LGBT POV

It seemed that everyone’s nerves were on edge this first day of the historic federal challenge to Prop 8 in the San Francisco district courthouse, just a block or so away from where all those thousands of jubilant couples married illegally in 2004 at City Hall.

Today this from the San Francisco Mayor who helped make the marriage issue matter: RT @GavinNewsom Hats off to David Boies & Ted Olson for their effort to overturn Prop 8– opening statements today in SF #Prop8

You can follow these Tweeters live during the trial, per Eden James from the Courage Campaign:

Dan Levine, a reporter for legal news publication The Recorder can be followed @FedcourtJunkie. Also NCLR’s Ilona Turner @ilona, The Advocate @TheAdvocateMag, American Foundation for Equal Rights, @AmerEqualRights , and the ACLU of Northern California @ACLU_NorCal are all live tweeting.  The Courage Campaign is also tweeting the trial at @CourageCampaign

There has been a lot of good reporting on today’s trial – especially from our friend, AP’s Lisa Leff, which you can read here,  Variety’s Ted Johnson (here) and live-blogging from Courage Campaign founder Rcik Jacobs, which I discuss in more detail below.

So I’m going to write about some of the aspects of today’s trial that haven’t really been written about.

At 6:30 this morning, Molly McKay and Marriage Equality USA lead a rally in the freezing darkness outside the courthouse, as if to say that the marriage equality movement is ushering in a new dawn.

There was only one sign saying marriage is between one man and one woman, ironically held up by two men.

AP’s Lisa Leff on her cell phone broke the big news of the morning to journos and bloggers hanging outside the courtroom on the 17^th floor – the US Supreme Court denied broadcasting outside the courtroom. Variety’s Ted Johnson jumped on his Blackberry reading the report, which Lisa confirmed: the Court also prohibited the transmission outside the San Francisco federal court. A number of us worried about all those citizens one their way to district courts designated a viewing areas.

I asked Chad Griffin, president of the board of the American Foundation for Equal Rights (AFER) which is sponsoring the lawsuit, if they would post the trial transcripts on their website. www.equalrightsfoundation.org/ He said: “Anything we are allowed to do, we will do.” With Adam Umhoefer and Yusef Robb on top of the communications, I think they will post as much as they are legally able to. And the AFER team has been very strong in their support for public access to the hearing.

That’s been the Courage Campaign’s most recent push and to illustrate the point, Rick Jacobs brought with over 140,641 comments asking for access to the hearing. Big kudos to Jacobs, as well, for stepping up and live-blogging the first day of the trial after it became apparent there was spotty-to-no transmission out of the hearing room. In fact, they created a very amusing logo mocking Yes on 8 for a new blog they call Prop8TrialTracker.com.

After the introduction of all the lawyers, Judge Vaughn Walker took note of the Supreme Court ruling by Justice Kennedy, saying the high court would make a further ruling on Wednesday. But the issue of broadcasting the trial “was resolved for the moment.”

Walker went on to “clarify” a couple of points: first of all, the content would be posted on the Northern District for California website – not Google YouTube as is commonly understood. Google YouTube is just the conduit for posting – just like on the White House website. “That service would be used here in exactly the same manner.” Seemed like he was sending a signal to the Supreme Court about opening up government to its citizens.

Walker then said that he received “a substantial number of comments by 5:00pm Friday – 138,574” with the “overwhelming majority in favor of the rule change; there were 32 comments opposed. People laughed. He said uproar, however, was “very helpful” – noting that it is “highly unfortunate” that the courts have not dealt with the issue of public access in the past. “Finally, after some 20 years, we’ll get some sensible movement forward,” Walker said.

I noted the disparity in numbers between those announced by Jacobs and Walker – but it might only matter if the open government advocates need to rally to yell at the US Supreme Court if they ban the camera altogether.

Theodore Boutrous Jr., a partner in Gibson Dunn, the law firm representing the plaintiffs, asked if the transmission fed within the courtroom could be recorded and preserved so that if the high court ruled that it was OK to broadcast or post the opening remarks of lead plaintiff’s counsel Ted Olson and lead defense counsel Charles Cooper, as well as the first couple of days of the trial, that would be available. After some legal hemming and hawing, Walker said yes, the hearing would be recorded.

I was suddenly struck by how sad and demoralized the Prop 8 side looked.  Ted Olson, David Boise and their team of lawyers, as well as San Francisco City Attorney Dennis Herrera and Deputy City Attorney Therese Stewart (who argued the marriage case with Shannon Minter before the California Supreme Court) sat on the right side facing the judge with two long rows of thick binders behind them. There were also for rows filled with other counsels, the plaintiffs,

Photo by Diana Walker

Kris Perry and Sandy Stier and two of their children and Paul Katami and Jeff Zarrillo,  AFER board members Chad Griffin, Hollywood producer Bruce Cohen (and his husband Gabe Catone), LGBT activist Cleve Jones, screenwriter Dustin Lance Black, actor/director Rob Reiner, and other AFER supporters. Behind them sat “members of the public” who had lined up to get an open seat. There was also a public “over-flow room” two floors up.

On the left side facing the judge sat the legal defense team, with Charles Cooper as lead attorney for ProtectMarriage.com and two attorneys for the Alliance Defense Fund. Behind them were not rows of thick folders but a row of attorneys for Attorney Jerry Brown and Gov. Arnold Schwarzenegger and other attorneys for the defense. They had a table with two women on computers and one row of possible supporters. They looked like they were making motions to look busy rather than actually doing anything. At the break Therese Stewart told me that two or three of their witnesses had dropped out that morning. That would explain the pall that hung over that table – and throughout the day, Cooper and the other lawyer for the Alliance Defense Fund kept promising that their expert David Blankenhorn would explain everything to the judge, who kept asking for evidence about how each side would prove their contentions.

