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Today saw the closing arguments in Perry v. Schwarzenegger, the trial to determine the constitutionality of Proposition 8. Or, in the words of the Twitter feed of the anti-equality National Organization for Marriage:

It's over.

And nobody should be happier than they--because all efforts to be objective aside, the closing argument from the defendant-intervenor (the side supporting Proposition 8) was simply bad. Actually, bad isn't the right word for it. I think "steaming pile of irrational, circular bull manure" might be more descriptive. For a snippet, let's go to the FireDogLake liveblog by Marcy Wheeler. In this section, "Cooper" is the name of the attorney for the defendant-intervenor, and Walker is the presiding judge:

Cooper: To whatever extent children born into this world w/o this union, by both parents that brought them into this world, a host of very important and very negative social consequences arise. THe purpose of marriage is to provide societal approval to that marriage and to the children. Marriage is a license to cohabit and produce legitimate children.

Walker: State does not withhold license of marriage from people who cannot produce children of their own. Are you suggesting state should?

Cooper: it is by no means a necessary requirement to fulfilling state’s interest in naturally procreating relationships.

Walker: Then the state must have an interest apart from procreation.

COoper: It rationally extends state’s interest to channel into marriage all potentially procreative relationships, as well as all male-female relationships. It furthers the state’s interest. Isn’t a requirement that state insist that people who get married be able to have children. Case after case has agreed that all states haven’t required procreation in no way eliminates procreative purpose. TO enforce that, would have to be some kind of fertility test, some kind of pledge, some kind of post-marriage enforcement.

The difficulty of Cooper's position here is striking, and I highly encourage a read-through of the rest of Cooper's "argument" from the FireDogLake liveblog, or from the Courage Campaign's Prop 8 Trial Tracker.

Cooper's language here is fascinating. He argues that it is in society's best interest to "channel" couples into marriage for the purpose of stable procreation. And he may even have a point, but the problem is that his entire point is completely irrelevant to the constitutionality of denying couples couples who are not capable of procreating naturally and must be adoptive parents the rights to marriage. And Judge Walker is more than happy to hoist Cooper by is own petard on this point. As liveblogged by Rick Jacobs:

What’s the threat to society if people seek medical assistance to have children?

C: It’s the irresponsible procreation – the procreation that comes about casually, unintentionally. The opposite sex couple (but infertile couple) or a same sex couple cannot unintentionally procreate; however, the opposite sex infertile couple being allowed to marry is not against the core purpose of marriage. If that couple gets married – all of the social norms that come with marriage – that encourage fidelity, operate to society’s benefit, in the sense that the fertile member of that couple will be less likely to engage in sexual relationships with third parties that lead to irresponsible procreation.

J: Why don’t those same things apply to same sex couple – considerations like taking care of one another, loving one another etc., why don’t those same considerations apply?

C: We’re not suggesting that there is a distinction between gay and opposite sex couples with respect to those considerations, but there is a distinction in terms of procreation. Neither partner with respect to the same-sex couple represents a concern about irresponsible procreation with a third party. The considerations that you have identified are considerations that the state and its voters have taken account of, respected, credited and honored by creating the parallel institution of domestic partnership.

J: Where does it show that the procreative function was a rationale for voters in upholding Prop 8? Where is that in the evidence?

C: The Yes on 8 position specifically references that marriage is a fundamental relationship in society and in the voter information guide itself.

Let's recap this thread between Cooper and Walker, because it's just embarrassing. Cooper says that opposite-sex couples who can't procreate get the ancillary benefits of marriage, like stability, loving commitment, etc. Walker asks: well, don't same-sex couples get those same things through marriage? And Cooper responds: "but they can't procreate!" And there we are, back at square one. It's an embarrassingly dreadful performance from a legal point of view, because Cooper has completely avoided the question of why it's constitutional to deny same-sex couples the ancillary benefits of marriage that Judge Walker outlined.

Ted Olson gave the closing argument for the pro-equality side. And as much as you may wish to hate him for arguing for Bush in Bush v. Gore, he's brilliant. As liveblogged by Brian Leubitz at the Trial Tracker, Olson gave a fascinating response to the concept of restricting marriage rights by procreative function:

O: Now a word on pro-creation. What if the state changes its mind? There are governments that have ruled that too much procreation is bad. If CA so decides in 10 years, would the state have the right to cut off marriage? No.

And more importantly: the entire basis of the Defendant-Intervenor's case hinged on trying to prove that there was a rational basis for denying the rights of same-sex couples to marry. The angle they chose was that of procreation--after all, "it'll send the signal that it's okay for your kids to be gay!" is not a valid legal argument. And Olson hit that one out of the park too:

So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation? They are not a threat to us. What is one single bit of evidence if you accept the channeling function if you accept the right that the State of California has the right to do that and I do not this is an individual constitutional right and every Supreme Court decision says it’s the right of the person. It’s not the right of the State of California to channel us into certain activities or in a certain way.

The bottom line is, our side won today. Whether or not Judge Walker rules our way is something we'll find out in a few weeks. But I'm feeling something I don't usually feel regarding the outcome of court cases like this: a tiny bit of confidence.

Originally posted to Daily Kos on Wed Jun 16, 2010 at 06:10 PM PDT.

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Comment Preferences

  •  I love when anti-gay activists bring up (34+ / 0-)

    procreation.

    It's so...delightful...to watch their heads explode trying to explain why the ability to procreate should be a factor in marriages for same-sex couples and not opposite-sex couples. It usually shuts them up and sends them in circles. :)

  •  If proponents of 8 win, let it be a QBVII moment (6+ / 0-)

    where they win on the law and lose in public opinion.

    Is the video camera the only device that worked?

    by Inland on Wed Jun 16, 2010 at 06:15:41 PM PDT

  •  Actually (0+ / 0-)

    I hate Olsen because of Whitewater & nothing will convince me that he's brilliant after that.

