s impact on morality, Reiner said:

“It’s about equality. It’s about making sure that every citizen in this country has the same opportunities as everybody else. There should never be any class of citizen that’s thought to be less.”

Rob Reiner and LanceDustin Lance Black had his own funny story about morality, telling me:

“I got the phone call from Chad Griffin late last night – I was on the East Coast. He said get your butt out here – the decision is coming down. So I booked a ticket and I walk on the airplane and who do I see – [Traditional Values Coalition head] Lou Sheldon sitting right next to me.

So I sat down and I thought: what would I do? What would I most want out of this situation? He didn’t recognize me – how about if I just pick his brain for five and half hours. And that’s what I did. I never denied who I was. I never said I was straight. He just rattled on and on and on. Mostly I learned that his views about gay people are incredibly outdated. I think his quote was, “The real problem is that homosexuals are shoving their lifestyle down religion’s throat.’ Which sounded awfully graphic coming from a reverend. I thought that’s a really outdated notion.

I said to him, ‘Don’t you think there’s a bigger problem for religion – if that’s what you’re interested in – that there are less and less people going to church now than in the past? And he said, ‘Oh no, No. That’s not a real problem.’ He was in denial of a lot of other problems and very, very focused on this gay issue. I think he’s a politician. He sees political gain in making this an issue. And it became very clear that he’s entrenched in a very outdated, black and white conservative view. My sense of him?

This might get me in trouble – but other than his view of me and our people – he was a kind of kind, old man who loves his wife. He’s a human being as well, you know. I just think he needs to learn a lot about who we really are.

He said several other things that sounded really, really outdated – like Anita Bryant era outdated and I thought – that’s really the problem. We still have so many people out there who don’t really know who gay and lesbian people are – that’s what our job is – starting tomorrow. Tonight’s to celebrate. But tomorrow at AFER we have to start the hard work to educate the rest of the nation.”

Indeed, it was all about celebration – which viewers of CNN and the Rachel Maddow show got to see in the background as Olson and Boies were interviewed live. But the show shifted to the stage as West Hollywood Mayor John Heilman – who was there 25 years ago when WeHo made history as the first city to elect a gay-majority city council – welcomed the crowd of several hundred people to the park:

“Until Prop 8 took away our right for equal marriage, we were so proud here in the city of West Hollywood to issue more than 1,000 marriage licenses and to preside over more than 600 marriages right here in the Park. So it is fitting we’re here tonight to come back and celebrate again.”

Heilman - AntonioHeilman lead the audience in a huge and sustained “thank you” to the American Foundation for Equal Rights “who put together this challenge.”

Heilman then introduced Los Angeles Mayor Antonio Villaraigosa, “the Mayor of our sister city.” Villaraigosa, whose cousin is openly gay Speaker of the California Assembly, John Perez, tossed an off-the-cuff retort: “Tonight, my friend, you and I are sisters.”

The audience went wild. So much for stigma. Villaraigosa said:

“Today, the sun shines a little brighter on the Golden State. Today, a federal judge affirmed what you, and I, and a majority of Californians know to be true: That love doesn’t discriminate, it knows no limits or boundaries, and it is blind to race, religion, color, creed or gender. Today, we recognize that marriage is not a privilege reserved for a select class of citizens, it is a right that belongs to all Californians.”

Villaraigosa was followed onstage by Frank and Jim Reifsnyer-Smith and another same sex couple, to which Olson listened intently.

lance and chad lead onstageAnd then Black and Griffin lead the plaintiffs and the legal team onstage and the park erupted in applause and whistles and overwhelming gratitude.

It was a far cry from the serious, more polite reception the team appeared to have received at the Bentley Reserve.

Black told his Lou Sheldon story – which prompted laughs since Sheldon is based in Orange County – before returning to the theme of helping LGBT people who couldn’t speak for themselves, as he had promised to do from the “big stage” during his Academy Awards acceptance speech after winning an Oscar for writing “Milk.”

“I told the young people out there that they would have equal rights federally, across this great nation of ours. And today we enjoy our first victory. Today is an incredible day.”

Black then introduced his friend and his “hero,” Chad Griffin. Though Griffin delivered essentially the same remarks as in San Francisco – with as much poignancy – he was interrupted often with applause, especially after he said the two lead attorneys ”driven by that principle of justice. Ted and David, you are our heroes tonight.”

