Prop 8 closing argument transcript »
The full transcript of yesterday’s oral arguments is now available online at:
http://nomblog.com/wp-content/uploads/2010/06/33166731-Perry-v-Schwarzenegger-Vol-13-6-16-10.pdf
The Bay Citizen: Skits, Tweets and Video Screens »
In the absence of video cameras, coverage of the Prop 8 closing arguments included liveblogging, Twitter, and even re-enactments from trial transcripts:
Guerilla street performances of court transcripts were probably the quirkiest reaction to the no-filming verdict—and one of the most effective, said representatives of Courage Campaign, a pro-gay-marriage, grass-roots activist network. . . .
Maggie Gallagher, chair of the National Organization for Marriage, which supports Prop. 8, said, “I do think the re-enactment is a bit odd, but to each his own.”
Gallagher's medium of communication today was primarily Twitter, though she says she would have published a transcript of the hearing via blog if she'd had better Internet access in the courtroom. She says she finds posting about the hearing on the Internet to be, in some ways, more intimate than filming it. Having multiple parties transcribing and responding to different parts of the hearing allows more viewpoints to be expressed, she said.
“What you find notable depends on your view, and our view is not well represented in mainstream media,” she said. “We thought it was important that we be here.”
End of Hearing »
Attorneys from Protect Marriage address a packed press conference:
Camera crews poised at the follow-up press conference with both Protect Marriage and the anti-prop8 attorneys:
Maggie does media interviews while, over her shoulder, the anti-Prop 8 folks do interviews as well:
Statement from Maggie »
"Chuck Cooper is a heckuva lawyer. At stake in this case is the future of marriage in all 50 states, and he's right that this attempt to shut down the debate by constitutionalizing gay marriage will backfire. Americans have a right to vote for marriage. Ted Olson doesn't seem to understand the argument, and judging from today's exchanges neither does Judge Walker. I expect Judge Walker will overrule Prop 8. But millions of Americans do understand why marriage is the union of husband and wife and I believe the majority of the Supreme Court will as well."
Is sexual orientation a suspect classification? »
The final exchange between Walker and Cooper:
Walker: Isn’t it historical context that determines whether a group is a suspect classification? (Women have power, but gender is still suspect. Blacks have power, but race is still suspect).
Walker: Prop 8 and propositions in other states that limit marriage to opposite sex couples, DOMA, the exclusion of gays and lesbians from military service, aren’t these all indices of a long history of discrimination.
Cooper: We do not dispute that gays and lesbians have had a long and shameful history of discrimination. But the fact of a history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny. The court has insisted as well on immutability and political powerlessness at the time the issue comes before the court.
The 9th circuit believed even 20 years ago that gays and lesbians were not politically powerless then. It follows that it must be true today. Even though the mentally retarded had a history of discrimination, and mental disability is immutable, they could not qualify for heightened scrutiny because the mentally disabled had political power. They had to rely on allies.
Judge Walker to find fundamental right to SSM? »
Maggie: OK, Judge just announced SSM is a fundamental right: "and in this case marriage is a deeply rooted fundamental right. And a right that extends to all persons, whether they are capable of producing children, whether they are incarcerated, whether they are behind in their child support. There really is no limitation except a gender limitation."
Take bets, he is first judge to find a fundamental right to SSM? And upholds an equal protection claim on gender--that's the point of the scrutiny of the marriage registrars?
Walker brings up Blankenhorn »
Walker: Why should Blankenhorn’s testimony be admitted? Does he meet the standards?
Cooper: He does. I didn’t understand your previous ruling on him to be provisional. I really don’t have to add to the submission we made when the motion was before you and the voi dire took place. Blankenhorn is amply qualified; his professional life has been devoted to the subject of marriage and the potential and alternative parenting structures, and the potential to harm from marriage from a variety of social phenomena including now same-sex marriage. He’s written two books on this subject matter, a product of deep and wide study. Those books have been received with respect by recognized experts including Dr. Lamb.
Walker: Peer review? The book? Am I correct the only peer review by Blankenhorn was not on the subject of the litigation?
Cooper: I can’t answer that standing here right now. 9th circuit standards do not insist an expert’s publications have been peer reviewed. That is an element, not mandatory. Again I didn’t come prepared to re-argue it. The transcript provides all I had to say with respect to that issue.
Walker: If in the cool light of the morning you want to submit more, I’ll give you the opportunity.
“Astonishing Plasticity” of sexual orientation in women »
Walker asks, isn’t everything socially constructed?
Cooper: No fundamental difference between gender distinction and orientation distinctions.