  •  We can hope, but I always remember the (2+ / 0-)
    Recommended by:
    whaddaya, DannyX

    verdict in "Kramer vs. Kramer": you think you have the best arguments on your side, but they don't mean
    patad' (potatoes, as my father used to say in Neapolitan dialect) sometimes.

  •  I can't even follow the logic (21+ / 0-)

    of the pro-Proposition 8 side. Are they saying marriage is akin to a livestock breeding program? How sanctified is that.

    You don't bring a knife to a gunfight and you don't bring a chicken to the doctor.

    by beltane on Wed Jun 16, 2010 at 06:18:56 PM PDT

  •  Lawdy! (19+ / 0-)

    Cooper's argument is embarrassingly awful.  Is that guy a lawyer?  My children marshalled stronger, more logical arguments in the cereal aisle.

    "Dogs' lives are too short. Their only fault, really." -- Agnes Sligh Turnball

    by EyeStreetMom on Wed Jun 16, 2010 at 06:19:32 PM PDT

  •  I'm Glad My Marriage Doesn't Depend on Republican (3+ / 0-)
    Recommended by:
    Shadan7, Cassandra Waites, whaddaya

    judges being rational.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Wed Jun 16, 2010 at 06:20:35 PM PDT

  •  Procreation -- incredible (7+ / 0-)

    how many humans does that eliminate from the possibility of being married?  Me -- I haven't wanted to be a mother since I was 16 -- I'm almost 60 and haven't changed my mind.  Infertile couples -- who have to go through the agony of not being able to parent.  Folks who fundamentally can't afford children.

    Besides that, the Prop 8 attorney was barely coherent.

    Kudos to Ted Olsen.

    No witchcraft, no enemy action had silenced the rebirth of new life in this stricken world. The people had done it themselves. -- Rachel Carson

    by gchaucer2 on Wed Jun 16, 2010 at 06:21:11 PM PDT

  •  Wow. Just wow. (16+ / 0-)

    It’s the irresponsible procreation – the procreation that comes about casually, unintentionally.

    That sounds like an argument against straight people having sex for any reason other than having children.  And not at all an argument about gay marriage.

  •  Its not this level of federal court that worries (10+ / 0-)

    me.

    Its the S.Ct. that worries me.

    •  Don't be. (3+ / 0-)
      Recommended by:
      mmacdDE, Cassandra Waites, whaddaya

      It is unlikely that it will reach the Supreme Court if the California Supreme Court rules that it is against the California Constitution.  As the U.S. Supreme Court would have no jurisdiction on making a ruling on that basis except to find that the California Constitution violates the U.S. Constitution in giving citizens of California more rights than the U.S. Constitution does and that would be an extremely unlikely ruling as any similar such case has never been ruled or intimated by any previous Supreme Court ruling.  Quite the opposite.  Not to mention that the 10th Amendment actually explicitly states that States can expand rights to their citizens that are not enumerated within the the U.S. Constitution.

      A person's character is measured by how they treat everyone. Not just your pet group.

      by Tempus Figits on Wed Jun 16, 2010 at 06:53:45 PM PDT

      [ Parent ]

      •  What? (0+ / 0-)

        This case is in federal court and says that Prop 8 violates the federal constitution.

        One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!)

        by AUBoy2007 on Wed Jun 16, 2010 at 07:00:43 PM PDT

        [ Parent ]

        •  I could have sworn it was the California... (0+ / 0-)

          Supreme Court that was making the ruling on it.  I can understand why activists may have wanted it to apply to the entire Country, but I wouldn't have taken that risk on the case as that leapfrogged over a step in getting the law overturned.  

          Chances are, that SCOTUS will refuse to hear the case as it would open to many cans of worms for the conservatives on the court to be comfortable with.  The principal arguments presented would force a ruling that would invalidate the majority of current marriages as well as criminalize out of wedlock sex which the Supreme Court has ruled many times in the past can not be criminalized.  Not to mention that it has had quite a few anti-sodomy laws ruled as unconstitutional in its history.  Such a reversal would cause such an uproar that would make Citizen's United look milquetoast.

          A person's character is measured by how they treat everyone. Not just your pet group.

          by Tempus Figits on Wed Jun 16, 2010 at 07:20:57 PM PDT

          [ Parent ]

          •  California Court already ruled. (0+ / 0-)

            They said it wasn't inconsistant with the California Constitution to have the vote on Prop 8, and that they had to respect the results, but the marriages already done wouldn't be invalidated.

            This case then arose saying that Prop 8 is unconstitutional under the federal constitution.

            I forsee the Supreme Court taking the case for two reasons: 1) I can see the 9th Circuit ruling Prop 8 was unconstitutional, and there's no way the SC is going to let that be the precedent in one circuit and not all (regardless of whether the SC ultimately upholds Prop 8 or not) and 2) Only votes are necessary to take on a case, so I can see the four "liberal" justices taking it up in the hopes of getting Kennedy on board.

            One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!)

            by AUBoy2007 on Wed Jun 16, 2010 at 07:28:05 PM PDT

            [ Parent ]

            •  Most mainstream gay rights groups agreed, Tempus (0+ / 0-)

              They thought it is too early to go to federal court and risk losing at the Supreme Court.  Boies and Olson did this on their own, without the mainstream gay legal groups.

              •  It's now or not for a long time. (0+ / 0-)

                There's a good chance they can net Kennedy and have a win.

                The problem is that even with 8 years of Obama, there's no gaurentee the ideological make up of the court will change.  We'd then have hold all our hopes for a Dem to win in 2016, otherwise there's a good chance Kennedy will be replaced with a conservative in the mold of Scalia/Roberts/Alito/Thomas.  Then we've really lost the court for a generation or more.