Chad on stageSpeaking to those watching on television, he said, punctuated by applause:

“You realize that everyone has a stake in today’s ruling because any denial of freedom to anyone undermines the principles upon which this country was founded and undermines freedom for everyone, everywhere.


Today’s decision affirms that under the constitution, a government of the people, by the people and for the people cannot discriminate against the people.


And so today we begin the process of saying to the millions of people who are made to feel ostracized, besieged, bullied, and ashamed of how God made them – be who you are. Love who you love. And marry who you wish to marry.

As gay and straight citizens take to the streets in celebration, here in Los Angeles and San Francisco, Denver, Dallas, and New York – I know there are millions who must celebrate quietly in places across America. Places where merely taking the hand of a loved one still feels like a revolutionary act. To those quiet millions – to the teenager in Bakersfield who aches for acceptance, to the college student in Salt Lake who seeks liberty and equality, and to the couple in Topeka who longs to openly share their commitment and their love – this victory is for you.”

The plaintiffs also spoke briefly, clearly moved by the reception.

Kris Perry, who grew up in Bakersfield, said, “With this decision, the system worked. The courts are supposed to protect our constitutional rights – and today, they did….I want to marry the person I love.”

Kris Perry

Her partner Sandy Stier noted that they have kids old enough to get legally married. The decision means that “tomorrow will be a brighter day for all of us.”

Sandy Stier

Jeff Zarrillo noted that he has been to West Hollywood Park and “I’m so proud to make history with you.” He talked about all the new friends he’s made via email and Facebook since the trial began and said, “We feel like we’re fighting for them, as well.”

Jeff Zarrillo

Paul Katami talked about the support he and Jeff have received from friends and family and community. “We need that support because it’s going to be a long road to the Supreme Court.”

Paul Katani 1

AFER intends to give the couples more visibility. Griffin told Variety Managing Editor Ted Johnson and I before the event:

Ted Johnson and Chad Griffin“We’ve done everything we could in trial to put on the best case possible. And our opposition certainly put on a case – but in many ways, their witnesses helped our side more than it helped their side. So we were cautiously optimistic. But there’s no doubt this is an incredibly thoughtful and thorough ruling.

I don’t think there will be a backlash. What we will continue to do, as we have done over this last year, is show the human side of this story. We have the best lawyers one could assemble to represent us in court as this case is appealed. But we also have plaintiffs and they represent real live people across this country.”

But for all the tears and applause and cheers for the plaintiffs and the AFER team – this crowd wanted to hear from Ted Olson and David Boies. And they wanted to talk to the crowd. One would not think it possible in an open park in West Hollywood – but at times you could almost hear a pin drop.

Ted Olson:

David Boies:

Afterwards, recently out country singer Chely Wright – who is performing and signing books at Borders in Hollywood (Sunset and Vine) tonight at 7:00 – told me:

Chely close up“This is a big deal. Everyone was looking to California today to see what happened. This is setting the tone nationwide. My phone is blowing out. My friends in New York and Chicago and Nashville are saying, are people dancing in the streets? And they are. This is a big deal and I have to tell you – being on the stage here, looking out at the crowd, I cried. Of course it’s historic to me being in West Hollywood today and California today as this is happening. I can’t believe I’m in California when this is happening. This is such a big deal.”

Oscar-winning producer Bruce Cohen, who is on the AFER board, also thinks it’s a big deal and is especially appreciative of the plaintiffs and the legal team:

“It’s hard to put into words – but hearing Ted Olson and David Boies addressing the crowd here in West Hollywood Park – personally, I could listen to them forever. But hearing David deconstruct the case – take three weeks of testimony and just distill it down into an explanation that’s very technical and precise and legal – but is so moving and so exciting. I mean part of what they were saying – and what we want to do – is get people more involved. If you thought you’d never read a legal opinion in your life – read this because it is so fascinating and educational and exciting. And it’s kind of like a sports event – it’s like the Super Bowl – and we won! And when you read it you’re like, ‘Oh – this isn’t boring, dry legalese. This is our lives. This is America and what it stands for.’”

Bruce Cohen laughingI also talked to Cohen about the WeHo liberal crowd’s reaction to conservative Ted Olson- how they loved Ted Olson:

“Ted Olson is lovable I have fallen in love with him as a person, as a friend. He is an absolutely magnificent human being. He is more committed to this issue and determined to win this case then you can ever even imagine. And that, for the gay community, is the best news you have ever heard. Because he knows the Supreme Court – and he hates to lose.”

