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Perry v. Schwarzenegger: first day highlights

Timothy Kincaid

January 11th, 2010

As the trial is not, at present, available on YouTube, I am relying on the excellent liveblogging provided by the Courage Campaign’s Rick Jacobs. Here is how the first day went:

Ted Olson gave his opening remarks, laying out his case.

During this trial, Plaintiffs and leading experts in the fields of history, psychology, economics and political science will prove three fundamental points:

First – Marriage is vitally important in American society.

Second – By denying gay men and lesbians the right to marry, Proposition 8 works a grievous harm on the plaintiffs and other gay men and lesbians throughout California, and adds yet another chapter to the long history of discrimination they have suffered.

Third – Proposition 8 perpetrates this irreparable, immeasurable, discriminatory harm for no good reason.

Then Therese “Terry” Stewart, counsel for San Francisco, asserted that Proposition 8 was economically disadvantageous to the city. He argued that perceptions of second class citizenship lead to hate crimes, a cost that can be avoided.

Charles Cooper, counsel for Protect Marriage is going to show that marriage is about children in a nuclear family, that gay people are powerful and not disadvantaged and that gay marriage would lead to higher divorce rates and lower rates of marriage. It appears that he will be relying predominantly on the testimony of David Blankenhorn.

The supporters of Proposition 8 seem to have argued the peculiar idea that none of the ads they ran encouraging voters to vote for the proposition should be admissible. The judge isn’t buying it, but the ridiculous Gathering Storm ad was not allowed because it was produced after the election.

The proponents, Jeffrey Zarrillo, Paul Katami, Kristin Perry, and Sandra Stier testify about how not being allowed to marry disadvantages their lives and makes them feel unequal. Opposing counsel chooses not to cross examine the women.

nancy cottFinally Professor Nancy Cott, author of Public Vows: A History of Marriage and the Nation provides testimony about how marriage is not just a contract between two people but a contract between individuals and their state. She discusses the history of marriage in our nation, how it is unique from other nations, and how it was the definitive indication of a free people.

From the liveblog

The ability to marry, to say I do, is a civil right. It demonstrates liberty. This can be seen in American history when slaves could not legally marry. As unfreed persons, they could not consent. They lacked that very basic liberty of person to say I do which meant they were taking on the state’s obligates and vice versa. A slave could not take on that set of obligations because they were not free.

When slaves were emancipated, they flocked to get married. IT was not trivial to them by any means. They saw the ability to replace the informal unions with legalized vows that the state would protect. One quotation, the title of an article, “The marriage covenant is the foundation of all our rights,” said a former slave who became a northern soldier. The point here is that this slave built his life on that civil right.

She refers to Dred Scott who tried to claim he was a citizen. He was denied that claim. Justice Tawny spent three paragraphs saying that marriage laws in the state in which Dred Scott was prevented him from marrying a white woman was a stigma that made him less than a full citizen. It was a piece of evidence that shows that he could not be a full citizen.

This is some pretty heady stuff.

Comments

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BobbiCW
January 11th, 2010 | LINK

To get a flavor of what the pro-Prop 8 group’s expert, Mr Blankenhorn, will say there are some videos of a lecture he gave at Dartmouth a few years ago at http://www.vtmarriage.org/html/__david_blankenhorn.htm when he was the expert for the Vermont anti-gay groups.

The videos also include a panel discussion and an audience Q&A.

Gary
January 11th, 2010 | LINK

I have to wonder if Blankenhorn will introduce himself as “the liberal democrat” opposed to gay marriage.

Bearchewtoy75
January 11th, 2010 | LINK

I have a question for anyone with a better understanding of the legal system than I.

So, if the judge rules that Prop 8 is unconstitutional, what happens then? Will it be legal only in CA or in all 50 states? Does it negate DOMA and it will be recognized on a federal level?

I would also assume that the decision will be appealed. If in rules in our favor, will everything be on hold until after the appeal process?

I just wanna know when my partner and I can start tuxedo shopping!

lurker
January 11th, 2010 | LINK

PBS covered the hearing today (on the McLeher (sp?) news hour) . . . the reporter said that if Olson/Boies win at the US Supreme Court that all states would have to allow us to get married.

Timothy Kincaid
January 11th, 2010 | LINK

Bearchewtoy,

Actually, it could go any direction. This could be determined narrowly (ie CA’s unique situation of have some gay married couples and some not) or broadly (ie live Loving v. Virginia). It could impact DOMA or not.

It’s impossible to know, but I think that any decision will be put on hold until the SCOTUS decides.

