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Monday, December 6, 2010

Prop. 8 Trial: The Live Blog

Posted By on Mon, Dec 6, 2010 at 8:25 AM

click to enlarge The big day has arrived...
  • The big day has arrived...

Check back often for frequent updates

Monday, 12:05 a.m.: This is it, folks: the big day for Prop. 8 at the 9th Circuit Court of Appeals. Lawyers for both sides get just two hours to make their cases this morning, and we're going to be on the scene to report about how it goes. Stay tuned for live updates from the media room at the courthouse down by Seventh and Mission.

The preamble

There's a number of ways that today's arguments could turn out, but it comes down to two questions. The one on most peoples' minds is the big one: Is it unconstitutional to have one set of laws for gay people and another set of laws for straight people? That question's already been answered once, and it boiled down to "yes, obviously." Today's arguments represent an appeal of that ruling.

But there's another, more complicated issue at play. Because the state of California has refused to defend the marriage ban, a band of anti-same sex marriage crusaders has taken on its defense in court. But that might not be allowed -- according to one interpretation of the rules, only the state has permission to defend its own laws.

The 9th will rule on both questions ... eventually.

Once today's oral arguments are complete, the three randomly selected

judges will retire to their Bat Cave to issue a pronouncement at some

point in the next few weeks.

It's anyone's guess how they'll

rule, or what the repercussions will be. If the crusaders (also known as

the "proponents," since they are proponents of Prop. 8) do not, in fact,

have permission to defend the law, the whole case might just get tossed out. Or the

whole case might get thrown back to the lower courts for a do-over.

If, on the other hand, they do

have standing, then the court will need to decide whether District Court

Judge Vaughn Walker was correct when he ruled that there is no legitimate

government interest in preventing gays from marrying. You know, because

nothing can overthrow a republic faster than two guys visiting each

other in the hospital.

click to enlarge gaymarriage_constitution.jpg

And no matter how the judges rule, the case will likely be appealed to the Supreme Court of the

United States in about a year. "SCOTUS" has the option to refuse that

appeal, so it's possible that the 9th Circuit's ruling -- whatever it

winds up being -- might be the final word.

Like all lawyerly

stuff, this case is super-complicated. We'll do our best to keep the

reports nice and comprehensible, but if you're looking for a refresher

on the last two years, you can head over to for a compilation of daily reports on Prop. 8 news. Or for something a bit faster, skim the back-catalog of weekly recaps to get all up-to-date in just a few minutes.

You can also follow along with the live video feed. According to blogger Leanne Waldal, here's a list of the stations broadcasting the proceedings live: KGO-TV; KRON-TV KTVU-TV; ABC News (both TV and radio); KCBS radio; KGO radio; and KQED News.


matter what happens, the next few hours will play a crucial role in

determining the fate of Prop. 8. Possibly even more crucial than the time a

bunch of people marched up and down Market Street waving signs.

So stay tuned:

more news as it comes.

Update, 8:20 a.m. : Around two hours before the hearing commences "the usual suspects" are here. Molly McKay, Stuart Gaffney, John Lewis, and Roland Stringfellow are addressing around 100 gathered demonstrators. Milk screenwriter Dustin Lance Black is milling around as well. No one seems to have slept very well last night.

Update, 9:12 a.m.: 
Oh look! Jesse Jackson!

Update, 9:30 a.m. :
The VIPs have all entered the courthouse, leaving outside a pair of dueling loudspeakers. The Freedom to Marry coalition has been giving

speeches since 7:30 a.m., but, at 8:30, a guy showed up with a megaphone and a

"homo sex is sin" sign. He's been bellowing from across the street


click to enlarge Far from Mt. Sinai, Moses makes an appearance in San Francisco - MATT BAUME
  • Matt Baume
  • Far from Mt. Sinai, Moses makes an appearance in San Francisco
Some choice quotes: "You don't know

love. You know diarrhea." "One of these days someone is going to want to

marry an iguana." "You need to stop being a lesbian." "You stand for

abortion." "You hate normalness. YOU are the haters."

And also the compelling argument, "booooooooo."


their part, the equality speakers have calmly advised the crowd to

direct positivity forward, and there's been no return of harassment from

the other side.

Update, 9:50 am : Curtain's nearly ready to go up, and there are just a few last-minute hiccups: WiFi at the courthouse keeps dropping out. It seems to be taken care of now. Meanwhile, they're doing the preamble to the court proceedings, which basically entails reminding everyone VERY VERY FIRMLY to turn off cellphones.

Update, 10:17 am : It's not looking good for Imperial County -- not that it ever did. The judges' questions seem to suggest that attorney Robert Tyler is representing the wrong county officer.