                One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!)

                by AUBoy2007 on Wed Jun 16, 2010 at 07:38:08 PM PDT

                [ Parent ]

                •  Good point. (0+ / 0-)

                  I hadn't thought about this being a better time than later.  It's sad to think that Kennedy may be as good as we'll get for the foreseeable future.

                  •  Scalia is 74 (0+ / 0-)

                    So there's at least something of a chance he'll be off the court during the Obama Administration.

                  •  Kennedy (1+ / 0-)
                    Recommended by:
                    Cassandra Waites

                    Justice Kennedy wrote the majority opinions in both Romer v. Evans and Lawrence v. Texas, the two cases Olsen was repeatedly citing yesterday.

                    I'm not sure what all the hand-wringing about him is.  I'd say there's a greater than 75% chance he's on our side.

                    In fact, Justice Roberts was pro-bono counsel for the anti-Amendment 2 side in Romer, so there's a chance he's also on our side.  So much so that the Family Research Council has already declared him to be "opposed to traditional marriage".

                    This vote may be 6-3 in our favor.

                    •  Even Scalia (1+ / 0-)
                      Recommended by:
                      Cassandra Waites
                      In the Lawrence ruling acknowledged that if the court opened the door on a 14th equal protection basis, it would lead to legal recognition of same-gender marriage.

                      cheers,

                      Mitch Gore

                      Who is a Tea Partier? Someone who listens to Glenn Beck. Who's an anti-Tea Partier? Someone who understands Glenn Beck

                      by Lestatdelc on Thu Jun 17, 2010 at 11:25:01 AM PDT

                      [ Parent ]

                      •  Yeah, I know. (0+ / 0-)

                        And he tends to be somewhat consistent.  He may be a wild card.

                        Lately, the Court's been a bit unpredictable.  It's not falling down neat, ideological lines.  The Citizens United decision, for example, is a complete mess, and the 7-2 immigration decision on Monday didn't cleave down ideological lines, either.

              •  Harvey Milk also did a lot for our community (0+ / 0-)

                without involving the "mainstream gay groups," because they were too afraid to move on things when they needed to happen.

                There is an art to teaching that is independent of the subject matter. - daveinojai

                by Killer of Sacred Cows on Fri Jun 18, 2010 at 09:28:53 PM PDT

                [ Parent ]

            •  Bonk... (0+ / 0-)

              Now I remember that and also why I forgot it in this pretext.  They didn't on the Constitutionality of the law, just the narrow precept of whether it was a true amendment to the Constitution of California or just a statute.  Since they ruled it was actually an amendment (based upon the wording of the original petition and intent of the petition) it was automatically a Constitutional Law within the Californian Constitution.

              A person's character is measured by how they treat everyone. Not just your pet group.

              by Tempus Figits on Thu Jun 17, 2010 at 01:44:36 AM PDT

              [ Parent ]

      •  I hope you're right (0+ / 0-)

        I never thought of it that way when I commented below that the Supremes will probably find a way to overturn a good decision. I still don't trust them but your reasoning seems correct. But of course they found a way to put Bush in office.

      •  This case is already in the federal courts. (4+ / 0-)

        The California Supreme Court doesn't hear appeals from the federal courts, only lower state courts.  When this case is appealed (and it will be), it will be to the federal Ninth Circuit Court of Appeals and then to the federal Supreme Court.  

        The California Supreme Court already had its say on Prop 8, and isn't involved in this case, which argues that Prop 8 violates the federal Constitution.

  •  Great to have the breakdown. (7+ / 0-)

    It matter so much to be able to have rational arguments, and for this issue to literally have its day in court.

    There is no rational legal basis for Proposition 8. This is a civil rights issue, straight up.

    And I'm glad for Olsen's argument here, irrespective of his role in Gore v Bush.

    We should be focusing more on the merits of the arguments, every single time, not the bias who we like or don't like walking into the room.

    More of that would help us, here.

    The sleep of reason brings forth monsters.

    by beijingbetty on Wed Jun 16, 2010 at 06:22:57 PM PDT

  •  asdf (5+ / 0-)

    Dante:

    I hope you're right. The Prosecution on this case has been brilliant.

    But remember - you are looking at it from a rational perspectice.

    Since when has 'rationality' ever had anything to dow ith this issue - or with most legislation or judicial output on this matter? :D

    I am now officially BOYCOTTING all CLEAN ENERGY SPONSORS - until I am no longer forced to watch their commercials on DailyKOS!!

    by GayIthacan on Wed Jun 16, 2010 at 06:24:02 PM PDT

  •  Reading through the full arguments (5+ / 0-)

    Cooper basically seems to be arguing more that we should take children away from unmarried straight couples and have them adopted by married gay couples.  Epic fail.

    •  And... (3+ / 0-)
      Recommended by:
      skrekk, Shirl In Idaho, whaddaya

      That given an opposite sex couple where one of the partners is fertile while the other is not, marriage rights should be denied.

      Why?  Because marriage exists only for breeders.  Period, end of line.

      Amazing how ridiculous it all sounds when stated this way, separated from the whole "sanctity" and "tradition" BS argument.

      "Don't ride in anything with a Capissen 38 engine. They fall right out of the sky." -- Kaywinnit Lee Frye

      by Technowitch on Wed Jun 16, 2010 at 06:35:54 PM PDT

      [ Parent ]

  •  Cooper can kiss my a** (5+ / 0-)

    I can't stand people that label children born out of wedlock "illegitmate." What a disgusting word and mental burden to place on someone throughout their life. To me, it's as bad as n****r.

