Perry v. Schwarzenegger Prop 8 Closings Wrap Up

FDL Covers the Prop 8 Trial

Greetings from the United States Federal Courthouse for the Northern District of California where Marcy Wheeler, Teddy Partridge and I spent Wednesday covering closing arguments in Perry et al. v. Schwarzenegger et al. It was quite a day and, despite the solemn nature of court proceedings, a monumental and electric day. To be honest, the electricity is far more in the people, whether the plaintiffs, defendants, or the myriad of people here to witness the proceedings on what is without any question a unique and groundbreaking case.

Very early on, quite frankly I think before anyone else, I described Perry as the modern day equivalent to the Scopes Monkey Trial. I still very much stand by that comparison in the way both matters laid bare the raw bigotry of the private prejudice and hatred sought to be continued to be effected through the public government. For all the claimed exceptionalism of America, we still have so far to go.

You have already had the real time live blog from Marcy and Teddy, and their reportage was absolutely stunningly good. I have had the privilege of covering the actual live courtroom for the day. And a privilege it was too. Unfortunately, there was not usable WiFi or 3G coverage from my seat and I had to text my reports to Egregious and Marcy and have them cut and paste in. Simply put, Firedoglake had a large team working the Prop 8 proceedings for you — some you see, some behind the scenes, including the wonderful moderators. There is a lot to getting this level of coverage; if you have a dollar or two to support the effort, it really does help as it is you that allows us to bring this work to one and all.

In closing on the live portion of Wednesday’s coverage, I want to leave you with links to the set of questions Judge Vaughn Walker propounded prior to today’s closings and the respective answers of the two main parties. They are absolutely germane and critical to the full understanding of what occurred in both the trial and, more importantly, the summations today. You have plenty of time to review them all at your leisure, but I recommend that you all do so. It is the crux of one of the most significant and game changing trials that will occur in your lifetime. Yes, the case, and its broad civil rights and liberties implications is literally that significant. Thank you for the privilege folks!

Here is Judge Walker’s question set

Here are the answers of Plaintiffs Perry et al.

Here are the answers of Defendants/Intervenors

38 replies
  1. klynn says:

    That last question, on the last page (question #15) is the kicker question.

    Thanks for all your hard work.

    • Hmmm says:

      I’m sure you’re right… but I don’t understand it. Can you explain it for me please?

      Really a grand day bmaz, thanks so much for doing this excellent work.

      • bobschacht says:

        The answer is provided, in part, in the second document (answers of Plaintiffs Perry et al.), which provides Olson’s answer on p. 42:

        15. If the court finds Proposition 8 to be unconstitutional, what remedy would “yield to the constitutional expression of the people of California’s will”? See Doc #605 at 18.

        No remedy short of an order permanently enjoining Prop. 8’s enforcement in its entirety would be sufficient. If a state constitutional provision is inconsistent with the Fourteenth Amendment of the U.S. Constitution, it can no longer be given effect—regardless of its level of public support. U.S. Const. art. VI; see also, e.g., Romer, 517 U.S. at 635; Reitman v. Mulkey, 387 U.S. 369, 381 (1967); cf. Washington v. Seattle Sch. Dist. No.1, 458 U.S. 457, 487 (1982).

        DATED: June 15, 2010 GIBSON, DUNN & CRUTCHER LLP
        Theodore B. Olson
        Theodore J. Boutrous, Jr.
        Christopher D. Dusseault
        Ethan D. Dettmer
        Matthew D. McGill
        Amir C. Tayrani
        Sarah E. Piepmeier
        Theane Evangelis Kapur
        Enrique A. Monagas

        Bob in AZ

        • Hmmm says:

          Thanks, bobschacht. Between that answer and the other side’s answer it just looks like a yes-you-can vs. no-you-can’t, which I already understood both sides thought, so I’m just not sure why this question is the kicker.

          • klynn says:

            The kicker is that the question requires evidence as to why or why not Prop 8 is unconstitutional and asks for a remedy for the voters. Prop 8 being unconstitutional was the foundational question at hand.