We raised the very difficult issues surrounding sexual orientation and its effectively indefinable nature and the simple fact that it is not immutable. Our submission is that sexual orientation is not an immutable trait, that is an accident of birth.
Cooper: Says he means “accident of birth” in the way that . . .
Walker: Brings up religious discrimination, not a category by birth.
Cooper: Yes, but heightened scrutinty springs from First Amendment not 14th Amendment in case of religion. Race, of course, the central concern of the 14th amendment, in Loving a key point was that the central concern of the 14th amendment was to eliminate all invidious racial discrimination and here that is not the case.
The 9th Circuit said that orientation is not an immutable characteristic. That’s a quote. Measured against the Supreme Court’s decision we submit that is plainly right. We are aware of no case that has applied heightened scrutinty on the 14th amendment to sexual orientation classification.
The case before you evidence shows characteristics do not apply: it is not only difficult to define, almost all the experts testified that there are at least 3 definitions: behavioral, attraction, self-identity and depending on which one you use there is a wide variety of people in that class. Not just that its amorphous definitional situation is the fact that the plaintiffs’ witnesses were quite candid that sexual orientation does change over time. Apparently it changes especially in women. “Astonishing plasticity” in sexual orientation in women. Perhaps the most vivid is an APA study that indicated over a ten-year period for women who identified themselves as homosexual some 2/3 had changed their sexual orientation at least once over the course of their lifetime. And a third, more than once. This does go directly to Supreme Court test of “immutability” is it an “accident of birth.” Quotes Ginsburg.
Morality, marriage and fundamental rights »
Cooper: Now I want to move to an area where plaintiffs have emphasized. They have gone to great lengths to underscore the religious beliefs of the people who campaigned for Prop 8. It is hardly remarkable that religious beliefs and religious people are involved in the political process. It is part of our Constitutional tradition, from the American Revolution to the abolitionist and civil rights movements.
There are issues that are bound up and inexitricably involve moral values and moral judgments from the death penalty, gambling, obscenity, prostitution. An issue before the Supreme Court not that long ago in the Glucksberg case, the issue of assisted suicide—the Court noted that throughout the nation Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide, and that the Constitution permits this debate to continue as it should in a democratic society. The Court was careful to make clear that when the Court is asked for a new fundamental right, it must carefully analyze that claim, that it be rooted deeply in our country’s history and tradition, in order to protect against taking important issues off the table of the Democratic process.
This is true also of marriage.
Walker: You concede there are times when it is appropriate for the courts to do that? Loving? Brown? What are the criteria that the court should use in making that determination?
Cooper: The criteria is what the Supreme Court has articulated: The rights claim must be deeply rooted in the history, traditions of this country.
Walker: And in this case marriage is a deeply rooted fundamental right. And a right that extends to all persons, whether they are capable of producing children, whether they are incarcerated, whether they are behind in their child support. There really is no limitation except a gender limitation.
Lofton and rational basis »
Cooper moves on: I want to conclude this piece of my argument by calling the court’s attention to a case from the 11th Circuit called Lofton. The 11th circuit upheld a foreign statute that prohibited gay adoptions. At the heart of that case was this consideration that we have been discussing, the core procreative element or purpose of marriage and the idea that was displayed again in the official ballot intiative argument that many many people believe it is best for a child to be raised by the child’s own mother and father. What the court there concluded, and I might add the expert for the plaintiffs in that case was Dr. Lamb . . . Ultimately the court concluded that the evidence submitted there by Dr. Lamb was not adequate to render irrational the common sense belief that children do best when raised by their own mother and father.
You may recall me quoting from the NY Court of Appeals that common sense proposition. Taking all this available information into account, the legislature could rationally conclude that the married opposite sex couples are the optimum conditions for childrearing.
Same-sex parenting has not proved itself “beyond reasonable scientific dispute” that it is optimal form of childrearing. The standard is whether or not the evidence produced by the plaintiffs is more than just opinion evidence but rises to the level of no debatable scientific facts. That it couldn’t be said with respect to the common sense belief that many many people hold, and many researchers hold, that the optimal child rearing parental structure is the traditional intact family.
Cooper fighting hard to protect 18,000 gay marriages »
Cooper: Long discussion of 18,000 marriages. Cooper fighting hard to protect 18,000 gay marriages and Prop 8. “We think that grandfathering of those marriages is perfectly rational and common and perfectly constitutional.” Judge seems to suggest it’s all or nothing.
