9th Circuit Perry v. Schwarzenegger hearing: analysis and discussion

December 07, 2010

Posted by Adam Bink on prop8trialtracker.com:

"Well, that was something. Some brief reactions:

"(a) Cooper’s constitutional argument turned almost entirely on the word itself- marriage- and as Brian noted in our live-blog thread, that this word is simply special.

"(b) Very interesting and promising that Judge Hawkins seemed to ridicule Cooper’s discussion of the Romer v. Evans case when Cooper said that case was far-reaching and different, interjecting, if you take away a bunch of rights, it’s not okay, but if it’s one right [marriage], then it’s ok? Cooper could not square the circle that, to him, Amendment 2 was a noxious and over-the-top move by the voters of Colorado, but taking away the fundamental freedom to marry from same-sex couples is fine by him, and Hawkins seemed to note that.

"(c) Tyler was terrible. Couldn’t explain why the clerk herself wasn’t there, made numerous factual mistakes, unprepared to respond to challenges from the judges.

"(d) Ted Olson hammered home repeatedly, and without interruption that the US Supreme Court has never said marriage is just between man and woman when ruling in the context of prisoners, contraception, divorce, other cases that marriage is (a) liberty (b) privacy (c) association (d) identity. He noted the Supreme Court said this 14 different times. That, along with Olson’s discussion points that (a) even if raising children in same-sex households were a problem, the remedy is not to deny the freedom to marry to same-sex couples, and (b) as Brian put it, you can’t wall off a right because children shouldn’t be exposed to sexuality… it just doesn’t stand up to even the lowest level of rational basis- seemed to be the most poignant in the entire day.

"I will be posting further reactions from others throughout the afternoon, as well as the scene from outside the courtroom.

"What are your thoughts on how it went?

"Update: Excerpt of a statement from Freedom to Marry’s Evan Wolfson:

'Earlier this year, the anti-gay forces behind California’s Prop 8 were yet again shown to have no evidence and no good arguments that would stand up in the light of a courtroom, under oath and cross-examination. Lacking any serious expert witnesses or facts to justify marriage discrimination, they fought to block cameras from the courtroom and actually asserted that they ‘don’t have to have evidence.’ After Judge Walker conclusively found that they had failed to justify stripping the freedom to marry away from California’s gay couples, the anti-gay groups swiftly took to attacking the judge.

'Today, unable to hide, these same opponents of equality stood before appellate judges and, this time, cameras, and all the world could see what a majority of American people have already come to understand: there is no good reason for continuing to exclude committed loving couples from the legal commitment of marriage. When the gavel came down, it was clear yet again that the anti-gay forces still have nothing. Their case is, in Lincoln’s words, ‘as thin as the homeopathic soup made by boiling the shadow of a pigeon that starved to death.’'

"Update 2: Karen Ocamb has a good and quick summary of the pre-trial rally.

"Update 3: Anti-equality folks outside the courthouse:

... "Update 11: David Boies and Chad Griffin are now live on Hardball. Boies makes the point that there’s no useful societal point to banning s-s marriages. Griffin talks about 'state-sanctioned discrimination' and how it gives license to other forms of discrimination. Matthews asked if Boies’ argument would have been credible in the early days of our republic. Boies responds that (a) The bias we see today against gays and lesbians is a product of the last 100 years (b) originally, this country was 'we the white male propety-owners'. Griffin in response to a question from Matthews says this should not be up to a vote of the people. Matthews asks about possibility of getting Scalia-types on this. Boies says 'we’re not giving up on any of the justices b/c if you look at Ted and myself, it’s hard to find two on the most opposite poles of the political spectrum' [paraphrasing]. Griffin briefly discusses inter-racial marriage. Matthews says thanks, they sign off. They both did very well."

See video below: