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Perry v. Schwarzenegger Prop 8 Decision Tomorrow

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I have just received the following email from the Judge Vaughn Walker’s court on the Prop 8 case:

August 3, 2010

ANNOUNCEMENT

On August 4, 2010, the court will issue its written order containing findings of fact and conclusions of law following the court trial held in January and June of this year. The order will be e-filed in the court’s Electronic Case Filing system, and will be immediately available thereafter through ECF and PACER. Visit www.cand.uscourts.gov for details on registering for PACER. There will be no court proceeding associated with the publication of the order.

A small number of hard copies will also be made available for public review shortly after the order is e-filed in the following locations:

San Francisco Courthouse: Clerk’s Office (16th Floor) & Press Room (18th Floor)

Oakland Courthouse: Clerk’s Office

San Jose Courthouse: Clerk’s Office

So tomorrow will be a very momentous day. The decision in Perry will be groundbreaking and historic regardless of which way it goes. From what I saw and heard at the closing arguments in June, it is hard to believe there will not be some relief granted by Judge Walker to Plaintiffs Perry et. al; the question is how it will be formed. But that is just a guess; Walker certainly did not tip his hand in any regard, so it could go either way.

Stay tuned to Emptywheel and Firedoglake for full coverage of the decision when it is filed.

Prop8 Liveblog: The City of SF Weighs In

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FDL Covers the Prop 8 Trial

Therese Stewart: The fact that legislation costs govt money is not sufficient to make law unconstitutional. Court decision on public schools. Considered toll on children, but also role of education, basic tools. Serious harm that Prop 8 imposes on gay men and lesbians, their children, and cities. Support case that Prop 8 was born of animus. Laws that can’t be explained give rise to inference.

Walker: Show unique harm to SF.

Stewart: Both to SF and state.

Walker: Point out SF.

Stewart: City loses revenue when people don’t come to SF to marry.

Walker: People come here bc it’s city of love?

Stewart: that’s part of it.

bmaz

City of SF atty flailing slightly. Walker helps her out with what her standing issue is really is. Good, not sure she was going to get there. Says is important to SF because SF is a city of hearts and lovers. Crikey, she may break out into The Tony Bennett song.

[Moves on]

Stewart: Costs of psychological treatment. Lesbians and gay men suffer harm at hand of family members. Youth can’t aspire to have marriage and families. As consequence, rates of suicide among lesbian and gay male youth.

Stewart: talks about plaintiff

Walker: If decision goes against plaintiffs, does SF have standing to appeal.

Stewart: I believe plaintiffs will appeal.

Walker: Let’s decide they don’t have standing.

Stewart: SF would have standing.

Walker: Then presumably Imperial County would have standing.

Stewart: Imperial County couldn’t show that it’s public health system suffered harm.

Walker: Let’s go back to particularized harm in SF.

Stewart cites how much public health care system would have to pay.

Stewart: If stigma were eliminated, that would reduce higher incidence of mental health disorder. Going back to Ryan Kendall. That is somewhat we face. When he was being abused, went to Denver HHS to juvenile dependency, became ward of state. Relied on public health care system.

Stewart: Increased policing costs. When people speak in disparaging language people feel empowered to take action in hate crimes.

Walker: Judicial decisions wouldn’t eliminate kinds of motives that give rise to harms you just described. Depend upon motives that law really can’t change.

Stewart. I don’t know that it would end them all together. But testimony of Mier, Herrick, Sanders, when you have structural stigma endorsed by govt, it does send message, translates into things like hate crimes. Hate crimes based on sexual orientation, second highest category, has been since 1995. Evidence about bullying. City accutely aware that history of govts demonizing people. SF once used its police power to harass its own people to drive gay people into closet.  SF wants nothing more than to treat its citizens all equally. Prop 8 denies us the ability to do that. Evidence presented at trial shows how deeply hurtful that is. We join in plaintiffs’ request that court hold prop 8 unconstitutional.

[More applause in ceremonial court room]

Governor’s counsel now.

Governor waives right to make closing argument and thanks honor for your time.

Attorney General waives his right to make closing arguments as well.

Walker: Well, I have a question.

Alameda County Clerk Recorder lawyer:

Walker: DO you ask parties to identify genders. For marriage licenses?

ACCRL: I don’t know, but I believe box on marriage license.

