Morning after video/analysis of the 9th Circuit Perry v. Schwarzenegger hearing

December 7, 2010 at 9:35 am 83 comments

By Adam Bink

Good morning after! After looking over the web and my inbox, I’ve got some excellent nuggets to satiate that analysis appetite. The best of what’s around (with apologies to Dave Matthews Band) can be found below.

  • Hour 1 and hour 2 of yesterday’s trial on video:
  • NCLR’s Kate Kendell and her thoughts (h/t Ronnie):
  • Lambda Legal’s Jennifer Pizer and her take (video) can be found here.
  • I’m with Karen O, Nan Hunter’s piece is very interesting. She’s with Georgetown Law and the Williams Institute.
  • I’m not much for reading tea leaves, but this (via SJ Mercury News) to me seemed one of the most poignant and telling moments yesterday, coming from conservative Judge Smith.

Smith, an appointee of former President George W. Bush, also repeatedly challenged Cooper. Smith was particularly troubled by the fact that California has broad protections for same-sex couples under its domestic partnership laws, yet forbids them to marry.

“What is the rational basis then if homosexuals have all the rights heterosexual couples have?” Smith asked. “We’re left with a word: marriage.”

His comments need to be repeated over and over in the post-trial echo chamber.

  • If you can stand it, the Ruth Institute’s Jennifer Roback Morse chats for a few minutes with Ron Prentice, Chairman of
  • Speaking of Jennifer, I’m with Jeremy Hooper, her “analysis” piece on Reinhardt was dumb.
  • Photos from the post-trial press conference on both sides.

What else are you reading?

Entry filed under: 9th Circuit Court of Appeals, Prop 8 trial, Trial analysis.

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83 Comments Add your own

  • 1. Lesbians Love Boies  |  December 7, 2010 at 9:38 am


  • 2. 415kathleenk  |  December 7, 2010 at 9:40 am

    I was one of the few citizens who got into the courtroom yesterday. It was a monumental experience. It was privilege to see our attorneys in action and to meet and thank the plaintiffs. I was also thrilled to meet a lot of PTT8 people. Kathleen, Arisha, Ann- great to talk with you all. Reach me on email at kknowles@ehs.ucsf,.edu. Also- Jacob- law student ACLU intern- if you read this give me a shout. Thanks to all the PTT8 people for their continuing diligent efforts to keep us informed.

    • 3. Ann S.  |  December 7, 2010 at 9:47 am

      Did you introduce yourself as Kathy? Wasn’t that great to be there??

      • 4. Ann S.  |  December 7, 2010 at 9:47 am

        Oops, must click button.

    • 5. Kathleen  |  December 7, 2010 at 9:53 am

      Is this Kathy? It was wonderful to meet and sorry we lost track of each other later.

    • 6. Kathleen  |  December 7, 2010 at 10:03 am

      I, too, would like to keep in touch with Jacob. If you see this, please click on my name and find me on facebook!

  • 7. Judy  |  December 7, 2010 at 9:42 am

    Judge Smith seems to have come up with his own “rational basis”. Several times he mentioned that having the name “marriage” as a means to market procreative couples is a rational basis. Of course this can be knocked down, but he kept saying it, even at the end. I fear he believes it.

    • 8. Ann S.  |  December 7, 2010 at 9:50 am

      I didn’t have the impression he believes it.

      • 9. Joel  |  December 7, 2010 at 9:52 am

        I think he was leaning to subtle sarcasm as well.

        • 10. Kathlene  |  December 7, 2010 at 11:57 am

          I hope your sarcasm detector is accurate. I personally can’t tell.

          • 11. Ann S.  |  December 7, 2010 at 12:25 pm

            I don’t know if it was sarcasm, but it was, I believe, part of framing a hypothetical question. As such, it is not necessarily reflective of his personal beliefs or legal reasoning.

    • 12. Cynthia L.  |  December 7, 2010 at 12:38 pm

      As a Mormon, I was watching Smith extra closely yesterday. My take on him is in line with what Adam says in the post, highlighting this as his key moment:

      “What is the rational basis then if homosexuals have all the rights heterosexual couples have?” Smith asked. “We’re left with a word: marriage.”