I asked Cohen about the money situation since some people think that Hollywood A-Gays are funding the journey. Cohen said candidly that they now need help – which is also a way to get engaged and invested in the effort:

“Initially, we went to a very small group of donors and they gave big checks and we at first thought it might cover us all the way to the Supreme Court. But what we were not counting on was the full evidentiary trial that Judge Walker called for. And thank God he did because now we all realize that was the best thing that could have possibly happened.

So we’re now in a situation where we have to go to the Court of Appeals and eventually to the Supreme Court and we need more money. We are broadening out – rather than just going to a few small donors. Now that everyone knows about the case – they know who we are and they know Ted Olson, they know David Boies, they know what we’re about – we’re asking individuals to contribute. If you believe in this – if you believe in what we’re doing, then be a part of it and help us get to the Supreme Court.”

Please check out Mark Hefflinger’s wonderful photos of the event.


Entry filed under: Trial analysis, Videos.

Impeach Judge Walker? First Maggie Gallagher, now Debra Saunders: Another shocking display of ignorance in the San Francisco Chronicle

84 Comments Add your own

  • 1. ĶĭŗîļĺęΧҲΪ  |  August 6, 2010 at 7:13 am

    WOW, so many letters, pictures and videos!
    Not a complaint! Thank you! :)

    • 2. Ann S.  |  August 6, 2010 at 7:43 am


      • 3. Dave in ME  |  August 6, 2010 at 8:16 am

        Please, sir, may I have more email?


      • 4. JonT  |  August 6, 2010 at 1:42 pm


  • 5. Sagesse  |  August 6, 2010 at 7:20 am

    A treasure trove. Looking forward to reading and viewing. Along with the other 114 still unread in my inbox.


    • 6. Alan E.  |  August 6, 2010 at 7:41 am

      I have hundreds to go through still!

  • 7. Jeremy  |  August 6, 2010 at 7:24 am

    Off topic: it’s been discovered that Target donated over $3000 to yes on 8. Things looking worse & worse for them. Makes me feel dirty wearing the clothes bought there (pre-boycott).

    <3 jeremy

    • 8. Dave in ME  |  August 6, 2010 at 8:37 am

      Lately it seems as if Target is simply a Chinese outlet. I have stopped buying Chinese made items from them, which means I’ve practically stopped shopping there anyway…


    • 9. l8r_g8r  |  August 6, 2010 at 10:37 am

      Citation please?

  • 12. Sarah  |  August 6, 2010 at 7:38 am


  • 13. Alan E.  |  August 6, 2010 at 7:39 am

    Last night, I got to go see David Boies talk at the Commonwealth Club of San Francisco (The audio of it is here

    When I first arrived, I was looking for an open seat. I found one and asked the person sitting next to it if it was open (many chairs had coats spread across to save them). To my surprise, the person I asked about the seat turned out to be Dpeck! We got to chat for a bit before the even started.

    As soon as Mr. Boies walked in, the crowd gave a standing ovation. At the very end of his speech, Mr. Boies started to tear up, and that just got mine going, too. There was a Q&A session, but we had to submit our questions ahead of time. The moderator grouped the questions of similar type and asked them of Mr. Boies in lumps. This was fantastic because you didn’t get the same question over again, you don’t feel bad if your specific question doesn’t get asked, and the timing ans pace of the session was impeccable.

    As Mr. Boies was walking out, I had to rudely interrupt a conversation I was in so I could shake his hand and thank him. I made my way downstairs, said goodbye to Dpeck, but decided to go to the bathroom before I started my trek home (having to pee while on BART sucks). Mr. Boies was just starting a press conference, but most everyone who was at his talk earlier had left. I noticed that no one was checking anything at the room, so I just walked in and started taking pictures with my phone and recorded a couple minutes.

    Before he could leave, I stopped him to get him to sign my copy of the decision. I also had one more request, something I had been thinking about doing for months: I wanted to give him a great big hug. Of course he obliged. I walked out of there with a huge grin on my face and tears streaming. This was one of the best days of my life!

    I’ll get a picture of my signed copy to post soon. You should definitely listen to the audio (it was shown on Channel 2 as well, last night, so there may be video somewhere).

    • 14. Franck  |  August 6, 2010 at 7:53 am

      Aw, the audio is in streaming format. I can’t use that at work — anyone has links to a downloadable, listen-at-home version? The way DPeck and Alan wrote it, this speech is a must-hear for me.