Procreation: Post Hoc Rationalization? »
On kids need a mom and dad point:
Ted Olson argued that defendants are changing the subject, bringing post hoc rationalizations in making this case.
Chuck Cooper points to much, much evidence that people DID make this argument (I know I did, I never attended a single meeting in California for Prop 8 in which this wasn’t one of the main points raised.) Voter guide raised it. Op-eds raised it.
Cooper goes on: “This was a frequent theme in the religious communities that were active in Prop 8 and the campaign wasn’t just what Protect Marriage had to say, it was a cacophony of debate ranging from the TV ads to conversations at the office water cooler. People debated this issue in every venue and every forum in civic centers, it was a cacophony and one doesn’t have to pinpoint a particular argument that virtually any argument was being advanced by these very passionate debates."
Procreation and rational basis, cont. »
Cooper: What does rational basis mean? "Core distinguishing difference related to the public purpose justifies on a rational basis maintaining the historic definition of marriage.”
Walker: You heard Mr. Olson this morning recounting the Loving decision in 1967. Up to that time, numerous states had laws on the states prohibiting interracial marriage. At some point there came the same kind of social change you just described with respect to homosexuality. In 1967, that matured into a constitutional recognition of a constitutional right, that the limitation against interracial marriage violated a fundamental right. Why are we not at that same tipping point here with respect to same-sex something or another?
Cooper: Several reasons. The most important is this: What legitimate purpose of marriage recognized historically or anywhere else provided a rational business for the state of Virgnia to say that an interracial couple could not get married? It certainly wasn’t the core procreative purpose, because that purpose was frustrated by those policies, that purpose was at war with the overriding ubiquitious core procreative purpose of marriage because it required people who interracial couples . . .
Walker: But you recall a number of decisions that upheld those laws was that the mixing of the races was going to be destructive. Would have serious corrosive effects on society.
Cooper: Those racist sentiments and policies had no foundation in historical purpose of marriage and in fact again were at war with it. Racial restrictions on marriage were not part of the common law. As we maintained from the beginning, the opposite-sex nature of marriage is definitional, as the Supreme Court has often recognized because this relationship is fundamental to the existence and survival of the human race. The opposite sex nature of marriage has always been definitional. The common law did not place restrictions on marriage; many states did not place racial restrictions on marriage -- they grew out of this very particular racist white supremacist theory that was at war with the legitimate purposes of marriage. They actually made people have illegitimate natural children.
Racial restrictions were at war with its very definition.
Second point I want to make, these restrictions.
Walker interrupts: Why isn’t the limitation on marriage to gay couples, lesbian couples similarly at war with their desire to raise their own children in the context of a marriage partnership?
Cooper: This is the distinction that the 8th Circuit recognized and that case after case has recognized. There are distinguishing characteristics relevant to the interest the state is pursuing here as the 8th circuit said. Only opposite-sex couples can procreate naturally and therefore it is only opposite-sex couples who uniquely address this fundamental historic purpose, and present the threat to society’s interest that marriage is designed to minimize, the threat of irresponsible procreation. The reality that procreative sexual relationships between men and women are not channeled into marriage with binding vows, then much more frequently the society has to itself cope with the adverse social ramifications of irresponsible procreation.
Outside the Courtroom »
Image of the outside of the courthouse where hearing is taking place
Hearings are at full capacity -- sign posted on courthouse door
What’s the Evidence that Marriage is About Procreation? »
Judge Walker asks, “What's the evidence?”
Cooper: "The evidence is overwhelming, what Congress calls “responsible procreation” is at the heart of the state’s interest in regulating marriage.
The evidence before you shows what sociologist Kingsley Davis has described as a universal definition of marriage: “social recognition and approval of a couple engaging in sexual intercourse and bearing and raising children.”
Blackstone: “Two great relations, husband and wife, founded in nature but modified in civil society, with prescribing the manner in which that parent and child, which is consequential to that of marriage being its principle end and design. It is by virtue of this relation that infants are maintained, protected and educated.”
Stevens in his dissent in Bowers: Marriage is a license to cohabit and produce children, this understanding of marriage is before you
Walker: I don’t mean to be flip but Blackstone didn’t testify. What testimony in this case?
Cooper: This evidence is before you. But Blankenhorn brought it before you. You don’t have to have evidence from these authorities. This is in the cases themselves. The cases recognize this, one after another.
Evidence of this point, if one court after another has recognized that procreation is the purpose.
Let me turn to the California cases on this: “The first purpose of matrimony by the laws of nature and society is procreation”
[proceeds to cite long line of cases, California, Congress’s words in DOMA, and other court decisions]