Walker: We checked SF, Orange, and Imperial County, it appears on apps for marriage licenses, that in SF there is box for groom, bride, and that’s labeled optional. In Orange, bullet for groom, bride, none. Now

[laughter in court room, from Walker]

ACCRL: I don’t know what to make of if. I suppose you can apply, doesn’t mean registrar will recognize marriage. May be a way of sorting out apps for marriage not currently legal.

Walker I think the same is true in Orange [sic]. In Orange county, you can apply online. If you fill out say, groom, punch next, call up other party, you can put in groom again. It doesn’t give you an error message. I suppose I can take judicial notice of all these things.

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Prop 8 Liveblog: “June Is the Month for Marriages”

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FDL Covers the Prop 8 Trial

Teddy and I are in the ceremonial court room to watch the Prop 8 Trial. bmaz is making friends down in the actual court room. Teddy’s doing a full liveblog over there where the wireless signal is strong. Until he needs a break, I’m just going to write some impressions and transcribe bmaz’s comments (he’s got no signal).

bmaz, in the court room writes,

Talked to Ted Olson on the elevator and walking down the hall to court room. He is excited and cautiously optimistic. In courtroom now Walker about to take the bunch. There is a strange hushed buzz of excitement about the room. You can tell this is special; there are two sketch artists! It is electric here.

After all the lawyers introduce themselves, Walker says,”Well this is an impressive array of legal talent.” Then, explaining that the delay between the trial and the closing argument (caused in part by ACLU dispute over disclosure), he says the delay may be appropriate. “June is, after all the month for weddings.”

bmaz:

The respective parties are at long rectangular counsel tables, actually perpendicular to the bench. Leaves the attys facing each other – kind of unusual. Walker makes a joke that June is historically ‘good month for weddings’ so is right for closings on this case.

If I were the defendant-intervenor team, I’m not sure I’d take that as a good omen.

Olson up. State has changed constitution to take away right from these plaintiffs.

Olson: Present marriage from four positions.

Proponents. In words of lead counsel, central and defining purpose of institution of marriage is to promote procreation. Core need that marriage aims to meet is child’s need to be practically and legally affiliated with man and woman who brought child into world. Proponents of prop 8 see marriage as an institution of, by, and for the state, and to promote procreation and raising of children by biological children.

Olson quotes from Prop 8 campaign lit: “Protect our children from learning that gay marriage is okay.”

Olson: For obvious reasons the “gays are not okay” message was abandoned during the trial in favor of the procreation and deinstitutionalization thesis.

bmaz:

Olson goes right at di arguments. He is effectively painting it as religious based state action/enforcement. Walker tags him with fact he has burden of proof. Olson insists strict scrutiny is the relevant test (he is right)

Walker: But it is the plaintiffs who bear the burden of proof is that not right?

Olson: Up to a point.

Walker: and that standard being?

Olson: Strict scrutiny.

Walker: Are you focusing on facts pertinent to CA, or facts generally with respect to gay marriage in the country?

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David Boies: Prop 8 Trial Establishes as “Matter of Fact” that Marriage Equality Doesn’t Hurt Straight Marriage

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The lawyers for the plaintiffs in Perry v. Schwarzenegger trial had a conference call to preview what they will say in next week’s closing arguments (which Teddy, bmaz, and I will cover from the courthouse).

The most interesting response from the legal team came in response to questions about the defendants’ complaints about having a trial and their efforts to withdraw almost all of their “expert” witness testimony.

In response to that question, David Boies engaged in a bit of trash-talk, noting how much of their witnesses’ testimony either contradicted itself or ended up endorsing key claims made by the plaintiffs.

Boycotting a trial almost never a winning strategy. They identified 8 experts. What happened is that their experts broke down, either at deposition or at trial. They tried to come up with the evidence, they knew they were required to come up with evidence. They tried to build that trial record and they simply failed. They didn’t fail because they’re bad lawyers, they failed because there isn’t any evidence to support the argument they’re advocating.

Ted Olson answered the question, first of all, noting that the defendants’ witnesses couldn’t hold up under Boies’ cross-examination. But he also emphasized the audacity of spending tens of millions of dollars to convince Californians to deprive a class of people of a fundamental right, but then saying they didn’t want to defend the same arguments in an independent court of law.

