Posted by Maggie on Wednesday, June 16th at 1:01pm
Chuck Cooper: NY Court of Appeals recognized that marriage could only be recognized as opposite sex. When Massachusetts ruled for same-sex marriage, it recognized its ruling changed the definition of marriage understood in common law and in other states. California “from the beginning of statehood” understood marriage to be a relationship between a man and a woman.
Question: Why has marriage been so defined so universally? It is because marriage serves a societal purpose that is equally ubiquitous. A purpose that makes marriage “fundamental to the very existence and survival of the human race.”
The historical record leaves no doubt, none whatever, that the central purpose is to channel potentially procreative unions in to enduring stable unions, to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.
Olson often quotes “marriage creates the most important relationship in life.” In the very same sentence in Maynard, it says marriage has more to do with the morals than any other relation.
Court’s specific holding is that contract law does not restrict marriage law, because marriage alone partakes of an institution regulated and controlled by public authority for the benefit of the community and it explained why the institution.
Walker: Do people get married to benefit the community? People don’t enter into marriage to say “oh I’m going to benefit society” what you think is: I’m going to have a life partner, someone I can share my life with. Is the purpose of marriage for individuals to benefit society?
Cooper: From the standpoint of the state’s interest and society’s interest, this is an institution imbued with social meaning and social . . . That’s why the state has an interest in it. Individuals aren’t necessarily doing it to benefit the community, although that is the ultimate result, the question is why does the government regulate this relationship, why is it different than the . . .
Walker: Why does the state regulate it? Why doesn’t he leave it up to private contract?
Cooper: Because the marriage relationship is fundamental to the survival and existence of the human race. Without the marital relationship, society would come to an end. (Prop 8 opponents titter and laugh)
Walker: Why can’t the state say marriage is entirely a matter of private contract? We aren’t going to issue licenses or set down laws, we are simply going to say you enter into a contract and if you do, we will enforce those contracts just like the state will enforce any other form of contract. Why does marriage have a large role?
Cooper: Why hasn’t any society done what you say? Why has every state in virtually every country indeed regulated this relationship? This relationship is crucial to the public interest because your honor the procreative sexual relations both is an enormous benefit and it represents a very real threat to society’s interest.
Posted by Maggie on Wednesday, June 16th at 12:56pm
Governor waives the right to make a closing argument.
--
Walker wants to know: Do marriage registrars enquire into gender?
Walker: It appears that on applications to marriage licenses there is a box for groom and bride and that is labeled optional. In Orange County there is a bullet point for groom and bride and one labeled none. In my understanding, on the OC application for which you can apply for a marriage license online, if you fill out groom and then punch next to call up the party you can put in the groom again. It doesn’t give you an error message. What do I make of this?
Posted by Maggie on Wednesday, June 16th at 12:52pm
Judge Walker asks whether standard of review is different in due process and equal protection. Olson says no, standard of review is the same.
Walker: If prop 8 is unconstitutional where does that leave the domestic partnership laws?
Olson: Right where they were before. If people want to have a business relationship they can enter a domestic partnership. It is the people who don’t have the right who understand how harmful it is. The state of California can have relationships between all kinds of persons. No one aspires as a child to grow up and enter into a domestic partnership but they do aspire to be married. You don’t have a celebration when you have a domestic partnership. There was so much said about the meaning and significance of marriage.
The Supreme Court said in Zablocki that the right to marry is fundamental to all individuals.
Posted by Maggie on Wednesday, June 16th at 11:30am
Olson talks about banning racial covenants in housing. "We can discern the motives were taking away rights that existed on basis of race. Then comes Romer. Romer individuals were protected by state law on the basis of discrimination by sexual orientation. In California individuals lost the right to marry on the basis of orientation. You’ve taken away the right of redress. The only way to redress is to amend constitution. Only thing they can do is go to citizens and amend the constitution.
In each cases, rights were taken away because of orientation. [Note: Romer was about a blanket prohibition on any form of protection for orientation discrimination, not a discrete issue like marriage]
Walker: Let’s see if I can get an answer to this one. Would this case be different if California had never recognized same-sex marriage?