      – Franck P. Rabeson
      Days spent apart from my fiancé because of DOMA: 1141 days, as of today.

      • 15. Ann S.  |  August 6, 2010 at 8:10 am

        You can find Commonwealth Club programs in the iTunes store if you have iTunes. This one hasn’t been posted there yet, but I imagine it will be.

      • 16. Ann S.  |  August 6, 2010 at 8:13 am

        They also have a channel on YouTube you can subscribe to — maybe this will be shown there, too:

      • 17. Franck  |  August 6, 2010 at 8:17 am

        Thanks Ann. Sadly the iTunes Store doesn’t work around here (third world country!) and Youtube is blocked at work… I’ll probably have to ask someone else to download it in my stead. It’ll take time, but I bet it’ll be worth it.

        – Franck P. Rabeson
        Days spent apart from my fiancé because of DOMA: 1141 days, as of today.

      • 18. Andrew  |  August 6, 2010 at 8:25 am

        It is a Real Player Media file, but it is the file itself and not the stream link.

      • 19. Franck  |  August 6, 2010 at 8:29 am

        Gee, thanks! I can’t wait to get home now, and listening to this should be the perfect way to begin my week-end (almost 6:30pm here right now, I should have left work 30 mins ago…)

        – Franck P. Rabeson
        Days spent apart from my fiancé because of DOMA: 1141 days, as of today.

      • 20. Ann S.  |  August 6, 2010 at 8:54 am

        @Andrew, how do I download the file you were so kind as to post?


    • 21. PamC  |  August 6, 2010 at 8:01 am

      Very jealous, AND very proud of you! Thanks for posting this–wishing I could have been there! Do please let us know when/if/where the video may be.

    • 22. Alan E.  |  August 6, 2010 at 11:34 am

      Here are some of my pictures from last night!

  • 25. Kathleen  |  August 6, 2010 at 8:04 am

    Nice report.

  • 27. Ann S.  |  August 6, 2010 at 8:29 am


    The “Best Worst” Prop 8 reactions

  • 28. Dave in ME  |  August 6, 2010 at 8:39 am

    Man, I REALLY wish that I were back in my hometown now. I’d love to be there in WeHo celebrating with the rest of you!!!


  • 29. Richard A. Walter (soon to be Walter-Jernigan)  |  August 6, 2010 at 8:40 am

    And let’s not forget all of the unsung heroes throughout the years leading up to this moment who have made this possible, beginning with our brothers and sisters at Stonewall who on 27 June 1969 said enough is enough and refused to be bullied anymore, all of those who have participated in studies and/or allowed their stories to be part of a case history and/or analysis so that reputable, peer-reviewed scientific efforts could go on and refute the previous stereotypes and superstitions about us. These people are also a very big part of today. And yes, I think that Harvey Milk is looking down on us today with an ear to ear grin!

    • 30. Ronnie  |  August 6, 2010 at 8:52 am

      Pink fist in the air…..<3…Ronnie

    • 31. Alan E.  |  August 6, 2010 at 8:53 am

      That’s the exact point on which David Boies started to choke up last night.

    • 32. Straight Grandmother  |  August 6, 2010 at 10:09 am

      Truly we stand on the shoulders of GIANTS. Think of the poor poor GLBT people who have been murdered for the crime of being GLBT. Each one of them, in thieir sacrifice, opened the door a crack wider. Today, today we boldly push the door open wide and walk through. But those who came before us all those activists and sinmple citizen GLBT people who were murdered for no reason at all, each and every one moved the door open a bit. You are so right we shold never forget them, never.

  • 34. Sarah  |  August 6, 2010 at 9:23 am

    This may have been covered under another post, but I do not have the time to go through all the comments that I forgot to subscribe to! I read through the transcript yesterday, pulled out some quotes that intrigued me, and have been mulling over some things since:

    Why in the world, when this was their only chance to put forth witnesses and new evidence, did the Prop 8 proponents do such a bad job of it?! I know they withdrew most of their expert witnesses, but then went on despite the fact that the 3 who remained eventually discredited themselves. They changed their arguments between the time of the vote and the trial. They danced around the opposing evidence, and even had the gaul to claim that they didn’t need evidence! What were they thinking?? Who was in charge of this disaster? Does anybody with legal expertise have a response to this? It has baffled me!

    Secondly, another legal question: Since the California AG agreed that Prop 8 was unconstitutional, why would anybody think they could defend it? Or maybe they thought somebody had to, or their whole foundation would be ruined?