    There has never been a protracted war from which a country has benefited. The supreme art of war is to subdue the enemy without fighting. - Sun Tzu

    by OHeyeO on Wed Jun 16, 2010 at 06:35:53 PM PDT

    •  And to add to the stupid, (5+ / 0-)

      it's meaningless in a legal context in California. All children have inheritance rights in California, regardless of the marriage status of their parents at the time of birth.

      So "illegitimate children" is a meaningless phrase in any courtroom in this State.

      --Shannon

      "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
      "Dissent is patriotic. Blind obedience is treason." --me

      by Leftie Gunner on Wed Jun 16, 2010 at 07:09:46 PM PDT

      [ Parent ]

      •  I think that's true in most places now (0+ / 0-)

        Don't most states require the mother to put the name of the father on the birth certificate? If there's any question, a DNA test can be done to PROVE who the father is.

        And if the child is yours, they become your heir. Marriage or not. IIRC, the mother can also sue for child support in most places.

        This isn't the 1800s, paternity is pretty cut and dried now.

    •  Obviously not (0+ / 0-)

      I can't stand people that label children born out of wedlock "illegitmate." What a disgusting word and mental burden to place on someone throughout their life. To me, it's as bad as n****r.

      Then why do you say n****r, but spell out faggot or illegitmate?

      Minority rights should never be subject to majority vote.

      by lostboyjim on Thu Jun 17, 2010 at 09:53:05 AM PDT

      [ Parent ]

    •  It's also ridiculous (0+ / 0-)

      Considering Christians beleive that any marriage not done in their particular sect's cathedral/church/mudhut is invalid anyway that'd mean that everybody not from X church (and X changes depending on the speaker) is illegitimate.

  •  But, but, but.......... (7+ / 0-)

    Where's the argument that gay marriage threatens the sanctity of Rush Limbaugh's fourth nuptials?

    Or that gay marriage will further encourage otherwise heterosexual, married males such as Ted Haggard or George Rekers to pursue "Rentboys"?

    What the hell kind of argument was Cooper making?  Jeesh!

    "You can't put a civil rights issue on the ballot and let the people decide. .... . If you left it up to the people, we'd have slavery......" ~ Jesse Ventura

    by rontun on Wed Jun 16, 2010 at 06:37:56 PM PDT

  •  There is no way Prop 8 will win (3+ / 0-)
    Recommended by:
    Technowitch, whaddaya, ahumbleopinion

    I skimmed the questions the judge submitted to each side before closing. The defense very little substantive legal argument- it really did boil down to procreation and marriage, which means therefore, rationally in their view, procreation MUST follow state sanctioned marriage or there is no reason for it. The plaintiffs' answers were chock full of actual case law and a logical application of discrimination. The judge keeps using the word "rational" and I think the only rational conclusion he can draw is to strike down prop 8

    "I'm not worried. If there's something bad out there, we'll find, you'll slay, we'll party!" -- Xander

    by Finnegan05 on Wed Jun 16, 2010 at 06:38:16 PM PDT

    •  But then there's Roberts' SCOTUS (1+ / 0-)
      Recommended by:
      whaddaya

      Does anywhere here actually believe with the current makeup of the U.S. Supreme Court that they would uphold a ruling striking down Prop 8?

      We got almost no progressives left, and sure as hell can't count on any of the conservatives to do the right thing and actually pay attention to law and precedent.

      I'm not holding my breath... or making plans to take my wife back to California to try yet again to marry legally.

      "Don't ride in anything with a Capissen 38 engine. They fall right out of the sky." -- Kaywinnit Lee Frye

      by Technowitch on Wed Jun 16, 2010 at 06:42:57 PM PDT

      [ Parent ]

      •  It depends (5+ / 0-)

        This is a matter of the application of civil rights law and the legal argument for  discrimination is the strongest I have ever seen it. The opposite is true for the other side. Kennedy can occasionally be surprising. They could rule on something as narrow as the proposition did discriminate because it is unconstitutional for individual rights to be left popular vote then bounce it back to the state.

        "I'm not worried. If there's something bad out there, we'll find, you'll slay, we'll party!" -- Xander

        by Finnegan05 on Wed Jun 16, 2010 at 06:56:12 PM PDT

        [ Parent ]

      •  That is what I am more iffy on.. (0+ / 0-)

        Here I'm sure we will squeeze out a win but SCOTUS? Not very sure.

        "Some men look at things the way they are and ask why..I dream of things that never were and ask why not?"- Robert Kennedy

        by hippiechick13 on Wed Jun 16, 2010 at 07:05:17 PM PDT

        [ Parent ]

        •  Why not so sure? (1+ / 0-)
          Recommended by:
          Cassandra Waites

          Here's the breakdown as I see it:

          1. Breyer: Oppose Prop 8 (generally liberal, voted for both Romer v. Evans and Lawrence v. Texas)
          1. Ginsburg: Oppose Prop 8 (generally liberal, former ACLU counsel, voted for both Romer v. Evans and Lawrence v. Texas)
          1. Sotomayor: Oppose Prop 8 (generally liberal)
          1. Kagan (assuming she gets confirmed): Oppose Prop 8 (generally liberal)
          1. Kennedy: Oppose Prop 8 (generally moderate, authored the majority opinion in both Romer v. Evans and Lawrence v. Texas)
          1. Roberts: Oppose Prop 8 (generally conservative, did pro-bono work on pro-equality side for Romer v. Evans)
          1. Alito: Support Prop 8 (generally conservative)
          1. Thomas: Support Prop 8 (generally conservative, voted against both Romer v. Evans and Lawrence v. Texas)
          1. Scalia: Support Prop 8 (generally conservative, voted against both Romer v. Evans and Lawrence v. Texas)

          Frankly, I foresee a 6-3 vote against Proposition 8, if it comes to the current Supreme Court.

          •  It shoudl be noted that Thomas voted against (1+ / 0-)
            Recommended by:
            Cassandra Waites

            in Lawrence because that decision was based on a right to privacy, which he of course, thinks doesn't exist in the Constitution at all since that is also what underpins the Roe v Wade decision.