            This case was quite easy to show that Prop 8 was unconstitutional.

            The question was for both Plantiffs and Proponents.

            Only one side answered. (Plantiffs)

            Hope that helps.

            • Phoenix Woman says:


              And it just occurred to me this morning that if anyone could make a case for overturning Prop 8 that would stick even if appealed to the Roberts Court, it would be Ted Olson.

              • Teddy Partridge says:

                Ted Olson said in the post-game press conference that he and David often joke that if (when) this case reaches the Supreme Court, David can focus on those Justices he prevailed with in Bush v Gore, while he (Ted) will win those who went with him in the same case, and — voila! — they will win all 9 justices!

                Of course, I sourly thought to myself, “Well, Ted, there’s two new fuckers your guy put on the Court after SCOTUS selected him to be President in 2000. Do you have a strategy for reaching their cramped little legal minds?”

                But everyone else thought it was a laugh riot so I did not want to spoil the funny moment.

                The point is valid, though: SCOTUS is different 10 years later, there will be at least four new justices seated by the time this case reaches them, and possibly even more. I hope this legal team is spending as much time thinking about how to reach and persuade the new folks on the Court, since by the time Perry v Schwarzenegger gets there, a majority of the justices may be new since 2000.

  2. rockpaper says:

    So, when are we going to hear Judge Walker’s final decision??? I can’t hold by breath any longer.

      • Teddy Partridge says:

        Ted Olson was asked this question at the press availability after court today, he said he had no idea when to expect a ruling nor how broad or narrow it might be. They are unwilling to speculate about the judge’s intent or schedule, although they were very complementary about his intellect and ability to understand the issues in the case.

        My understanding is that the Ninth Circuit goes on summer break on 8/1. It would be nice to hear from Judge Walker by then, but there’s really no telling. It’s entirely in his hands.

        • Hmmm says:

          Teddy! Wonderful job today!

          Was there any discussion at the presser about the motion to exclude Blankenhorn? Important/not, likely/not?

  3. Phoenix Woman says:

    Folks, compare the plaintiffs’ responses to those of the defendants.

    Notice that the plaintiffs hammer away, relentlessly and logically and always buttressed to the hilt with pertinent facts. The defendants try to bob and weave and avoid honestly addressing the judge’s questions for the simple reason that to honestly address them would torch their own case quicker than that lightning bolt turned Big Butter Jesus into a flaming gob of toxins.

    And a big thank you to Bmaz, Marcy, Teddy and the gang! You all are wonderful.

  4. Petrocelli says:

    Bmaz, it was great to read your comments, from where you were. Could you tell us how it felt, as an Attorney, to be there and watch the day unfold ?

    • bmaz says:

      I felt privileged to be at a proceeding so potentially transcendental (irrespective of the direction of the ruling) and honored to have a chance to see Ted Olson argue. He was rather reserved in his opening closing argument, but lit up and just really killed them in his rebuttal closing, which was the last word on the record for the day. Olson is a wonderfully nice guy, class act and marvelous attorney as is his cohort David Boies. Yesterday was pretty special; let’s hope that continues as the case migrates its way to the Supreme Court.

      • Petrocelli says:

        When you mentioned the Dark Suits, I could picture the room and the energy going through it. Thanks for being there.

  5. klynn says:

    Not to go OT:

    The ACLU has been doing a great job with their document a day in regards to Torture Awareness Month.

    I have deeply humbled by the collection of documents. Many EW and bmaz have posted about here.

  6. eCAHNomics says:

    I would characterize the defendants performance somewhat differently. Going back to explanations I received during the trial, the defendants say it is because that’s the way it is. There is no bobbing & weaving. What they have in mind is so obviously true that it really needs no defense & no evidence. They don’t understand why there should even by questions about it, it is so obvious to them that marriage is between a man and a woman, and that it is for the purpose of procreation. Thus their flat-footed response every time they are expected to explain why or give evidence. And their constant repetition of the same sentences. (Like the drunk at the party, they thought that if they said it one more time & a little bit louder, surely everyone would understand.)