    And finally (for now at least): Dealing with the issues of suspect class and strict scrutiny:

    “The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review” (p 122)”

    My question is, does this mean that in the future issues that deal with GLBT people will need to use strict scrutiny? And, did he just say that GLBT people are a suspect class?? If so, isn’t this also a major bonus for us?

    • 35. Andrew  |  August 6, 2010 at 9:30 am

      Well, seeing as this is the “Law” part of the decision as opposed to the “Factual” part of the decision, .The strict scrutiny vs. intermediate scrutiny vs. rational basis is not necessarily the basis for all future trials and proceedings. Despite this, many of the best pieces of factual evidence *must* be considered by any appeal courts and are likely to be used in other trials.

      More information on this can be found at

      • 36. Sarah  |  August 6, 2010 at 1:27 pm

        Ahh, yes, I forgot about that difference between the findings of law vs. fact. Thanks for reminding me.

    • 37. Kathleen  |  August 6, 2010 at 12:34 pm

      A point of correction – the defense only put on two witness – Miller and Blankenhorn. You might be thinking of Tam. He was witness for the Plaintiffs.

      Only those who were part of the decision making team for the defense really know what transpired, but I’ve been saying all along that Cooper is neither stupid nor incompetent. I think he put forth the best evidence and tried to get the most compelling witnesses he could find. He knew that the kinds of studies NARTH publishes wouldn’t withstand serious expert challenge. His witnesses all wound up, either in deposition or under cross-examination, doing as much to support the plaintiffs as the defense.

      The problem wasn’t a matter of incompetent lawyering; it was that there was no real evidence to support their position. We scoff at the ‘procreation’ line of defense, but this has been successfully used in courts and legislatures in the past to justify these kinds of restrictions. I don’t think there has ever before been a case before that brought such clear, thorough, evidentiary challenges to these rationales into a court of law.

      The AG’s opinion that the Proposition is unconstitutional doesn’t constitute a judicial finding of unconstitutionality. Proponents could legitimately disagree with that opinion and bring the matter to the courts.

      As to your last question. I agree that if this case stands for the proposition that G&Ls are a suspect class, that’s a major bonus. I’ve seen different opinions expressed about this point by different lawyers with expertise in constitutional law. Personally, I don’t read it as a holding in the case (don’t mean to imply I’m an expert – I’m not). Some people I’ve talked to agree with that reading, others disagree and think that this IS a holding in the case. But even if it is a holding, it is a matter of law, not fact, and thus will be up for review on appeal. So we’ll have to see what happens.

      • 38. Sarah  |  August 6, 2010 at 1:36 pm

        Oh, Tam. What an interesting witness… I think I was putting him as one of their witnesses. I looked at his website yesterday, and just couldn’t force myself to go on, what with all the apocalyptic headings! Same ol’, same ol’ as far as the opposition goes.

        I guess my whole issue with the proponents’ case is that I am astounded that they could think they had a chance to win with the case that was presented. Granted, I am biased towards the equality side, but I would think they would have wanted a more powerful presentation. When you’re fighting justice, though, I suppose you have to go in swinging, regardless of the power behind it.

        As to the strict scrutiny issue, I, too, did not initially see it as a holding the in case, but was not sure. Just seems like Walker saw it that way and that is how he proceeded with his line of justification.

        I have to remember the whole law versus fact thing…

        Thanks for your help, both of you! Maybe I’ll get some more input on that last part, too.

      • 39. JonT  |  August 6, 2010 at 2:13 pm

        The problem wasn’t a matter of incompetent lawyering; it was that there was no real evidence to support their position.

        I agree completely. When it came down to it, their defense basically amounted to outdated stereotypes and opinion with no basis in reality.

        Yay. :)

      • 40. Kathleen  |  August 6, 2010 at 2:58 pm

        As to the strict scrutiny issue, I, too, did not initially see it as a holding the in case, but was not sure. Just seems like Walker saw it that way and that is how he proceeded with his line of justification.

        Some of the confusion might have been that part of the decision aplied strict scrutiny, while part of it did not.

        There are two reasons that a court applies the strict scrutiny standard of review (1) the law impacts a suspect class, or (2) the law impacts a fundamental right.