With respect to their complaints about the trial, I find it ironic that people that spent $40 million dollars to pass Prop 8 suddenly didn’t want to defend it when David Boies was going to challenge their witnesses. … Trials are pursuits of justice. That is how we resolve things in this country, particularly when there’s a constitutional matter. So for the proponents of Prop 8 who convinced millions of Californians, to take away rights of portion of Californians. To say, “We don’t want to defend what we did in trial of independent American judiciary” is audacious, is the best thing I can say about it.

But the discussion was perhaps presented most simply when Boies explained the value of getting the defendants’ witnesses to agree with key aspects of the plaintiffs’ arguments over the course of the trial. Boies noted that the trial record demonstrates as “a matter of fact” that there is no harm to heterosexual marriage from permitting gay men and lesbians to marry.

Do Bloggers Suck or Does TradMed Just Suck More?

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Above the Law, reporting on a speech 9th Circuit Court Chief Judge Alex Kozinski gave at Fordham Law, summarized his argument as, “A New Argument in Favor of Cameras in the Courtroom: Bloggers Suck.”

Now, for the record, I’m all in favor of cameras in the courtroom and have long been, particularly once I discovered that TradMed journalists look for different things at hearings than I do. And particularly today, as I’m deciding whether I have time to get to the closing arguments in Perry v. Schwarzenegger, drink some beers with bmaz, and be back here in time to drive to Syracuse for my mom’s 70th, I’d love the option of sitting at home and streaming the trial (though beers with bmaz might still win the day).

But I wanted to look more closely at the argument Kozinski seems to be making (assuming, of course, that the blogger at Above the Law competently replicated it, because there’s always the possibility he’s just being loud and biased).

Kozinski started his talk by going over some of the arguments he has made before [PDF] in support of cameras (e.g., studies show cameras don’t affect the proceedings, quoting his “old boss” Warren Burger — “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”).

It wouldn’t be like the O.J. trial, which decidedly set the cameras-in-the-courtroom movement back. Kozinski advocates stationary cameras that would not zoom in, zoom out, or otherwise overly dramatize the courtroom events. Kozinski acknowledged that if you were to choose between a O.J. media circus or reports from informed journalists like Nina Totenberg or Linda Greenhouse, one might be happy to live without cameras.

But that’s not usually the choice one has. Kozinski pointed to the “long, slow decline of the newspaper industry” and the “rise of a much more diffuse style of coverage” as a major reason why cameras should be brought into courtrooms. Increasingly, the public is relying on “pseudo-journalists” (aka bloggers) for their instantaneous legal news.

“On the Internet, the loudest voice gets the most attention,” said Kozinski, who said that tends to lead to a distortion of the coverage of a case. He also raised the risks of relying on unknown bloggers, pointing to the case of “Dr. Flea.”

[snip]

“The days of obscurity for judges and reliable, informed journalists are gone and gone forever,” said Kozinski. “If courts don’t change with the times, change will be forced upon them.”

Kozinski’s arguing, apparently, that we need cameras in the courtroom because trials are no longer covered with the skill that Nina Totenberg and Linda Greenhouse bring to their work. Furthermore, Kozinski seems to be arguing, the public is fooled into following “loud” chroniclers of trials, rather than competent ones. And, it seems, Kozinski believes readers (the blogger here doesn’t specify what kind of reader) risk … something … if they rely on pseudonymous bloggers.

As some of you no doubt recall, a blog named “FireDogLake” actually once covered a trial–the Scooter Libby trial–also covered by Nina Totenberg. FDL’s coverage was undoubtedly biased and at times even delved into heavy snark (since then, in fact, one of the bloggers has developed a bit of a reputation for a potty mouth). Nevertheless, FDL’s liveblog–written under the pseudonyms “emptywheel,” “Swopa,” and “Pachacutec”– became the standard “instantaneous” news from the trial. Two of the TradMed journalists in the courtroom–including one whose beat was the Court–followed the stream, not to mention an unknown number of journalists who chose to stay away from the court house and follow along the thread. The General Counsel for the Washington Post chose to follow FDL’s liveblog, rather than the superb work of Washington Post reporter Carol Leonnig, because with five reporters testifying in the trial, he needed up-to-the-minute near transcription rather than twice-daily analysis of the events. When it was all said and done, Jay Rosen declared that in most categories of coverage “FDL was tops.” I assume Rosen even considered Nina Totenberg’s coverage of the trial when he said that.

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