      I think it is possible that Smith will be at great pains to demonstrate his objectivity in light of his Mormonness. On the other hand, Mormon or not, being his stripe of conservative, he is simply not going to want to support gay marriage any more than he must.

      So here’s where a possible compromise comes in–he could agree to join the majority and make the decision unanimous (I think safe to say that Reinhardt and Hawkins are going to uphold Walker’s ruling), if he can use his participation in the majority to leverage the ruling in his direction. His direction being to make it clear that the ruling is particular to the facts in California, namely, that the only difference is the word marriage.

      Each side would benefit in this arrangement: From Smith’s view, this would prevent gay marriage from being thrust on, e.g., his home states of Idaho and Utah, just writing of California and other very liberal states as a loss. From the PoV of Reinhardt and Hawkins, this would allow them to send a strong unanimous decision to SCOTUS, and utterly neutralize any possible negative effect that Reinhardt’s reputation with SCOTUS may have (I’ve read that maybe SCOTUS looks askance at stuff from him and that he gets overruled– I don’t know how much of that is conservative hype).

      Anyway, that’s sort of my body language read on Smith, and thinking about what he might be thinking.

      On the other hand, Smith did have particularly nasty scowls anytime someone questioned his assertion that encouraging responsible procreation was a rational basis. So who knows. Maybe he’ll just write a feisty dissent.

      • 13. Kathlene  |  December 8, 2010 at 3:09 am

        That’s extremely disappointing. If that’s true then apparently he can’t separate his personal feelings from his rulings.

  • 14. nightshayde  |  December 7, 2010 at 9:47 am

    I see there’s a different family at the top of the page today. Was it just time for a change, or is the image going to be of a different family every so often?

    I rather like the idea of putting different faces up there on a fairly regular basis — showing that though families may look a little different from one another, every family is valued.

    • 15. Lesbians Love Boies  |  December 7, 2010 at 9:51 am

      Woot – there is. What a wonderful looking family!

      • 16. Gregory in Salt Lake City  |  December 7, 2010 at 10:15 am

        : ) who was the previous family? I always wondered that…would be interesting to know something about the P8TT mascot.

        • 17. Lesbians Love Boies  |  December 7, 2010 at 10:16 am

          I think they were stock art.

          • 18. BK  |  December 7, 2010 at 10:59 am


            Anti-religious bigot stock artists.
            [that can be taken two different ways. ;) ]

    • 19. Joel  |  December 7, 2010 at 9:55 am

      What page? What pic? What family? Am I missing something because I’m accessing on my iPod?

      • 20. Lesbians Love Boies  |  December 7, 2010 at 9:56 am

        The top of this blog ^^ scroll up.

      • 21. JC (1 of the 18,000 in CA)  |  December 7, 2010 at 12:49 pm

        If you’re using the mobile P8TT, you won’t be able to see the family–it’s on the standard web page. (I go back and forth between the 2 versions.)

  • 22. John Culhane  |  December 7, 2010 at 9:49 am

    I’m the “John” referred to in the post! My site is

    (And thanks for the link.)

  • 23. Lesbians Love Boies  |  December 7, 2010 at 9:51 am

    I have read quite a few articles today about yesterday’s hearing. The funniest was an article stating how an exceptional job Cooper did. I think I saw a different hearing.

    The biggest point I noticed from the Pro Prop 8 writers was they expect to lose at the 9th and then win at the SC. I don’t get their thinking.

    Also, there is chatter out there about how Kagan would have to recuse herself on this trial. I didn’t think this trial has any related past to Kagan…right?

    • 24. Kathleen  |  December 7, 2010 at 9:56 am

      I don’t know why Kagan would have to recuse. Have the articles given a reason? I don’t know of any involvement she’s had with this case.

      • 25. Lesbians Love Boies  |  December 7, 2010 at 9:57 am

        That’s what I thought. Thanks!