        Walker struck down Prop 8 for two reasons
        1. Due Process – under this analysis, he determined that Marriage is a fundamental right. As such, his legal analysis employed strict scrutiny.
        2. Equal Protection – it is in this context that a court looks at whether the group of people being impacted are a suspect (strict scrutiny would apply) or quasi-suspect (intermediate scrutiny would apply) class. Although Walker used language saying G&Ls should be a suspect class, his analysis was all based on rational review – that is, as though he was looking at a law which impacted a group of people who are NOT a suspect class.

        Hope that makes it clearer.

      • 41. Sagesse  |  August 6, 2010 at 4:19 pm


        I’m not going to get this quite right, but here goes. In Walker’s view, the evidence provided by the Plaintiffs is sufficient to prove LGBT are a suspect class, so he said so. However, rational basis is more likely to survive the appeal process, and he didn’t ‘need’ strict scrutiny to reach his conclusions, so he based the conclusions on rational basis. The evidence for suspect class is ‘superfluous’ but in Walker’s opinion it’s there.

        I don’t suppose it’s at all likely, but one of the appeals courts (9th circuit or SCOTUS) could conceivably rule more broadly than Walker did. Or, some future case could take the groundwork that has been laid here and use it to establish suspect class at some point in the future.

        Is this an example of the inventiveness that Walker is supposedly known for?

      • 42. Kathleen  |  August 6, 2010 at 4:49 pm

        I think Walker is bound by precedent from higher courts, none of which have said G&Ls are a suspect class, and have all held that rational basis review applies to laws impacting G&Ls. However, as I’ve discussed before, the ‘rational basis’ that seems to be applied in cases like Lawrence and Roemer are not nearly as lax as traditional rational basis.

      • 43. Ann S.  |  August 6, 2010 at 4:52 pm

        @Kathleen, I think the recent Christian Legal Society case came close to saying suspect class without quite saying it.

      • 44. Sagesse  |  August 6, 2010 at 5:53 pm

        @Kathleen and Ann S

        No precedent, but the evidence assembled here has never been presented (at least not as completely) before.

      • 45. Kathleen  |  August 6, 2010 at 6:16 pm

        I’ll have to go back and read Christian Legal Society again. I just skimmed it and know I missed a LOT.

      • 46. Ann S.  |  August 6, 2010 at 6:23 pm

        I admit to not yet having read the actual CLS case, just this article (and other similar ones):

      • 47. Kathleen  |  August 6, 2010 at 6:28 pm

        I always took that to go toward the question of one of the elements needed to establish suspect classification, not so much addressing the overall question.

      • 48. Sagesse  |  August 6, 2010 at 7:16 pm

        @Kathleen and Ann S

        Here’s the punchline.

        Christian Legal Society v Hastings

        CLS contends that it does not exclude individuals because of sexual orientation, but rather “on the basis of a conjunction of conduct and the belief that the conduct is not wrong.” …. Our decisions have declined to distinguish between status and conduct in this context. See Lawrence v. Texas , 539 U. S. 558, 575 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” (emphasis added)); id., at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”)

  • 49. Alan E.  |  August 6, 2010 at 9:29 am

    I strongly recommend everyone listen to (or watch when it is available) the Commonwealth Club talk with David Boies. He answers so many of the questions that people have plus give his opinion on the outlook.

  • 50. Bolt  |  August 6, 2010 at 9:43 am

    Good morning everyone. If the “Yes on 8” folks are defending proposition 8, why is Imperial County jockeying for the position?

    • 51. Kathleen  |  August 6, 2010 at 12:48 pm

      Bolt, I haven’t read Imperial County’s Motion to Intervene, so I don’t know what their rationale was. You can read it here:

      • 52. Ann S.  |  August 6, 2010 at 1:13 pm

        I was just listening to KQED’s Forum program from the day after the decision, and a law professor was guessing that Imperial County’s participation may be necessary for the case to go forward — a Supreme Court case (sorry, didn’t catch which one) dismissed an appeal of an unrelated case on other grounds, but also questioned whether any of the parties had standing since none of the parties responsible for enforcing the law were defending the law.

        The program is here:

      • 53. Kathleen  |  August 6, 2010 at 2:05 pm

        Thanks, Ann. I’m listening to it now.

      • 54. Ann S.  |  August 6, 2010 at 2:13 pm

        @Kathleen, I am going to try to listen to that part again when I get a chance. Supposed to be working right now, haha.

  • 55. Jim  |  August 6, 2010 at 10:25 am

    I got a tweet somewhere along the line about the video that was taken during the trial being released to the parties. Anybody know what all that encompasses and whether those recordings could ever be made public?