Olson: Different, but now it’s stronger.
Olson: Facts are stronger because there was a time that California recognized same-sex marriage, albeit for only 6 months. Minority rights are particularly vulnerable. Their rights are being . . .
Walker: What kind of a con system is it, that because of the California decision that had a shelf right of same-sex marriage, now has a greater right than if it had never existed in first place?
Olson: If were writing on a clean slate, which we might be if we were litigating in the next door state, I would be making the same arguments: You people are selecting people out on the basis of orientation, a practice that the Supreme Court says is a constitutionally protected right.
[Yes, Ted admits: I am striking down the laws in all 50 states. How can details of campaign in California matter?]
Walker: Lawrence was a criminal statute. Denial of same-sex marriage does not have any criminal sanction. No criminal penalty.
Olson: That doesn’t make any different if we are talking about—once Lawrence recognized the constitutional right to –what the court talked about is the right for individuals to “our laws and our tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, childrearing and education.” Court goes on to say “persons in a homosexual relationship may seek autonomy for these purposes.” Court was talking about private, intimate things.
Posted by Maggie on Wednesday, June 16th at 11:27am
Walker asks: What are the criteria? When does it become right for the court to weigh in on these issues?
Olson: "Depends on what the state is trying to do and how it affects people. It will be different depending on the facts. If I read the cases going back to 1886 when the Court struck down restrictions on the rights of Chinese to operate a laundry, I think court is making a decision about whether it needs more information about what the state is trying to accomplish, whether it is being done on a narrow basis, not over inclusive or underinclusive, I think these facts aid the decision and the record this decision will have in reviewed by court of appeals, and aid in the understanding of the American people.
“I thought we didn’t need the trial, but I thought it was enormously enriching and important undertaking." (Can you suck up to the judge any more Ted? : ) )
Olson doesn't make a case for originalism or restraint. He does sneak in -- the chinese laundry case -- and attempt to use SSM to revive the Lochner line of substantive due process. Interesting.
Walker: The Supreme Court in Baker v Nelson decided it was not ripe. That was 1972. What has happened in 38 years since?
Olson: Among the things that have happened are Romer, Lawrence v. Texas, a lot of other things have happened. Changes in the ballot propositions. Lots of factual things that are different. The Supreme Court rejected the opportunity to take a miscegenation case in 1955. The same issue was before the court in Zablocki where there was a summary of NO I mean turner v. safely—the case about rights for prisoners—
Posted by NOM Team on Wednesday, June 16th at 11:19am
Friends,
Given the way the day's events are shaping up, we've rearranged the day’s schedule a bit. This gives us a chance to connect with you midway through the day, and then to return for a recap when the arguments wrap up.
I will now be providing live, interactive video commentary on the morning’s developments at 4pm Eastern Time (1pm Pacific time). This is YOUR chance to log on and ask questions regarding the case or the arguments being made by the plaintiffs’ lawyers.
At 4pm Eastern, please log on to http://www.prop8case.com and click on the link under the live video feed that says: "Watch in High Quality and Chat Live." You’ll then be able to submit your question, and I’ll respond to as many as I can.
Later, when the day's arguments are over, Maggie Gallagher will be checking in from San Francisco with her recap of the day.
Meanwhile, please stay active on Twitter and Facebook . . . our opponents love to try to shout us down in these forums, or overwhelm us with the sheer volume of posts. Let's make sure our side is heard as well! We're tweeting #prop8 and @nomtweets!
Posted by Maggie on Wednesday, June 16th at 10:14am
The four views:
Olson "The proponents say its all about procreation and deinstitutionalization. ON the other hand the Supreme Court has 14 decisions about the liberty and privacy of marriage. The testimony of the plantiffs about how they were affected, and all the leading experts of the world agree ssm won’t hurt marriage.
It is no contest.