            It is hard to say definitively where he would fall on a 14th equal protection argument. Not that I would hold my breath mind you, but it is a bit murkier.

            cheers,

            Mitch Gore

            Who is a Tea Partier? Someone who listens to Glenn Beck. Who's an anti-Tea Partier? Someone who understands Glenn Beck

            by Lestatdelc on Thu Jun 17, 2010 at 11:31:37 AM PDT

            [ Parent ]

      •  There is no reason for SCOTUS to hear the case. (0+ / 0-)

        If it is based upon the California Constitution the only thing that the SCOTUS could rule on is whether the California Constitution overstepped the U.S. Constitution in guaranteeing certain rights.  The only other possibility is to claim that the rights of heterosexuals was being violated by requiring the allowance of GLBTs to get married and again that is unlikely that the SCOTUS would even agree to hear it.

        A person's character is measured by how they treat everyone. Not just your pet group.

        by Tempus Figits on Wed Jun 16, 2010 at 07:06:41 PM PDT

        [ Parent ]

        •  No. This is a federal case. (3+ / 0-)
          Recommended by:
          AUBoy2007, wsexson, hippiechick13

          It's based on the federal bill of rights, not the California Constitution.

        •  I stand corrected, above. (0+ / 0-)

          I had missed that the California Supreme Court made its ruling already and thought it hadn't been heard yet.  I still feel its unlikely that SCOTUS will agree to hear the case when it reaches them unless it is to rule anti-gay marriage laws unconstitutional as the precedents that would be set would extend well past just gay marriages but counter to nearly every ruling the SCOTUS has made in the past regarding sexual freedoms that citizens have.

          A person's character is measured by how they treat everyone. Not just your pet group.

          by Tempus Figits on Wed Jun 16, 2010 at 07:25:48 PM PDT

          [ Parent ]

          •  But then.. (0+ / 0-)

            if the 9th agrees to hear it, and agrees with Walker (who will overturn), then just because the SCOTUS doesn't hear it doesn't mean there isn't nationwide impact.  Every case in the land can and will reference this case, with notation that SCOTUS agreed with it (by not agreeing to take the case, they de facto agree with the lower court).

            Minority rights should never be subject to majority vote.

            by lostboyjim on Thu Jun 17, 2010 at 09:59:34 AM PDT

            [ Parent ]

        •  No. this is a federal case in federal court (0+ / 0-)

          It goes to the 9th circuit next.

          The CASC agreed that Prop 8 was valid.  Now it is in the CONSTITUTION of CA. By definition, it is constitutional.

          Minority rights should never be subject to majority vote.

          by lostboyjim on Thu Jun 17, 2010 at 09:57:23 AM PDT

          [ Parent ]

      •  I do (2+ / 0-)

        The swing vote here is Kennedy, and he was the author of Lawrence v. Texas.  I think we have a very good chance indeed.

        Minority rights should never be subject to majority vote.

        by lostboyjim on Thu Jun 17, 2010 at 09:55:36 AM PDT

        [ Parent ]

      •  Roberts's SCOTUS? (1+ / 0-)
        Recommended by:
        Cassandra Waites

        First off, Justice Roberts did pro-bono work for "our side" in the Romer v. Evans case Ted Olsen was citing yesterday.  That doesn't necessarily indicate his leanings, but one shouldn't make assumptions simply because George W. Bush appointed him or he's "one of the conservatives".  If it goes up to this SCOTUS, he's going to have legal briefs he himself authored quoted at him as case law for our side, and everything he said in his confirmation hearings suggested he's a strong believer in stare decisis.  I'd say there's at least a 50% chance he votes against Prop 8, if not more.

        Furthermore...  What Roberts's SCOTUS?  He's the weakest Chief Justice in my entire lifetime.  The Court is all over the map on everything, and Kennedy--not Roberts--appears to be the one in charge.

        Even further, Justice Kennedy not only sided with Romer v. Evans and Lawrence v. Texas, he wrote those opinions.

        You can't just look at the SCOTUS as "progressive v. conservative".  That does you no justice in the end, and it makes it impossible to accurately predict what the Court will actually do.  Every decision will appear to be a surprise (like Monday's 7-2 vote upholding immigrants' rights).

  •  I wish the word "procreation" weren't being used (2+ / 0-)
    Recommended by:
    Cassandra Waites, whaddaya

    in court; I was taught in religion class "procreation" meant God was overseeing the whole process, that reproduction could not quite be creation since God had to be involved.  Plants and non-human animals reproduced; humans, with God's help, procreated.

    The dictionaries seem to regard reproduction and procreation as similes. I wish the pious overtones of "procreation" had been avoided.

  •  Bubble: meet dart. (2+ / 0-)
    Recommended by:
    Tunk, whaddaya

    Sorry, I can see this one coming a mile away.

    Judge Walker will rule in favor of Claimant, overturning Prop 8.

    The conservatives will use this as a reason to promote a Constitutional Amendment.

    Since most states have already voted/decided to ban gay marriage, the route to approval of a Constitutional Amendment by these states is well-paved.  All that has been missing is the necessity for it, and now they will have that.

    Don't open any champagne just yet.

    p.s., the teabaggers (ya know, the ones who say they are all about individual rights & get govmint off my lawn?) -- they will be more than happy to get their govmint all up in our lawns.  And Dems will be afraid to touch us with a ten-foot pole.

    "Don't bring that horse in here!" -- Cassandra

    by tc59 on Wed Jun 16, 2010 at 06:42:11 PM PDT

  •  Cooper is pathetic. It's as if (5+ / 0-)

    Sarah Palin and Michele Bachmann were providing the 'legal help'. The guy should be cited for contempt of court for being such a damn fool.