      • 26. Kate  |  December 7, 2010 at 10:07 am

        Probably because they assume she’ll vote for our side. That’s enough for recusal in their eyes.

        • 27. anonygrl  |  December 7, 2010 at 10:14 am

          Exactly. Fortunately the ploy is so see through that judges (who, believe it or not NOM, are SMART people) don’t seem to be falling for it, do they?

          • 28. Kate  |  December 7, 2010 at 10:18 am

            Maybe she has a lisp, like Reinhardt does…….. :)

      • 29. Mark M. (Seattle)  |  December 7, 2010 at 10:35 am

        Probably because of the thngs she has said in the past about DADT and her support of LGBT issues….don’t think those things would require her to recuse herself, but in NOMs eyes I’m sure they do.

        • 30. fiona64  |  December 7, 2010 at 1:11 pm

          Plus, the assumption on the part of NOMbies and similar that any single professional woman of a certain age* must perforce be a lesbian — which would make her prejudiced.


          * The only exception to this rule is, apparently, Condoleeza Rice, who gets a “bye” because she’s a conservative.

    • 31. BradK  |  December 7, 2010 at 3:07 pm

      Well, if Kagan is asked to recuse herself for remarks or opinions rendered before her appointment to the bench regarding marriage equality, then surely Scalia will have to get in line for the door in front of her. His bitter dissent in Lawrence belied any credible objectivity on the matter.

      And he can take his lap dog Thomas with him.

  • 32. 415kathleenk  |  December 7, 2010 at 9:54 am

    yes this is kathy!

  • 33. Sagesse  |  December 7, 2010 at 9:55 am

    Oh goody. More reading and viewing material. Thanks to P8TT for the coverage.

  • 34. Richard A. Jernigan  |  December 7, 2010 at 9:59 am

    Hugs to all here at P8TT and CCI for this work, and I am talking about all the P8TT family, whether blog writers or commenters! Hugs will have to tide you over until we get things set up with donation next week. Love all of you for keeping us up to date, and for keeping this site so interesting. And we have both learned so much here!

  • 35. anonygrl  |  December 7, 2010 at 10:13 am

    Is it just me or does anyone else think this thing of referring to the Supreme Court Justices as “The Supremes” is a bit rude and makes them sound like some sort of 50s girl group? I hope we don’t get into that practice here, as NOM seems to have done.

    • 36. Kathleen  |  December 7, 2010 at 10:30 am

      It’s not uncommon among lawyers. I first heard it from my Constitutional Law professor.

      • 37. anonygrl  |  December 7, 2010 at 11:07 am

        Really? Eww. But I guess that is all I will say about it.

    • 38. icapricorn  |  December 7, 2010 at 12:28 pm

      60’s girl group! 60’s girl group! Not the wretched 50’s. And not just “some sort of” girl’s group. The greatest girl group of all f-ing time! On a par with the Andrew Sisters.

      The dour Supreme Court will be honored to be compared to the spangled and sequined Supremes, especially John Roberts because as he is in the lead position that makes him Ross the Boss.

      Stop in the name of Love, John. We want our marriages.

  • 39. Alan E  |  December 7, 2010 at 10:29 am

    When did the picture at the top change? Is it new or have I just missed it for quite a while?

    • 40. BK  |  December 7, 2010 at 11:02 am

      I believe that changed just on Wednesday. I could swear that I remember seeing the old picture up earlier this morning.

  • 41. Lesbians Love Boies  |  December 7, 2010 at 10:32 am

    For anyone that is interested, today at noon MST (2pm ET), SPLC’s president Richard Cohen and Intelligence Project director Mark Potok will be hosting a web chat “to discuss the addition of anti-gay organizations, including the Family Research Council, to SPLC’s hate group list.”

    You can register here:

    • 42. Lesbians Love Boies  |  December 7, 2010 at 10:33 am

      I realize this only gives some people less than 20 minutes.

    • 43. Richard A. Jernigan  |  December 7, 2010 at 10:42 am

      Thanks, LLB! I am registered and just waiting for the webcast to start.