The plaintiffs have no interest in changing marriage or deinstitutionalizing marriage. They cherish the institution; they want the status the state of California affords to their coworkers, colleagues, family. They are in the same position as the Lovings. They only want to marry the person of their choice, who happens to be a person of a difference race. That’s all the plaintiffs desire, the person of their choice, who happens to be of the same sex."
[Note: Interesting that Olson is dumping on the defendants for pointing to the state's interest in marriage. If marriage is a private and personal right, then why is it state recognized?]
Posted by Maggie on Wednesday, June 16th at 10:10am
Walker asks if a trial was necessary: Olson says yes and no.
Olson: "Yes and no. We don’t need a trial to prove these people are being selected out on the basis of their orientation. What the Supreme Court says about the fundamental rights here, you could have made that decision without a trial. You decided we should have a trial to examine the facts.
I now think that was an exceedingly wise decision. We now have not just the Supreme Court decisions, and not just what we know about discrimination on the basis of sexual orientation, we have now heard real life and we know what it’s like from the experts."
[Note: the experts don’t seem to have to offer evidence. Because they are experts they get to decide key questions like the meaning of marriage. Ted Olson doesn’t seem to believe in judicial restraint so much as rule by professors.]
Posted by Maggie on Wednesday, June 16th at 10:07am
Cott: Same-sex couples meet the state’s purposes for marriage. By excluding gay couples from this highly valued institution, society is denying itself another resource for stability and social order.
Olson: We learned racial restrictions finally ended in Loving v. Virginia, a limitation on marriage choices that once existed in 41 states. Prop 8 is very much like those restrictions. It designates gays and lesbians as less worthy. Marriage is special the experts tell us, domestic partnerships and civil unions are pale comparisons. There is nothing that is like marriage except marriage, as Cott put it.
As Dr. Peplau testified, married couples are healthier, live longer, emotionally more stable on every measure of domestic health. Civil unions is a stigma. Removing the stigma would produce powerful collateral benefits, here is Dr. Myer, one of the world’s leading experts on stigma and discrimination.
Myer: We see Prop 8 as part of the stigma, as something that propagates the stigma. It doesn’t send a message that it’s okay to be who you want to be; that we respect that we welcome them as part of the community. It sends the opposite message in my mind, and therefore adds to that pressure that encourages some people to conceal. Also when I talk about the effects of Prop 8, they also send the same message to other people who are not themselves gay. It is not just damaging to gay people because they feel bad about their rejection; it sends a message that it is okay to reject gay people, to designate them as different class of people in terms of their intimate relationships.
Olson: I was struck by that same word appearing again and again. Okay. Sandy just wanted her children to feel okay about who her parents were and who they were living with. The proponents said we must protect our children from being taught that gay marriage is okay. And Dr. Myer testified the stigma is that it is not okay to be gay. That it is abnormal, unusual, certainly that it is not okay. The experts testified not only that same-sex marriage would not harm marriage or diminish heterosexual interest in marriage, but that the elimination of discriminatory barriers and harmful stigmas strengthen the institution of marriage and strengthen our country.
We are not talking just about the couples who wish to marry; we are talking about their children -- 37,000. The evidence was uncontradicted that the lives of these children would be better if they were living in a marital household. Even David Blankenhorn agreed with that proposition:
Blankenhorn: Likely to improve the well-being of gay and lesbian households and their children.
I was stricken by Mr. Blankenhorn’s testimony about the other societal benefits that would arise from SSM. Let me play two excerpts.
Posted by Maggie on Wednesday, June 16th at 9:47am
Olson: The rationalizations offered at end of trial were different from the ones at the ballot box. These are post-hoc rationalizations because proponents don’t want to say gays are unusual and they don’t want children to know about them, that sounds something like animus, so the rationale is now deinstitutionalization of marriage—whatever that is.
I think the proponents should hear what the plaintiffs mean in their own words: this means marriage, the social institution of marriage that is so valuable the Supreme Court says it is the most important relation in life. They say it means freedom, pride, belonging, respect, security, honor, dedication, and a public commitment to the world. “It’s the most important decision you make as an adult.” Who could disagree with that?