    I don't how this 'defense' can stand.

  •  This exchange is priceless. (10+ / 0-)

    Cooper: Mr. Blankenhorn brought forward these authorities.  You don’t have to have evidence from these authorities. The cases.

    Walker: I don’t have to have evidence?

    ...further down:

    Walker: If so, why in this case did you present but one witness? ANd I think it’s safe to say his testimony was equivocal.

    Cooper: We didn’t need his testimony.

    Walker: I guess that goes back to the premise that you don’t need evidence.

  •  I'm hopeful (3+ / 0-)
  •  Cool. I'm glad the pro-8 lawyers were so (4+ / 0-)

    incompetent...or should I say impotent...

    Once in a while you get shown the light, in the strangest of places if you look at it right.

    by darthstar on Wed Jun 16, 2010 at 06:52:22 PM PDT

  •  sounds good but (2+ / 0-)
    Recommended by:
    apimomfan2, whaddaya

    even a victory here could be only a momentary one. I fully expect the Roberts court to nullify any decision for gay marriage.

    •  Depends on when it gets there, of course. (1+ / 0-)
      Recommended by:
      Cofcos

      But the swing vote on the court today (Kennedy) has joined the pro-gay equality majority on the last two big gay rights cases (Romer vs. Evans and Lawrence vs. Texas).  I wouldn't be too surprised if he did it a third time when this case goes to Washington.

    •  Listen (0+ / 0-)

      If we can repeal this thing in 2012, there's a good chance it will never get before the Roberts Court.  Just keep that in mind.  

      •  Yes. (2+ / 0-)
        Recommended by:
        celdd, Cassandra Waites

        But I think that with the way Walker is likely to write this decision, we may WANT this to be The Moment.  This is our Scopes Trial.  We have amazing Plaintiff, bufoonish Proponent, and a good judge.  We can open gay marriage for the nation here!

        Minority rights should never be subject to majority vote.

        by lostboyjim on Thu Jun 17, 2010 at 10:03:51 AM PDT

        [ Parent ]

  •  Why the courts? (1+ / 0-)
    Recommended by:
    whaddaya

    Why not work to bring it to a vote again rather than rely on a court decision that overturns a referendum? This seems to be an undemocratic solution.

  •  I love this (8+ / 0-)

    It's a great argument against str8 people being able to f*ck like bunnies and breed.

    Meanwhile, as a God-fearing, Mass-going queer mom of a very much wanted, planned, and NOT "irresponsibly procreated" child (who is almost certainly straight, btw) - I guess we're the real winners here, right?

    Sounds like the strongest argument in the world for same-sex marriage, frankly. We don't have "irresponsibly-procreated" children. When we rear 'em, it's taken a lot of time, planning, and in many cases, a significant financial investment as well. If the pro-8 people are going to argue on the basis of avoiding "irresponsible procreation", then they should be pleading for same-sex marriage.

    What doofuses. Their arguments just don't make sense in 2010. Maybe in 1953... I dunno.

    "I like to go into Marshall Field's in Chicago just to see all the things there are in the world that I do not want." M. Madeleva, C.S.C.

    by paxpdx on Wed Jun 16, 2010 at 06:58:33 PM PDT

    •  (Oh - and for the record...) (8+ / 0-)

      The whole "God-fearing, Mass-going" stuff is there because it matters to them. I'm all in favor of people raising kids with values and ethics, but I'm not stoopid enough to think that any one (or more) tradition has any corner on values and ethics.

      The fact that kids of same-sex parents are invariably wanted - not just possibly-unintended byproducts of sex - that's lost on those people.

      Yeah - this just may turn out OK. It's just a step, but today was a pretty good one, methinks.

      "I like to go into Marshall Field's in Chicago just to see all the things there are in the world that I do not want." M. Madeleva, C.S.C.

      by paxpdx on Wed Jun 16, 2010 at 07:01:29 PM PDT

      [ Parent ]

      •  Actually (0+ / 0-)

        I think much of the crowd of which you speak seems to prefer that children be unwanted.

        •  Good point. (2+ / 0-)
          Recommended by:
          Cali Scribe, Cassandra Waites

          And as someone who is ... well, I guess I can say "philosophically opposed to the need for abortion" - although I acknowledge that it is there (and believe it must remain so) - I tend to think that the actions of those folks do little more than increase the incidence of that which they consider to be abhorrent.

          Maybe if they cared about life as much after it was born as they claim to beforehand, it'd be a different place.

          "I like to go into Marshall Field's in Chicago just to see all the things there are in the world that I do not want." M. Madeleva, C.S.C.

          by paxpdx on Wed Jun 16, 2010 at 08:06:50 PM PDT

          [ Parent ]

  •  I wonder if Cooper believes his argument (1+ / 0-)
    Recommended by:
    Cassandra Waites

    has merit or if he's just being an attorney doing the best he can in a no-win situation. I'm leaning towards the former.

    Unapologetically pro-citizen. Not anti-corporation just very pro-citizen.

    by CanYouBeAngryAndStillDream on Wed Jun 16, 2010 at 07:12:47 PM PDT

  •  What's funny is (2+ / 0-)
    Recommended by:
    Cassandra Waites, DannyX

    it is not immediately clear from NOM's tweets or their prop 8 page that they are anti-equality.

    They know, I think, there is no logical force behind their arguments.

    Adopt a Shelter Dog!
    Don't blame me, I voted for Lizard People!

    by psycho liberal on Wed Jun 16, 2010 at 07:20:00 PM PDT

  •  Gays will save the world... (2+ / 0-)
    Recommended by:
    commanda, Cofcos

    and i'm not gay. TOO many fucking people, people. Over procreation is the scourge of the planet. Those that don't procreate should be given a fucking tax break and we should eliminate tax deductions on children IMMEDIATELY.