      • 44. anonygrl  |  December 7, 2010 at 11:04 am

        You will both have to let us know how it goes.

        • 45. Richard A. Jernigan  |  December 7, 2010 at 11:05 am

          I wish I could. When the webcast started, I found out that I did not have audio, and the plugin won’t work with my OS/browser combination.

          • 46. Lesbians Love Boies  |  December 7, 2010 at 11:14 am

            They will have it online for review.

          • 47. Lesbians Love Boies  |  December 7, 2010 at 11:22 am

            Richard, they have active group technicians to help you get online into the webcast right now

  • 48. Ronnie  |  December 7, 2010 at 10:48 am

    Jay & Bryan fron Gay Family Values give their take on yesterdays arguments in Perry v. Schwarzenegger 9th Circuit Court of Appeal…..<3….Ronnie:

    • 49. Judy  |  December 7, 2010 at 1:22 pm

      I’m not sure they are correct about the “what happens next” statements in the video, but otherwise good. I believe we will receive a ruling next, rather than another court trial.

  • 50. Ronnie  |  December 7, 2010 at 10:58 am

    If you are in the D.C. area on Friday…Service-members Legal Defense Network are holding a rally outside the Senate:

    They write:

    We call upon the Senate and the President to remain in session and in Washington until the National Defense Authorization Act is passed – which includes the repeal of “Don’t Ask, Don’t Tell.” The Senate is scheduled to break for holiday vacation; we can’t let them leave. We must show our rage for repeal and insist the Senate stay in Washington until they have finished the job. We implore all who support repeal to join us outside the Senate this Friday. As Secretary of Defense Robert Gates said, ‘If not now, when?’

    The lame-duck vote on repeal was set up and dictated by some of the same Senators – like Senator John McCain (R-AZ) and Senator Mitch McConnell (R-KY) — who are now delaying to kill the bill. They wanted the Pentagon report – now they have it. They wanted hearings – now they’re done. Senate Majority Leader Harry Reid has said he is determined to pass the defense bill with repeal. Senators must not be allowed to hide any longer behind process, procedure, and tax cuts for the wealthy, while the discrimination continues.

    The rally is scheduled for Friday at noon at Constitution Ave. & Delaware Ave. at Upper Senate Park.

    (me) Although not out of the realm of possibility to me, If I had a way of getting there, in such a short times notice, I would go…but I thought some of you guys who live in that area or have family & friends that live in that area would like to know about this…..REPEAL NOW!!!….AMERICAN WANTS IT!!!!……<3….Ronnie

    • 51. Ronnie  |  December 7, 2010 at 11:00 am

      lol…typed that really fast…of course an American wants it..but more importantly….AMERICANS WANT IT!!!!….<3…Ronnie

      • 52. BK  |  December 7, 2010 at 11:04 am

        Haha, it’s okay, Ronnie. We understand. :)

        • 53. Bob  |  December 7, 2010 at 11:20 am

          yes Ronnie, gottcha, but not only Americans, but this Canadian too, and I know there are many more, and from other countires that want equality too,

          Could this be the time and the place for the PEOPLE to show their RAGE, and take their stand……’s hoping,

  • 54. Ronnie  |  December 7, 2010 at 11:26 am

    Alexander Nicolson, Executive Director for Service-members United) talks DADT repeal on MSNBC’s “Countdown”….(giggles)…He called McCane a Grumpy old man with an ego & bitterness…..right on the nose….<3….Ronnie:

  • 55. Steven  |  December 7, 2010 at 11:51 am

    yesterday hearing with 9th Circuit WAS WOW!!!!!!!!!! I think they ( rule that Pro Prop 8 and Imperial County) don’t have standing to appeal and prop 8 is unconstitutional based on CA Supreme Court’s decision of May 2008. because Prop 8 took rights away with no rational basis.. I think the decision will be only for CA..

    • 56. Mark  |  December 7, 2010 at 12:19 pm

      It may only be for California now, but I think that the ruling, if in our favor, will pave the way for other states to achieve marriage equality in the future.