    • 56. Eden James  |  August 6, 2010 at 11:20 am

      A few days ago, I posted a link to the evidence that the court released, including videos, on the P8TT front page.

      It’s in this thread:

      Eden w/ the Courage Campaign Institute

      • 57. Tony Douglass in CA  |  August 6, 2010 at 11:35 am

        it looks like those are just the videos entered into evidence, not the trial video.

      • 58. Kathleen  |  August 6, 2010 at 12:43 pm

        That’s correct, Tony. The trial videos are still under protective order and can’t be made public

    • 59. Kathleen  |  August 6, 2010 at 1:04 pm

      Jim, The entire trial was recorded.

      As to parties having copies, prior to closing arguments, Walker gave all parties the option to request of the recordings for use in their closing arguments. Both Plaintiffs and Plaintiff-Intervenors (City/County of S.F.) requested and received copies.

      Proponents got their nickers all in a twist over the fact that these copies are still out there and filed a motion, asking that the Court order the return of the videos. Plaintiffs answered, saying the might continue to need them if additional proceedings were required and/or on appeal, and noted that they remain under protective order. While Walker hasn’t issued a separate order on the matter, he did address it in his decision. (pp 4-5)

      The trial proceedings were recorded and used by the court in preparing the findings of fact and conclusions of law; the clerk is now DIRECTED to file the trial recording under seal as part of the record. The parties may retain their copies of the trial recording pursuant to the terms of the protective order herein… . Proponents’ motion to order the copies’ return … is accordingly DENIED

      While they remain under protective order at present, I am hopeful that someday we will be able to see them.

  • 60. FreeAtLast  |  August 6, 2010 at 10:32 am

    NOM comes to Atlanta this weekend, and the Prop8 decision is already turning into a political billy club in the GA Republican primary race between Karen Handel (who has expressed some modest support for gay rights in the past–very modest) and Nathan Deal (who, he proudly admits, has not). Here’s the most recent Deal ad attaching Handel:

    Protect our children from such ominous threats! Where have we heard that before?

    Congrats to everyone on the great victory this week! Hopefully, there will be many more to come.

  • 61. Kevin  |  August 6, 2010 at 10:36 am

    If I understood correctly briefs on the potential stay are due today no? Has anybody seen these?

    • 62. Bolt  |  August 6, 2010 at 2:41 pm

      They’re due at 5 this afternoon.

    • 63. Kathleen  |  August 6, 2010 at 3:09 pm

      Nothing placed on the docket yet.

      • 64. Kathleen  |  August 6, 2010 at 3:11 pm

        That should read: nothing placed on the docket sheet yet.

  • 65. Sagesse  |  August 6, 2010 at 10:44 am

    There are no words….

    Don’t You Want to Go to a Gay Rally Headlining Ann Coulter?

    • 66. Ann S.  |  August 6, 2010 at 10:58 am

      That is the funniest thing I have seen in a long, long time.

      • 67. Sagesse  |  August 6, 2010 at 11:04 am

        i expect Brian Leubitz is doing a happy dance around his office as we ‘speak’. This one’s for you, Brian.

    • 68. Richard A. Walter (soon to be Walter-Jernigan)  |  August 6, 2010 at 12:56 pm

      These people are supposed to be LGBTQQI’s and the best they can come up with as the headliner for their event is Anne Coulter? The woman whose tagline is “If I haven’t offended you yet, just stick around and I promise I will!”?
      If they wanted to find a republican to headline their event, they could have asked Cindy or Meghan McCain! And I am quite sure they would have attracted a much larger crowd and had a lot more fun!

    • 69. Kathleen  |  August 6, 2010 at 1:54 pm


    • 70. JonT  |  August 6, 2010 at 2:19 pm

      Thats… astonishing haha.

      Annie Coulter hates teh gays. I’ve heard some of the vile things from her mouth. I can’t actually believe she would have anything to do with anything even remotely gay.

      Unless she’s just going to bash… huh.

  • 71. Tony Douglass in CA  |  August 6, 2010 at 11:30 am

    I thought I saw something in the ruling that said something about the video record of the trial being available to anybody who requested it.

    Is this true, or was he just meaning the transcript?

    • 72. Kathleen  |  August 6, 2010 at 1:59 pm

      See my response above.

  • 73. RW  |  August 6, 2010 at 11:33 am

    Hey, any more video, etc. from St. Louis?