  •  The core purpose of marriage is KINSHIP (3+ / 0-)
    Recommended by:
    skrekk, Cassandra Waites, DannyX

    Civil marriage means legal kinship, nada mas.  Since the dawn of time.  Reference Terri Schiavo.

    •  Exactly (1+ / 0-)
      Recommended by:
      Cassandra Waites

      Which is why the whole legalize incest 'you can marry your sister' slippery-slop arraignment is pure bullshit. Siblings already have an established legal kinship. If anyone wants to grant more rights, protections and responsibilities to legal sibling relationships, then let them take up the fight for the merits on their own. But it 100% does not at  all relate to the issue of legal marriage which is, as you note, establishing legal recognition of kinship between to previously unrelated consenting adults.

      This is about ending gender discrimination in legal marriage (i.e. establishing legal recognition of kinship between to previously unrelated consenting adults).

      cheers,

      Mitch Gore

      Who is a Tea Partier? Someone who listens to Glenn Beck. Who's an anti-Tea Partier? Someone who understands Glenn Beck

      by Lestatdelc on Thu Jun 17, 2010 at 11:45:16 AM PDT

      [ Parent ]

      •  You got it (0+ / 0-)

        Hard to believe this hasn't been made clear.  Legal kinship is a definition of marriage that spans human history and human cultures.  The tradition of marriage has been used to unite families, tribes, kingdoms, empires.  It is really so simple.  It also clarifies why polygamy can't be legal - you can only have one "next of kin".

  •  our side has not won anything (0+ / 0-)
    the will of the voters went against us(this fight goes on);if we lose at this court level, we should realize that we can still win BUT we can't think this is an easy fight(if we lose races like this in cali, we have NO HOPE in my neck of the woods, here in the south)

    i don't mind if arlen remains the senior senator from pennsylvania IF the voters in the DEMOCRATIC primary choose him BUT until then...........

    by primaryarlen on Wed Jun 16, 2010 at 08:35:31 PM PDT

  •  Cooper got his ass handed to him (1+ / 0-)
    Recommended by:
    Cassandra Waites

    ...by Olsen and Judge Walker.

  •  I don't want to rain on everyone's parade here (0+ / 0-)

    But the arguments of the Defendant-intervenors have been accepted by numerous courts across the country.  I'm not saying they're right, in fact they're wrong and the positions taken by those courts are egregious and disgusting.  But I want to point out the reality of what the gay rights movement faces and has faced in the courts.  Even if Judge Walker rules in our favor, this is likely to be appealed and may be easily overturned and the courts might even agree with the argument of procreation.  

    •  Walker asked Cooper (1+ / 0-)
      Recommended by:
      Cassandra Waites

      some decidedly pointed questions.  It was kinda sad.  It's like he's leaning against Prop 8, but he's trying to give them a sporting chance by prompting Cooper to respond to some of the major points of the other side.

      If we win and they just let it go, it's not like that's it for anti-gay marriage, is it?  They can only cite the case in other court challenges, but it doesn't necessarily mean victory.  As it stands it would just be gay marriage in one more state, and commie-libtard-California at that.  If they roll it all the way to the SCOTUS and lose, it's gay marriage everywhere.

      •  Okay (2+ / 0-)
        Recommended by:
        Tonedevil, apimomfan2

        It would be extremely hard to imagine Judge Walker ruling Prop 8 unconstitutional and the intervenors not appealing the decision to the 9th Circuit.  I have a feeling that whatever results from the 9th Circuit panel, the case will be heard en banc by a "full court."  And I have a feeling that while the 9th Circuit rarely does this (I'm not sure if they've ever done it), they'll have the entire Circuit review the case.  

        Now, if Prop 8 is upheld on appeal by the 9th Circuit and the anti Prop 8 side is stupid enough to appeal to the Supreme Court, it's unlikely the Supreme Court will grant certioari.  But if the 9th Circuit strikes down Prop 8, I would find it very unlikely that the Supreme Court would not grant cert to an appeal by the Defendant-intervenors in this case.  And this current Supreme Court will affirm the constitutionality of Prop 8.  And if the Supreme Court upholds Prop 8, it is a devastating blow for those of us who believe in equality.  

        •  Disagree (0+ / 0-)

          Even SCOTUS has to look at the evidence and past cases to write decisions. Don't forget that Kennedy was the author of Lawrence v. Texas.  I think we have our 5 votes.

          Minority rights should never be subject to majority vote.

          by lostboyjim on Thu Jun 17, 2010 at 10:09:04 AM PDT

          [ Parent ]

    •  But the plaintiffs made sure (0+ / 0-)

      to provide copious evidence and arguments to make any defenses the USSC ducks behind as contemptible and ludicrous and bad warranted as possible.

      The Court is well aware that over 40% of country is in favor of gay marriage, support is increasing, and pretty much all the intelligent unbigoted people consider it just and proper.  Basically, they know perfectly well that there's only one acceptable verdict for historical purposes.  The alternative is to go down as a Court of fools that made an error on the level of Bush v Gore, Dred Scott, or Plessy v Ferguson.

      •  I don't agree (0+ / 0-)

        If that's how they looked at issues, they would have decided a number of cases differently, including Bush v. Gore.  This is the same Supreme Court that used the First Amendment to allow the Boy Scouts to exclude James Dale because he was gay.  

        The Court is well aware that over 40% of country is in favor of gay marriage, support is increasing, and pretty much all the intelligent unbigoted people consider it just and proper.

        Many elites are homophobic and heterosexist bigots.  They may be, for the lack of a better word, closeted bigots but they are bigots nonetheless.  Views are changing (as evidenced by Ted Olson) but let's not pretend that everyone agrees on these points.  