    One particularly revealing exchange into this blindness on their part: They asserted ‘it’s been this way for millennia’ and Walker asked ‘what about the last 30 years?’ I would imagine that would really flummox defendants because what possible relevance could the recent 30 years have on something that has always been true.

    • klynn says:


      I actually had Christian friends tell me they were collecting sigs for ballot initatives and told them that their volunteer time would, in the end, result in the constitutional right for gay marriage. They never understood my viewpoint no matter how much I walked them through what would happen. I even pointed to the Scopes Trial as an example of my argument.

      Flat-footed indeed.

      I finally just told them that in the long run, they were doing the “right thing” for justice.

      They smiled and agreed. And, the irony was lost on my friends.

      I just smiled back.

      • eCAHNomics says:

        Believe me, it took a long time for me to understand their POV. I hope I put my effort to good use in my comment at 16.

        • klynn says:

          Throughout time, there has been a socital and practiced viewpoint about pairing and the balance viewed in pairing. The concept has made its’ way into mathematical thought (bilinear mapping) and scientific thought (base paring in Chemistry and biogenetics), computer technology (pair programming),cryptography, electrical engineering, food preparation (ex: peanut butter and jelly/wine and cheese), the arts…I could list examples all day. The concept of pairing exists everywhere and in everything around us. Pairing even can result in procreation. Note the operative word “can”.

          Often, the viewpoint of pairing has been around the pair of opposing forces or opposites and when paired, work together as one or to create a new whole, new definition or explained an outcome.

          Pairing is the concept Cooper was probably trying to tap into but failed to nail down as evidence. It is the core concept for the defendants.

          Unfortunately, math has evolved and a scaler product would reflect in the last thirty years:

          G1 X G1 = G2

          I think anyone understands the concept of pairing throughout the course of mankind. It’s the last 30 years where people get confused.

    • Phoenix Woman says:

      It’s trying to avoid the fact that they have no evidence to back up their assertions, so they just try to assert them repeatedly and loudly and hope the judge confuses that with having an actual case. That’s why they didn’t answer the key question, #15, that Klynn pointed out: They can’t give an honest answer because an honest answer would detonate their case.

    • harpie says:

      A good description of the Authoritarian Follower.

      From chapter 3 of Bob Altemeyer‘s The Authoritarians:

      “[…] But research reveals that authoritarian followers drive through life under the influence of impaired thinking a lot more than most people do, exhibiting sloppy reasoning, highly compartmentalized beliefs, double standards, hypocrisy, self-blindness, a profound ethnocentrism, and- -to top it all off- -a ferocious dogmatism that makes it unlikely anyone could ever change their minds with evidence or logic. These seven deadly shortfalls of authoritarian thinking eminently qualify them to follow a would-be dictator. As Hitler is reported to have said, “What good fortune for those in power that people do not think.”

  7. eCAHNomics says:

    Oh, and bmaz, loved your snarkelicious and otherwise pungent observations. Those really helped those of us who couldn’t actually see for ourselves.

    Altogether an outstanding job by the FDL Prop H8 team!

  8. DWBartoo says:

    My deepest appreciations to bmaz, Teddy, and EW (and all those “behind the scenes”, as well).

    Your collected transcriptions and commentary have been nothing less than sensational.

    No only have you shown the MSM how it SHOULD be done, but you have also done reason and conscience great justice, which is profoundly needful in these sorrowful times, when those things and the rule of law, itself, are daily, made mock of.

    Thank you.


  9. BoxTurtle says:

    First, my thanks to the FDL team for the most excellent liveblog, especially the unnamed sherpas behind the scenes.

    It seems to me as though Walker held this last hearing simply to give the D-I another chance to cut their own throats. And they did so admirably, especially given all the scars in that area from the earlier trial.

    So the ball is now in Walkers court. I think he’ll rule quickly, as I suspect he had a lot of the ruling already written before this. Probably before the end of the month.