  • 74. Straight Grandmother  |  August 6, 2010 at 1:18 pm

    I am surprised this topic has not received more comments. It is really really a great topic, with first person accounts, a lot of video and photos. This is a wonderful wonderful article.

    • 75. Angeleno  |  August 6, 2010 at 8:16 pm

      Agreed. I think the *relative* low comment count is a probably a function of the fact that there is so much good stuff to get through! Which is not a bad thing!

  • 76. Ann S.  |  August 6, 2010 at 2:14 pm

    There is an interesting analysis, and some interesting comments (with a few trolls, of course) in the ABA Journal:

    • 77. Sarah  |  August 6, 2010 at 4:17 pm

      Loved the comments here! It is refreshing to see a group of (likely and mostly) legal people see the merits of the case, and argue it intelligently. (Yes, except for the obvious trolls!)

    • 78. Alex O'Cady  |  August 7, 2010 at 1:10 am

      Thank you so much for that link, Ann. I loved this comment so much that I couldn’t sleep until I’d shared it with y’all, ’cause I haven’t heard it before.

      Comment #82, ipthereforeiam:

      “I love how a lot of the pro-Prop 8 supporters were screaming about how a majority of California voters approved Prop 8. The facts speak differently. Of the about 17.3 million people registered to vote in California in 2008, only about 7 million registered CA voters actually voted for Prop 8 while 6.4 million registered CA voters voted against Prop 8, leaving a gap of only about 600,000 votes between the two. This leaves almost 4 million registered CA voters who didn’t vote on Prop 8. On such a hot button issue, it’s not too much of a stretch to say that these 4 million voters were either apathetic or ambivalent about Prop 8 at best. Thus, the majority of registered CA voters clearly did not approve of Prop. 8.”

      This also means the majority of CA voters did not oppose Prop 8, but all that means is it’s a wash. Neither of us can claim “the majority of CA voters” for our own. I don’t know why I never thought of this, but now that it’s been pointed out, it seems like such a glaring hole in their argument that I had to share.

      I’ll forgive you for the lost sleep;)

      • 79. Sagesse  |  August 7, 2010 at 6:13 am

        “Of the about 17.3 million people registered to vote in California in 2008…”

        Interesting. Of the 37 million people in CA, 20 million of them aren’t registered to vote. Hadn’t seen that statistic before. However (and I’m going from memory, so the figures aren’t exact) the voter turnout for the election was 13.7 million, and the total for Prop 8 was 13.6 million, so it would seem that just about everyone who came to the polls cast a vote on Prop 8.

        A voter registration drive would seem to be an important component of a get-out-the-vote effort for November.

  • 80. Sagesse  |  August 6, 2010 at 4:00 pm

    I’m not sure where I’m going with this, so I’m just gonna say it and see if it makes any sense at all.

    The critics of the decision (even the ones who have read it), are going to say that it is one-sided. It seems one-sided because it is, however, not because it is biased. All the evidence referenced in the decision points one way because all the evidence points one way. It’s not as though Walker cherry picked what he agreed with and put it in the decision… after he necessarily discredits Blankenhorn and Miller, there is no argument in support of Prop 8 left to ignore.

    Probably doesn’t matter, since the critics will say excoriate the ruling and its author no matter what. You can’t make the argument look fair and balanced when the defense failed to show up.

    • 81. Sarah  |  August 6, 2010 at 4:16 pm

      I think that is right on target. If I didn’t know better, I’d think all Walker did was look at the plaintiff’s evidence, and ignore that of the defense. Can’t really analyze something that isn’t there.

    • 82. Richard A. Walter (soon to be Walter-Jernigan)  |  August 6, 2010 at 6:44 pm

      You have once again shown why “Sagesse” fits you to a T. And yes, they will still say that Judge Walker cherry-picked the evidence that was referenced, because that is their tactic with the Bible, so they think that EVERYBODY cherry-picks EVERYTHING. Ever notice how those who accuse someone are often guilty of the same behavior. Those who cherry pick at one thing accuse others of cherry picking every time something goes differently than they think it should go.

  • 83. Gregory in Salt Lake City  |  August 7, 2010 at 9:56 am

    David Boise defines the way I see the country of the United States, we are a country of the culture of equality…not based on race, language… Thank you DB!

  • 84. blademaiden  |  August 7, 2010 at 5:47 pm

    hey – I know we’ve got the Lesbians/Boys <3 Boies shirts, but are we ever going to get more Olson & Boies or AFER stuff?? I'd love to get some and show my support!


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