      • 57. Steven  |  December 7, 2010 at 12:39 pm


        You are correct,. this case will pave way for other states to get marriage equality or keep Marriage equality. governor-elect of Iowa is trying to get a constitutional ammendment.. it won’t fly……..

  • 58. Russell Manaois  |  December 7, 2010 at 12:13 pm

    Jonathan Rauch in the

    • 59. Lesbians Love Boies  |  December 7, 2010 at 12:22 pm

      I agree with Jonathan that we need to rethink our battle – BUT it wasn’t the group of gay students that tried to get rainbow cupcakes that opened the discrimination investigation against the baker – it was the city (the city owns the space and has certain rules tenants must follow.)

      • 60. Russell Manaois  |  December 7, 2010 at 12:30 pm

        Jonathan does state that in each of his punchlines, both of which came to fruition in this case. The students ordered the cupcakes somewhere else AND the city opened the discrimination investigation.

    • 61. Bob  |  December 7, 2010 at 1:27 pm

      and the bottom line is that everyone got it that the gayz own the Rainbow , that’s our symbol not even a discussion about that, and that’s a great indication of where we are in the fight…..

      the religious right would argue that point about the word, same as marriage, the rainbow has great significance in the Bible signifying God’s promise to the people……..

      For a bakery to say no to making rainbow cupcakes indicates their acceptance of it as our symbol…….. otherwise it would be a non issue,

      Just had to get that word in their for the RAIMBOW TRIBE

  • 62. Chris From CO  |  December 7, 2010 at 12:39 pm

    I’m being so selfish when I say I want every state to be forced to evalutate the gay marriage ban thru this case. I need it in Colorado as much as California needs it. I’m hopeful the the judges will eliminate the quilted marriage rules in California. However I am worried they won’t address the discrimination issue of these terrible propositions, amendments that would give a pathway to eliminate all bans. Can anyone address my thought on this.

    • 63. Ann S.  |  December 7, 2010 at 12:44 pm

      Chris, you’re not being selfish at all. Although I am a straight Californian, I want that, too. Of course you need it just as much.

      The question is one of strategy. Is it better to have a ruling that preserves the win at trial before Judge Walker, even if it’s limited to California, and live to fight another day in other states? Or to risk it all before the Supreme Court?

      My big fear is that this case goes to the Supreme Court and we lose — which could well happen. We don’t know what the 9 would do. If we did, the S. Ct. would be unnecessary.

      If we lose this case at the S. Ct., it will set marriage rights back, possibly for decades. It would be one of the most devastating things that could happen to marriage equality.

      • 64. Chris From CO  |  December 7, 2010 at 1:13 pm

        Thank you for your input. One more state for marriage equality is extremely important to me. Californians are in my prayers.

        • 65. Ann S.  |  December 7, 2010 at 1:18 pm

          And I will keep you in my thoughts.

          Every chink in the wall separating our nation from full equality for all citizens will be a step closer to the wall coming tumbling down.

  • 66. Bob  |  December 7, 2010 at 12:51 pm

    @Ann S loved seeing your pic, and your point here about the supreme court is so scary, it is the truth about where America is at right now, you can’t bet on the judges in your supreme court to rule in the favour of equality and justice,,,,,,

    that says it all, there is actually a fear that the religious bigots may have already installed themselves in that position,,of authority, scary that is,,,,,,, ,,

    • 67. Ann S.  |  December 7, 2010 at 12:59 pm

      Thanks, Bob! It was so great to be there hanging out with some of our P8TT buddies and getting to see the plaintiffs and judges and Olsen, Boies and Stewart in real life.

      And it was so heartening — at the 9th Circuit level, I do think we will get justice and equality, at least in California. Every chink in the wall helps bring that wall down.

  • 68. Mike  |  December 7, 2010 at 1:38 pm

    @ The guy who opened in Prop 8 part one, Get a class of water already… orz

  • 69. fern  |  December 7, 2010 at 2:00 pm

    28,201 comments on Yahoo and comments were no longer accepted, I saw some like 2,800 pro gay votes on comments as opposed to 1200 anti gay votes, I never saw anything like it.