    I’m now going to bet my hopes: I think Walker will make a very broad ruling striking down prop 8 and anything that looks like it. His message will be “If you want to ban gay marriage, you’ve got to change the US Constitition”. And he will not stay his ruling for appeal, on the grounds that the D-I’s have little chance of succeeding upon appeal.

    The D-I’s will appeal at once. They’ve likely already got their appeal ready, all they need to do is date it and file it. The 9th MAY stay the ruling pending appeal, but that’s not a certainty. If they DON’T stay the ruling, the D-I’s will likely make an emergency appeal to the Supremes for a stay during appeal. For some reason, I think Thomas is the circuit judge for the 9th and he’ll grant the stay for sure.

    If Walkers order is stayed, the D-I’s will go into major stall mode and try to delay a final ruling as long as possible. If it isn’t stayed, I suspect the plantiffs will do the same.

    Boxturtle (And the D-I’s got 3 votes with the supremes before they even open their mouths)

    • reddflagg says:

      (And the D-I’s got 3 votes with the supremes before they even open their mouths)

      Stevens’ retirement may be a problem depending on how quickly the USSC issues a writ. On top of that it is possible Kagan, if she wins confirmation, may need to recuse herself from the case because she has argued on behalf of DOMA in her position as Solicitor General. Yet another reason Kagan is a weak nomination.

  10. Bionic says:

    I admit I didn’t read everything but did read most of the ProProp *’s side of responses.

    I was struck that if anyone read their arguments who did not understand what Prop 8 was, they might think it was aiming to outlaw divorce.

    IMO it is not in society’s best interests that children be brought up by their married opposite sex parents. This is their base argument.

    It is in society’s best interest that they be brought up by happy, intelligent, caring and financially secure parents, rather than the state. And by parent I mean a loving committed caregiver.

    It is certainly easier if there is more than one “parent” in the home. But that’s just for the parents’ sanity because it’s the hardest work anyone has to do. If the in situ parent is happy, intelligent, caring and financially secure, unnecessary (though easier). Lack any of these in one and two parent families (or any other combination) and you get problems.

    As this trial has shown, the Pro Prop 8ers show that the problems they see are neither caused by, nor solved by banning gay marriage.

  11. freepatriot says:

    could you change those pdfs into blog posts for me


    I wanna read the questions, but pdfs kill my computer

    and I hope you are enjoying our wonderful weather here in the valley

    it ain’t always this nice in June

    • PJEvans says:

      Hi, freep!

      The one with just the questions is about 118K in size – the other two are each about twice that. (Not big PDFs, in other words.)

  12. freepatriot says:

    And it just occurred to me this morning that if anyone could make a case for overturning Prop 8 that would stick even if appealed to the Roberts Court, it would be Ted Olson.

    I don’t think the repuglotards would hesitate to throw Olsen under the bus

    in fact, I can’t think of a single repuglotard that is “Bus-Proof”

    the wheels of the bus go round and round

    and sooner or later, every repuglotard goes under the bus

    that’s just the price of being wrong and stupid, the two strenghts of repuglotards

  13. freepatriot says:

    this is for PJEvans

    I got a cheap assed computer

    it’s made of cardboard, baling wire, and spit

    it’s powered by two gerbils (and one of them is pregnant)

    my operating system is called “you can’t open that”

    I ain’t even sure which innernet it hooks up to

    my I-T guy does nothing but play poker when he “fixes” my machine

    and all my money goes toward paying that solitaire game back all the money I’ve lost (who knew they had hired goons workin for them)

    so using adobe acrobat ain’t an option

    is a computer even supposed to have a coat hanger antenna ???


  14. TEBB says:

    you don’t have to use Adobe Acrobat to open pdfs – download open office – it’s free and has a pdf reader.

  15. timbo says:

    Thanks for posting the links to the docs!

    Very interesting questions and definitely a demonstration of how deeply this issue dives into the social and legal natures of our country.

Comments are closed.