Emily K
January 11th, 2010 | LINK

I have a question for the gay couples out there. While you might not be able to (according to civil law) call your partner “husband” or “wife,” why not just do so anyway? If I were married, I’d call my spouse my “wife,” not my “domestic partner.” That sounds ridiculously formal. I would refer, in casual company, to my “marriage,” not my “civil union” or “domestic partnership.” If we’re telling straights that our love for our significant others is just as strong and genuine as theirs, we shouldn’t hesitate to discuss it in the same terms and contexts. If we’re going to be considered equal, we should start treating ourselves like we’re equal. Use of this terminology has always been a no-brainer for me, but maybe most people think otherwise.

Priya Lynn
January 11th, 2010 | LINK

I’m right with you on that one Emily.

Burr
January 11th, 2010 | LINK

I assumed most of us who were that committed did that already.

Scott P.
January 11th, 2010 | LINK

I find the term “husband” patronizing and replete with negative connotations, so we use the term “spouse”.

Regan DuCasse
January 11th, 2010 | LINK

Really Scott?
Hmmm…
Well, you’re entitled to feel that way.

I can agree with Emily. I think saying ‘his husband’ or ‘her wife’ can easily fit into our daily lexicon.
And I certainly say it to and in regard to my same gender married friends.

It’ll get the public used to it and understand it.
I am praying VERY hard that people will do the right thing. The ban only preserves what our nation, society and individuals should leave behind in history’s dustbin.

Lucrece
January 11th, 2010 | LINK

Therese is a female. Not a “He”.

Bearchewtoy75
January 12th, 2010 | LINK

Timothy,

Thanks for the reply to my question. Unfortunately, that’s what I was afraid you’d say!

Emily,

I’ve found that most gay male couples I know who have been together for a significant amount of time use the term “husband”, especially when in a setting populated mostly by other gays. Gay people get it, even though it may not be legal. They understand that it’s less about the legality, and more about the commitment.

My partner and I have been together for almost four years, and he wanted to use the term husband around everyone. But that’s when things started to get confusing. Many straight people would think that we were legally married, and then we’d have to explain that we weren’t, so it was just easier to say partner.

I’ve never been a fan of any of other terms.

BOYFRIEND is fine in the beginning, but seems silly after we opened the joint checking account.

LOVER, ironically sounds like it’s all about sex and is something people say in a romance novel.

SIGNIFICANT OTHER and LONGTIME COMPANION just seems like a term you’d use in the 80′s when a newspaper would refuse to publish “lover” in an obituary.

PARTNER I’m still not a big fan of because that can be misinterpreted as a business/creative partner.

Actually, in an informal setting, I prefer saying this is my “Honey” or “Sweetie”.

eric marcoux
January 12th, 2010 | LINK

To Bearchewtoy75 – Well said. My husband of 56 years and I had the same reactions to the various labels as did you. Then we settled for “spouse” as being delightfully gender non-specific. However, three years ago, sitting on the church steps of a famous Trappist monastery where I had spent my youth as a monk, a straight visitor commented on our “spouse” approach. He emphatically said he much preferred “husband” because of its – among other meanings – powerful nurturing implications (cf. animal husbandry). Now we are husbands everywhere and are surprised (still!)that it raises no eyebrows here in Portland, Oregon.

And, delighted, I add we also do the “Sweetie” and “Honey” thing standing naked in the locker room at our local primarily straight gym.

We are fortunate to get these ongoing tastes of what we fight for others to have the right to experience.

Eric Marcoux
Eugene Woodworth

Jason D
January 12th, 2010 | LINK

my partner and I aren’t quite to our 4th anniversary. We haven’t really discussed the marriage and legal contract stuff. There was a point where we were thinking about legal domestic partner stuff in Illinois so that we could get my partner on my insurance, but the rates were ridiculous and having to pay taxes on insurance as if it were income wasn’t nearly close enough to be cost effective. Shortly aftwards, I was laid off and his new job gave him his own insurance so we’ve not discussed it since. Family is starting to treat us like a married couple and not like “boyfriends” now with his father giving us an anniversary present.

I’m more the activist than he is, so I have trouble bringing these things up at times. Perhaps I need to not be so shy about these real issues. He’s a child of divorce, so he has a very negative view of the whole idea of marriage, but doesn’t have any problem with our commitment. So we just use the word partner and make jokes about us owning a Denny’s in Evanston.

Warren
January 12th, 2010 | LINK

Tim,

Any chance you could publish some analysis of Blankenhorn’s research, what it says and what the counter arguments are? The trial is going to turn on what basis the govenrment has for restricting marriage. Olson/Boies are arguing that there is not even a rational basis, yet the law should be held to a higher standard. The ability of Blankenhorn to be convincing in establishing some sort of basis will be crucial.