  • 70. Rhie  |  December 7, 2010 at 2:56 pm

    Will catch up later

  • 71. Mike  |  December 7, 2010 at 3:14 pm

    What are they talking about ? Why did they use the entire first hour talking about clerks? Why are clerks the main focus of this appeal?

    • 72. Ann S.  |  December 7, 2010 at 3:24 pm

      Imperial County is trying to become “the” government defendant willing to appeal. The proponents have been worried from the beginning that they would not have standing and would need to enlist a governmental defendant to be on their side.

      But instead of getting the county clerk to sign on as a party, they got the deputy county clerk. This could prove to have been a huge tactical error, and their lack of foresight on this is practically unforgivable.

      Tyler seemed not to have anticipated this line of questioning at all, and got taken down into tiny little pieces by the three judges. As he well deserved.

      • 73. Mike  |  December 7, 2010 at 3:42 pm

        mmm I see, that just seems laughable.

        • 74. Ann S.  |  December 7, 2010 at 3:45 pm

          I have no doubt they must have tried to get the actual county clerk. If she delegated this duty to Vargas (a deputy county clerk), the attorneys neglected to get any evidence of this other than a stock declaration by Vargas that she has the necessary authority. The judges weren’t buying that one.

          • 75. Elizabeth Oakes  |  December 7, 2010 at 5:31 pm

            Yeeeeup. As I’ve said since they ran this tactic up the flagpole, utterly stupid and unwarranted, especially since 1. no County Clerk has independent authority to disobey or challenge state directives and 2. the clerk in court was being represented by an outside religious law firm rather than the County’s own legal counsel. Not to mention being only a DEPUTY clerk, a fact that slipped past me until yesterday. All that would make it hard to interpret this action in any other way than a private-party Hail-Mary at standing, and the panel called Tyler’s sorry butt out on the fact. “Where’s Delores?” is a line that should go down in legal history as the most verbally efficient killing of a case EVER.

          • 76. Ann S.  |  December 7, 2010 at 5:36 pm

            When Hawkins first asked, “Where’s Dolores Provencio?”, I was completely puzzled. I had no idea who she was. When Hawkins asked Tyler, “you do know who she is, don’t you?”, you knew Tyler was in big, big trouble.

          • 77. Elizabeth Oakes  |  December 7, 2010 at 10:58 pm

            Yeah. Sweet.

          • 78. Gregory in Salt Lake City  |  December 8, 2010 at 5:24 am

            The implication of this was puzzling me…thank you for “where’s Delores” dialogue”

  • 79. Mike  |  December 7, 2010 at 4:54 pm

    oh my, defendants seem lost in their arguments. They sounded quite unprepared in the prop 8 case as well.

    • 80. Steven  |  December 7, 2010 at 5:40 pm

      they know they have a Sh%%ty case!!!!!!!!!!!! they know they willl lose this case at the end………..

  • 81. Elizabeth Oakes  |  December 7, 2010 at 5:32 pm

    Does anyone know when a transcript will be available? I prefer to re-read rather than re-watch.

  • 82. Mike  |  December 7, 2010 at 6:04 pm

    The part that pisses me off the most is the fact that california didnt rally prop 8, outsiders did. Californians just jumped on the wagon.
    If no outsiders intervened, would prop 8 ever have been formed and introduced to californian voters? Would Californians have funded and litigated such a thing on their own?

    I DOUBT IT. California would have had gay marriages, people would pretend they didnt like it, but nobody would have drawn legal issues over it because over time they would have seen that it really makes no difference to them and they would stop caring about it.

  • 83. Sagesse  |  December 7, 2010 at 6:24 pm

    One of the expert witnesses in the Prop 8 trial described how ballot initiatives ‘nationalize’ issues… I thought it was an odd word. Ballot initiatives draw out of state players and out of state money, and the issue is blown out of proportion to its importance to local voters.


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