Blankenhorn, you might remember, is the “liberal Democrat” president of the Institute for American Values, who shared a New York Times op-ed on gay marriage with openly gay Jonathan Rauch, guest scholar at the Brookings Institute.

In a Sept. 19, 2008  LA Times op-ed, he said:

“Marriage is society’s most pro-child institution,” recognized through history and a myriad of cultures.”

That basically, was Cooper’s mantra – marriage equals protection of children.

There were surprising moments from this friend and Republican colleague of Ted Olson. After going on about how gays and lesbians have all this political power – referring to the legislature, the unions, the newspapers, Hollywood – Cooper acknowledged that public attitudes have changed from the days of Prop 22 to Prop 8. But no one can predict what will happen in the future so we shouldn’t rush ahead.  It was another twist on the effective, invented yes on Prop 8 “consequences” argument that since marriage is so new, we don’t know what might happen as marriage is “de-institutionalized.”

Cooper also made the “activists judges” argument – and that the 14^th Amendment doesn’t take the definition of marriage out of the hands of the people. Besides, Californians have been “very generous with gays.” And even President Barack Obama said marriage should be between a man and a woman.

But then, as if to painfully underscore how scattered, repetitious and at times awkwardly funny Cooper’s opening statement was, Judge Walker reminded him that just moments earlier in his opening statement, Ted Olson noted that Obama’s parents couldn’t get married in Virginia because they were of two different races.

But Cooper replied, “race has never been a restriction” enshrined in marriage.  Some of us looked at each other and went, HUH????

He goes on to explain that race is not a restriction to the definition of marriage – ie that a man and a woman get married to procreate. Echoing Blankenhorn, Cooper says, marriage is a pro-child institution – WAY more important than love, emotion support and companionship.

And just to finalize his point, Cooper assert that the landmark civil rights case of Loving v Virginia #mce_temp_url# that ended race-based discrimination in marriage based on the 14^th Amendment – was only about the race and not marriage so therefore the 14^th Amendment’s Equal Protection Clause did not apply to same sex marriage.

Wow.

But as the trial ended on Monday, the witness on the stand, Harvard Professor and history scholar Nancy Cott – whose opening statement was “what a capacious institution[marriage] is” – really zinged Cooper.

In his opening remarks, Cooper said the limitation of marriage to a man and a woman is something that is universal throughout history and different cultures. Cott, in her very professorial way, said she was “amused” when she heard Cooper say that because “the Bible is a situation in which characters practice polygamy.” She said his statement was “inaccurate.”

But in an interesting juxtaposition to Cooper’s analysis of race and marriage, Cott talked about the Dred Scott decision and how for slaves, the ability to get married was the mark of a free man.

Boutrous said he has another hour of questions – and then she’ll undergo cross-examination, which could just get nasty.

Photo by Diana Walker

The highlight of the trial Monday was the powerful, moving testimony of the four plaintiffs under the gentle questioning of David Boies, each describing their willing-to-die-for love of their partner, the “harm” done to them individually and as a couple by the discrimination caused by their different married status, and how domestic partnerships was humiliating and just not good enough. At times, they each choked up and paused, causing some of us in the gallery to choke up, too – when talking about their love or talking about the difficulty of being in the closet and wanting to be liked. But perhaps the most moving was how the two teenage sons of Kris and Sandy cried openly as Kris testified about her love for Sandy and for them.

Ted Olson’s opening remarks were powerful and so on point, it was just breathtaking to hear these words spoken by the former Solicitor General for President George W. Bush. Olson was repeatedly interrupted and questioned by Judge Walker – so much so one observer wondered if Walker had already written his decision and was trying to steer both plaintiff and defense counsels to into answering questions he needed to address. Ah, conspiracy theories invade the courtroom. But if nothing else, we certainly learned that Walker will be a very engaged judge – which, with his deep clear voice and mischievous sense of humor, should make the trial very interesting, as well as historic

Photo by Diana Walker

AFER has posted Olson’s opening comments so you can read them yourself.  And Olson and the plaintiffs will be on the Today show tomorrow morning.

I haven’t seen Cooper give any major interviews. Maybe he’s just forelorn about that.

In the meantime, here’s the closing portion of Olson’s remarks:

At the end of the day, whatever the motives of its Proponents, Proposition 8 enacted an utterly irrational regime to govern entitlement to the fundamental right to marry, consisting now of at least four separate and distinct classes of citizens:  (1) heterosexuals, including convicted criminals, substance abusers and sex offenders, who are permitted to marry; (2) 18,000 same-sex couples married between June and November of 2008,  who are allowed to remain married but may not remarry if they divorce or are widowed; (3) thousands of same-sex couples who were married in certain other states prior to November of 2008, whose marriages are now valid and recognized in California; and, finally (4) all other same-sex couples in California who, like the Plaintiffs, are prohibited from marrying by Proposition 8.

There is no rational justification for this unique pattern of discrimination.  Proposition 8, and the irrational pattern of California’s regulation of marriage which it promulgates, advances no legitimate state interest.  All it does is label gay and lesbian persons as different, inferior, unequal, and disfavored.  And it brands their relationships as not the same, and less-approved than those enjoyed by opposite sex couples.  It stigmatizes gays and lesbians, classifies them as outcasts, and causes needless pain, isolation and humiliation.