Update: 10:43 am : The judges are hitting David Boies over tactics. They've brought up the point that if the governor and attorney general don't like a law, they can't veto it -- but they can refuse to defend it in court. The court's point is that an intervenor is necessary to prevent the state officers from having a de-facto end-run around laws. Boies says that it doesn't matter -- even if no official is willing to defend a law, that doesn't give just ANYONE standing.

Update, 11:05 am :
The standing questions is hinging on a complex labyrinth of rules and procedures. Boies says that the proponents do not have standing because the injunction does not affect them -- even though everyone knows that it does. But it's the way that it affects them that makes the difference.

Update, 11:30 am: Proponents' attorney Charles Cooper has popped back up to make a startling argument. He said that the state has a "reason" to distinguish between nonprocreative gays and straight couples, though he didn't say what that reason is.

"What is the rational basis [for providing every right but withholding the title]? ... We're left with a word," responded one of the three judges. (The court's feed in the press room is so distorted that it's impossible to tell which one is talking.)

Cooper agreeed, surprisingly. "The word is essentially the institution," he said.

Update, 12:06 pm : Ted Olson has taken the stand for the plaintiffs. In contrast to gentle-but-firm David Boies, Olson is a real bulldog. He's taken a really firm stance:

Judge Reinhardt: "Is gay marriage required by the Constitution of the U.S.?"

Ted Olson: "What's required is the right to marry. ... 
The right to marry is an aspect of the right to liberty, privacy, association, and identity."

Update, 12:16 pm : Olson is going for the jugular by pointing out that Prop 8 was motivated by animus -- which is not a valid motivation for restricting rights. To prove his argument, he points out that the original justification for Prop 8 was to prevent children from thinking that it's okay for gay people to get married. "That's nonsense!" he exclaims.

He goes on to point out that if you wanted to prevent kids from thinking about sex, you'd have to prohibit comics, TV, movies ... and conversations with other kids.

Update: 12:30 pm : Olson continues going strong. "
California has built a fence around its gay and lesbian citizens and it's built a fence around the institution of marriage," he says. "That's a violation of the equal protection clause and the due process clause."

Update, 12:35 pm : Therese Stewart, San Francisco's Chief Deputy City Attorney, is up now. "We agree with plaintiffs ... treating same sex couples differently is unconstitutional across the board." She's pointing out that Prop 8 doesn't advance the goals that its proponents claim: it has no effect on parentage and childrearing.

Update, 12: 41 pm: Therese Stewart ends with a nice bit of verbal ju-jitsu to avoid calling Proponents bigots. "
Prejudice ... the belief that one group is less worthy ... is not always borne of hatred," she said. "It may be a want of careful reflection, or an instinct to guard against people who are different from ourselves."

This is a response to the claim by Proponents that the plaintiffs are calling the voters of California bigots. No, says Stewart, they're not bigots -- simply exhibiting normal human error.

Update, 12:50pm: And that's that! Now it's time for the press conference. We're wedged in on the front row next to the podium, awaiting speechifying. Tons of reporters and cameras.

Update, 1:00pm: Still waiting. In the mean time, the tiny area set aside for the press conference is filled to bursting. The court's press guy, David Madden, is being pretty firm about booting people out -- photographers have to stand over on the sidelines, he's said in no uncertain terms. One photographer with a wide lens pointed out that he won't be able to get a good shot from far away, to which Madden said, "I'm asking you to move, sir. Do I need to get security?"

Update, 1:30pm: Olson and Boies seem to be pretty confident at the press conference. Everyone's in a cautiously upbeat mood -- a mood that began a year ago, when it became clear that the case had a good shot, and has only escalated since then.

The one question that nobody wants to answer is about the timeframe for the ruling. It won't be this year, says Boies. Hopefully sometime in early 2011. If it goes to the US Supreme Court, that'll probably happen in 2012.

Proponents are filing in now.

Update, 1:45pm: The prop-Prop-8 side is speaking now.
"We want to pay our respects to our opponents in this case, who have presented their case with skill," Cooper says. "I regret that our opponents do not return that respect to the arguments that those of us defending Prop 8 have advanced."

He goes on
that the American Foundation for Equal Rights (AFER) has "demeaned and ridiculed" their arguments. They're not the only ones.

Update, 2:00 pm: And that's about it! Everyone's dispersing to take some deep breaths and try to relax for the next few weeks. Now would be an excellent time for a good stiff liquid lunch.

There's a wild range of ways that the case could wind up. The Court of Appeals could send the case back to the District Court. Or the judges could defer the question of standing to the State Supreme Court. Or they could decide one question and not the other -- or both questions.

What's the most likely? It's hard to say. Judges' tea leaves are notoriously capricious. If we felt confident enough to gamble, we'd put money on a decision that Proponents have standing, Imperial County does not, and that Prop. 8 is unconstitutional, and we'll see it at the Supreme Court in 2012.

Or not.

Matt Baume is the founder of

Follow us on Twitter at @TheSnitchSF

and @SFWeekly

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