  •  Will there be riots (1+ / 0-)
    Recommended by:
    Cassandra Waites

    if Walker doesn't rule Prop 8 unconstitutional?  I mean, the anti-prop 8 side had lots of expert testimony and common sense reasons for how it's unconstitutional.  The other side had two witnesses.  And their star witness actually ended up giving testimony on cross that supported the anti-prop 8 side.  There is no good goddamn reason why Walker should rule for Prop 8.

  •  Holy Crap, That was legal malpractice. (1+ / 0-)
    Recommended by:
    Cassandra Waites

    How the hell did the DI case survive Summary Judgment.

    We are all Fish in the Gulf

    by olo on Wed Jun 16, 2010 at 09:34:30 PM PDT

  •  The procreative argument. (1+ / 0-)
    Recommended by:
    Cassandra Waites

    The procreative argument might have made sense if they were talking about compelling marriage to receive public assistance to public employment, it would have been totally untenable, but at least one could see a logical path.  My sister, brother in law, and nephews were not negatively impacted when my brother and his partner married.

  •  What a terrible argument. (0+ / 0-)

    They didn't put their leading lights forward when they put this Collins before the court.  I'm sure there was a better argument that could have been made.

  •  The fact that people are laughing at the fact (0+ / 0-)

    that the argument they are making, presumably to meet rational basis review, aren't consistent (ie,  asking if they think a state can prevent sterile people from marrying) completely ignores the fact that there is basically no legal requirement that the arguments actually be consistent that I'm aware of.

    You can argue that you should ban gay marriage because of procreation without arguing that you can do the same for sterile people.

    In fact, there is a pretty simple argument as to why this could be the case:

    There is a fundamental right to marry.  However, the question is whether there is a fundmental right to marry whomever you want, regardless of gender, etc.?

    If the answer to the second question is yes, then the answer is simple: gay marriage must be legal.

    However, if the answer to the second question is no, you still have to allow sterile people to marry because you cannot deny them the ability to marry at all, since marriage is a fundamental right.  However, that doesn't apply to gays because the argument isn't whether gays can marry in some fashion - they already can.  The question is over who they can marry.

    •  of course, having said that (0+ / 0-)

      the arguments in the 2nd box about "irresponsible procreation" is pretty stupid.

      The core of the procreation argument is this:

      The state has an interest in promoting marriages in which the center is procreation, but they can't limit marriage for sterile people because they can't constitutionally do so because you can't prevent someone from getting married at all.  But the fact that they can't prevent marriage because they're sterile doesn't mean they can't necessarily prevent gay's from marrying due to the procreation state interest. (or so the argument goes)

      Whether a court buys that or not probably depends on the precedents set in that particular court system and, at least for states, what rights might be granted in the state constitution.

      Here is the problem with the above irresponsible procreation argument...it could quite easily be turned into an argument against allowing a non-sterile person from marrying a sterile person.  If the fear is that, if someone can't procreate with their spouse, they might be tempted to with someone else, how would that be any different from the above case than with gay marriage? The answer is that it wouldn't.

  •  It Is Not the Proper Function of the Politicians. (0+ / 0-)

    ...to pass judgement on your marraige, but to merely stamp that it has taken place. Whether two people of the same sex wish to wed, or a person wishes to wed a tree is not the business of the politician. They are public servants, and like all servants should keep their damn opinion to themselves, stamp my marraige license, and otherwise mind their own business.

    C.J. Maloney's first book (on Arthurdale, West Virginia during the New Deal) is to be released by John Wiley and Sons in February 2011.

    by CJ Maloney on Fri Jun 18, 2010 at 12:14:39 PM PDT

  •  Money quote from Olson (0+ / 0-)

    Bowers vs. Hardwick isn't anything that you can rely on, in the Ninth Circuit or anywhere else. The High Tech Gays case was superseded by Hernandez vs. Montreal, which is a 1999 decision. And on page 1093, I'll just read one sentence.

    "Sexual orientation and sexual identity are immutable. They are so fundamental to one's identity that a person should not be required to abandon them."

    That, if we're going to have a Ninth Circuit precedent that would be guidance for Your Honor, that's the case.

    Hey folks. The courts have already found that orientation is an immutable trait.

    Put that in your pipe and smoke it, bigots.

    There is an art to teaching that is independent of the subject matter. - daveinojai

    by Killer of Sacred Cows on Fri Jun 18, 2010 at 09:21:52 PM PDT

  •  This whole thing is pretty ridiculous (0+ / 0-)

    Their fear has nothing to do with whether or not procreation took place, nor does it have anything at all to do with the sanctity or holyness of marriage. If either were the case they would be demanding that couples who cannot procreate have no right to marry, and that divorces and fly by night Vegas marriages be illegal as well.

    Their fear is directly related to the absolute terror that the proper application of the US Constitution will render the special position in society as the Christian  oligarchy completely irrelevant.

    Their fear isn't really that gay marriage will turn all of their kids gay. Their fear is that gay marriage will mean that neo-conservatives no longer rule America with the iron fist they have enjoyed for so long.

    It's the same bullshit Bill OReilly 'white male power structure' nonsense. He just forgot to add the word 'straight' to it.

    You know what? Fuck all you right wing assholes. Take your bullhockey religionist arguments and your bullhocky religion and cram them up your backsides. The right you are demanding to determine the future of other people DOES NOT EXIST.

    If you can deny rights like this to gay people then you can deny them to the straight Irish/Scottish Atheist or Blacks or Jews or Scientologists or any other group you happen to dislike.... and that will happen only over my dead body. It's time to set the record straight that ALL Americans are entitled to equal protection before the law - exactly as it says in the Constitution. This battle should not even need to be fought but there is always some asshole who thinks he's better than everyone else and quite frankly I'm sick of it.

    Don't like gay marriage? Don't marry a gay person.

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