Thanks,
Warren

Doug
January 12th, 2010 | LINK

Emily, in principle I agree with your position, but in practice it doesn’t fit our needs. My partner and I live in a small rural town, and just celebrated our 10th anniversary last spring with a huge party and commitment ceremony. So life is fine for us. However, we still encounter a lot of ignorance in the broader community. We use the word “partner” or “life partner,” and welcome the potential confusion it arouses, seeing it as an opportunity for conversation. I guess if we were to use the word “husband,” there would be additional conversation opportunities, but somehow it just doesn’t seem to represent reality in the legal sense. He is not my husband in any legal sense of the word, and that’s the way most of the population in this state likes it, at least according to the way they vote. However, I’m more than happy to be passive-aggressive and gently rub this in their face, given the opportunity… it’s a southern thing, so they’re used to it!

Priya Lynn
January 12th, 2010 | LINK

Warren asked “Any chance you could publish some analysis of Blankenhorn’s research, what it says and what the counter arguments are?”.

I second that request. The anti-gays have been notorious distorters on this point. I recall them stating that in some Scandinavian countries the rate of marriage declined after gays were allowed to marry. I think it was Spedale who took another look and found out the real story was that marriage rates had been declining for many years prior to gays being allowed to marry but after the legalization of equal marriage the rate of decline had decreased. He also demonstrated proof that in other countries the rate of marriage had increased after equal marraige had been legalized.

I think the case will turn on this issue and I sure hope Olson and Boise don’t let Blankenhorn get away with the specious and deceptive statistics he’s sure to use.

Burr
January 12th, 2010 | LINK

If anything, marriage discrimination is what makes marriage levels go down. I know many straight couples who say to themselves “well, as long as gays aren’t able to/don’t need marriage, why should we?”

Ben in Oakland
January 12th, 2010 | LINK

Priya=– any time I read anything aobut this, I start to cringe. blankenhorn will probably rely on Stanley Kurtz’s so-called data, which BTB has disproved, as well as others. But will O&B know about some of the statements Blankenhorn has made, basically saying that the cdihldren of gay people don’t matter? I do, but do they?

Ben in Oakland
January 12th, 2010 | LINK

and here is the required link:

http://www.fivethirtyeight.com/2010/01/divorce-rates-appear-higher-in-states.html

Priya Lynn
January 12th, 2010 | LINK

I have similar concerns Ben. I wonder how wise it was of Olson and Boise to refuse to allow the major gay advocacy groups to participate in the trial. They are probably well-versed in the Blankenhorn/Kurtz distortions but I somehow doubt Olson and Boise are.

Priya Lynn
January 12th, 2010 | LINK

Very important link as well.

Richard W. Fitch
January 12th, 2010 | LINK

Is it safe to assume that Olson&Boies might still have reinforcements in the wings. These fellows strike me as too shrewd to cut-off the other advocacy groups completely. They may not be sitting in the court room, but I’m willing to bet there are some crowded conferences rooms elsewhere.

Priya Lynn
January 12th, 2010 | LINK

Well, I hope so, but I still don’t trust these guys. It strikes me as foolish to deny the participation of the major gay advocacy groups in this trial. I’m still not convinced they haven’t brought this case with the intention of losing it and setting equal marriage back a long ways.

Jason D
January 12th, 2010 | LINK

Priya, reading the article that Olson recently wrote on the conservative case for marriage, he’s pretty compelling, and has thought this through fairly carefully
http://joemygod.blogspot.com/2010/01/conservative-case-for-marriage.html

Makes me skeptical that such a solid set of reasoning was put together just to take a dive.

Considering how much our advocacy groups tend to water-down the message and get distracted, I’m glad they’re not involved. It would’ve been a case of too many cooks in the kitchen.

Eric in Oakland
January 12th, 2010 | LINK

I find it absurd that the Pro-8 group is acting as if they oppose gay marriage because of divorce rates and declince in marriages. Why then did this reasoning not appear in their Prop-8 ads? Why then do they not fight to make divorces more difficult to obtain or premarriage counseling to be more available? Also, how can they reasonably argue this when the available data does not show it to be true where gay marriage is already allowed?

I also find the contention that gay people do not deserve marriage because they are “powerful and not disadvantaged” to be absurd. Similar statements have been also used to justify antisemitism. And does that mean they believe that only economically disadvantaged people deserve civil rights? It would then be acceptable to pass laws forbidding wealthy people to marry?

Priya Lynn
January 12th, 2010 | LINK

Jason, I read that article. I’m not sure what to think, I hope they’re on the up and up but I’m not convinced of that – blocking the participation of the major gay advocacy groups strikes me as suspicious and counter-productive.

Eric – excellent point.

Alan
January 12th, 2010 | LINK

Reading the first of the arguments of Olson and Boies, it got me wondering:

Why is marriage so important in American society? And is it, in fact, really important in American society today? Increasing numbers of people today are either cohabiting or staying single.

And if this were a society where marriage wasn’t that important, how would that affect the gay community, in terms of its political goals?