I would like to play some testimony from plaintiffs, explaining why they want marriage:
Plaintiff Katami:
Why did you want to get married? Many reasons, the primary reasons are I found someone I love and someone I can dedicate my life to, and when you find someone who is not only my best friend, but your best advocate and supporter it’s a natural step for me to want to marry.
Plaintiff Zoro:
“The love of my life. I love him probably more than I love myself. I would do anything for him. I would put his needs ahead of my own. I would be with him in sickness and health, richer and poorer, til death do us part. Just like vows. I would do anything for him and I want nothing more than to marry him.
Plaintiff Kristin Perry:
If the courts were to decide that you and other same-persons seeking to marry some of the same sex did indeed have a constitutional right to get married, do you think that would effect other acts of discrimination?
I believe for me personally as a lesbian if I had grown up in a world where the most important decision I was going to make as an adult was treated the same as everyone else’s decision that I would not have been treated the same. There is something so humiliating as knowing you want to make that decision and you don’t get to. It’s hard to face people. I have to find a way to feel okay and not take every bit of discriminatory behavior towards me personally because that would only hurt me and my family. If Prop 8 were undone, and people growing up in Bakersfield could never know what this feels like, they would be at a higher arc, it would improve the whole quality of their life.
Posted by Maggie on Wednesday, June 16th at 9:44am
Walker: Would this case be different if they had invalidated the 18,000 marriages performed?
Olson: Yes, it would be worse. Right now California has 18,000 same-sex marriages. Heterosexual persons can marry a person of their choice. A wifebeater, criminal. People who can get married and people who can’t get married.
If they get divorced they can’t remarry the same person.
Walker: Wouldn’t the marriage regime be more rational if California had invalidated those 18,000 marriages?
(Oh so that’s where the judge is going: because they didn’t invalidate those marriages, Prop 8 is MORE unconstituional?”)
Posted by Maggie on Wednesday, June 16th at 9:42am
“June is the month for weddings” jokes Judge Walker. He calls Olson leading off for the plaintiffs. Some housekeeping matters. Then next up: Ted Olson.
Olson: We conclude this trial where we began. The fundamental right to marriage was taken away from plaintiffs. There state has rewritten their constitution to place them in a special disfavored category where their most intimate relationships not valid, not recognized, second rate. Their state has stigmatized them as unworthy of marriage.
The heart and soul of this case is marriage. I will focus on marriage from four perspectives: as seen from the proponents of prop 8, the Supreme Court, the plantiffs, and the experts who came forward.
Proponents: in the words of their lead counsel: the central and defining purpose of marriage—what it has always been—is to promote procreation and narrow sexually procreatiove relationships between men and women in stable unions. The child has a right to mother and father who brought him into the world.
Proponents of Prop 8 see marriage as institution of, by, and for the state to promote procreation and childrearing by their biological parents. They see marriage as a product of the state. Racial restrictions were never a definitional part of marriage.
You asked “How does permitting SS couples to marry in any way dimish the procreative function of marriage for heterosexuals.” Lead counsel responded: Your honor, because it will change the institution. Changing the institution will likely lead to very real social harms, with more children raised outside the marriage and separated from at least one of their parents.
It is revealing that the de-instutionalization message is quite different from the main message of the Prop 8 question. That focused heavily on protect our children from learning that gay marriage is OK.
That was put into the voter guide by the proponents.
The “gays is not ok” message was largely abandoned during the trial, and after promisng proof that people might stop marrying and cease procreating if prop 8 were overturn, the proponents switched course from that as well. They argued they had no evidence their prognostications would come to pass. From their counsel you will hear nothing but predictions in this trial; it is not possible to render reliable and certain judgments.
Posted by Maggie on Wednesday, June 16th at 9:40am
They saved me a seat in the Defendants section in the courthouse. Judge Walker just arrived, we all rose. Very solemn, very quiet, very historic. David Boies and Ted Olson introducing themselves formally to Judge Walker.
