Second, I read the entire transcript and it was a delight…well worth the read. I agree with others that it seems that Mr. Cooper is “throwing” the case. He presentes one piece of evidence that winds up supporting our case. He quotes people that are not a part of the record. He relies on “common law” and “thats the way we always did it.” Neither of which was acceptable to the Judge.

My favorite phrase is coined above: “It can’t be constitutional to take away a constitutional right because a person engaged in a constitutionally protected behavior.”

Last, I think that the Judge gets it. He turns Cooper’s words back around on him by using the exact same words to defend the plaintiff’s position. Olsen was terrific in dealing with the Ninth Circuit rulings. He gutted Cooper’s reference to High Tech Gays by quoting a more recent case by the 9th that nullified High Tech Gays. There is so much more!

Thanks BTB for bringing the info and the links. I am going to write a letter to Olsen and Walker thanking them for excellent work.

No, I believe they are saying that restricting marriage to opposite sex couples has no “rational basis.” They aren’t arguing that the citizens of California can’t outlaw incestuous marriages or marriages of 9 year olds, as both presumably would have a “rational basis.” (Interestingly, California does currently allow first cousin marriages.)

Yes, they are. I’m very impressed with their skills. And sure, I don’t think they took this case as a hopeless fight.

[...] if Olson and Boies are aiming at a very specific ruling – overturning simply the referenda process for determining marriage laws, using Romer v. Evans as the precedent. I think you’d be much more likely to get conservative Justices to sign onto such a decision if it did not explicitly overturn DOMA

I understood this to mean you think Olsen/Boies are asking the judge to rule that the citizens of California cannot vote on marriage laws at all? How would the conservative majority of the SCOTUS sign on to that?

Priya Lynn…. I was with you up until that point, then you competely lost me. Having your wish granted can’t work out to be a good thing for the cause.

Well, I’ve always been one for contrarian thinking.

They believe that they will win. And they are damn good at what they do.

I agree, and I really wonder, as I’ve noted on other blogs, if Olson and Boies are aiming at a very specific ruling – overturning simply the referenda process for determining marriage laws, using Romer v. Evans as the precedent. I think you’d be much more likely to get conservative Justices to sign onto such a decision if it did not explicitly overturn DOMA. The judge, in his questions for Olson/Boies, seemed to be asking for grounds to do just that – rule without touching DOMA.

It could be yet another smart move by this team. In the meantime, I think we should all be sending Scalia gifts of steak and fatty foods.