An alternate reality to consider.

Jason D
January 12th, 2010 | LINK

Priya, if you recall, those very same advocacy groups told them NO. Told them it was too soon, and that the plantiffs shouldn’t bother. You’ll notice Lamda Legal or any other gay advocate legal group wasn’t in on this. They refused. But then, when their efforts to deter the case failed….all of a sudden they had a change of heart and demanded to be part of the case.

Why on earth would you let the same people work on your case that months ago criticised you for even bringing the case forward?

Jason D
January 12th, 2010 | LINK

Priya, I guess I’m saying that those advocacy groups, if they’d been supportive from the start, they’d be involved in this case. They weren’t, and when they came crawling for a piece, they were rightly refused.

Priya Lynn
January 12th, 2010 | LINK

Jason, I had the same attitude as those advocacy groups – I thought it was a bad time to bring a case, that it made much more sense to wait until public opinion had moved along more and Obaman had appointed more equality minded Judges to the supreme court. But, if in the face of that, Olson and Boise decided they were going ahead anyway then I figure it makes the most sense to use all the ammunition you’ve got to give it the best shot.

Jason D
January 12th, 2010 | LINK

Priya, you’re assuming our advocacy groups have that ammunition. Why is it they never use it in their own efforts? The anti-prop 8 campaign never dealt with the issues and was operated from within the closet.

I honestly think that the advocacy groups wanted to be involved more for marketing purposes, to have their name attached to the victory, more than anything else.

Burr
January 12th, 2010 | LINK

I wouldn’t group together political advocacy groups like EQCA with legal advocacy groups like Lambda Legal. The latter has lots of success in the courts and plenty of ammunition to bring to the table.

klaus f., germany
January 12th, 2010 | LINK

>”Therese “Terry” Stewart, counsel for San Francisco, asserted that Proposition 8 was economically disadvantageous to the city. He argued that perceptions of second class citizenship lead to hate crimes, a cost that can be avoided.”

Am I the only one to think that it is strange to view hate crimes as a question of economy?

cd
January 13th, 2010 | LINK

It strikes me as foolish to deny the participation of the major gay advocacy groups in this trial. I’m still not convinced they haven’t brought this case with the intention of losing it and setting equal marriage back a long ways.

One thing everyone learns is that putting too many superstars/prima donnas together doesn’t work out. Two can work together, sometimes, but any more than that and it’s about them and not about the job anymore.

I don’t see any particular devious design at work. My hopes for the outcome of the case are modest: I expect the USSC to weasel its way to the outcome it wants. That’s what it does with 14th Amendment social cases.

What I do hope for is that the verdicts, particularly the first one (from the circuit court, i.e. judge Walker, which has to review and score the credibility of the arguments), is quite literally dispositive. The circuit judge’s opinion in Kitzmiller v Dover (2004) was not very important in that it decided against the Creationists- it was important in that it demolished, in the eyes of the American public, the credibility of their side of every argument they had raised. It’s a devastating opinion that annihilated Intelligent Design as a viable concept.

I’d like to see Judge Walker (and maybe the appeals judges) likewise definitively wipe out the credibility of as many anti-marriage arguments as possible. That’s what I see as the real opportunity in Perry v Schwarzenegger- the chance to really diminish the arsenal of allegations the anti side can make on which the public gives them undue credibility or undue benefit of the doubt.

Joel
January 13th, 2010 | LINK

“Charles Cooper, counsel for Protect Marriage is going to show that marriage is about children in a nuclear family, that gay people are powerful and not disadvantaged and that gay marriage would lead to higher divorce rates and lower rates of marriage.”

Maybe this stems from the Dutch and their decline in marriage and increase in out of wedlock births coinciding with the gay marriage debate.

Ben in Oakland
January 13th, 2010 | LINK

Facts and proof, Joel?

Ben in Oakland
January 13th, 2010 | LINK

Joel– BTW, that’s supposed to be the Swedish, or the norwegians.

You must be the same joel that thinks the people have a right to vote on anything.

glad to know you are a troll.

Priya Lynn
January 13th, 2010 | LINK

Joel has no facts or proof, only right wing lies. The truth is the opposite of what Joel claims:

http://slate.msn.com/id/2100884

Jason D
January 13th, 2010 | LINK

If it’s the swedish/norweigan case, I’ve read about that one. There system of marriage is much different. There are no government or other benefits to marriage for them. Thus, surprise surprise, fewer people get married these days. The decline in that country actually started well before any gay partnerships (they didn’t have marriage when this “report” came out) and seems to be unrelated.

Ben in Oakland
January 13th, 2010 | LINK

The country of scandinavia. The country of holland. Whbat the hell. no matter how badly heteros behave– it’s always the fault of the gays.

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