Wednesday, June 16, 2010

Landmark Proposition 8 trial has ended: Read Prop. 8 trial closing arguments

"The final arguments in the landmark Proposition 8 trial have ended, with the case now in the hands of Judge Vaughn Walker (pictured at left)."

This is a must read!

Howard Mintz's recap of the day's proceedings:

8:47 a.m.: Closing arguments set to begin at 9 a.m.

Closing arguments in the landmark Proposition 8 same-sex marriage trial are scheduled from 10 a.m.-4 p.m. today in San Francisco.

The historic trial is in its final stage as lawyers on both sides have their last chance to influence a federal judge deciding the fate of California's ban on same-sex marriage.

Chief U.S. District Judge Vaughn Walker has scheduled a full day of arguments, the final step before he rules on a lawsuit that argues that Proposition 8 violates the constitutional rights of gay and lesbian couples.

The first federal court test in the nation of a state law forbidding same-sex nuptials, it is widely expected to ultimately push the gay marriage issue to the U.S. Supreme Court.

In January, Walker conducted an unprecedented three-week trial featuring a number of experts and other witnesses who testified on the impact of the law, which California voters backed in 2008, that restored the state's ban on gay marriage.

Walker's ruling, which is likely to come this summer, is expected to a prelude to a legal fight most believe is headed to the U.S. Supreme Court.

Whatever Walker decides, the case is expected to be appealed first to the San Francisco-based 9th U.S. Circuit Court of Appeals.

9:30 a.m.: Plaintiffs lawyers up first in closing arguments

After a nearly five-month hiatus, the Proposition 8 trial is about to resume with a long day of closing arguments.

Chief U.S. District Judge Vaughn Walker has set out a schedule for the arguments, and it is as follows: the plaintiffs lawyers start the proceedings, with former U.S. Solicitor General Theodore Olson set to argue the case to overturn California's same-sex marriage ban.

Therese Stewart, a lead attorney for the San Francisco city attorney's office, will then chime in with a short argument against Prop. 8.

The governor and attorney general's office were given some time, but have decided not to argue in the case (AG Jerry Brown has said Prop. 8 is unconstitutional).

In the afternoon, Prop. 8 defense attorneys will make their case for two hours, and then plaintiffs will have a short rebuttal to round out the day.

The media crush is back on for today, much as it was on the first day of trial.

Gay marriage supporters started the morning outside the federal building with a rally, and more are expected as the day progresses.

10:16 a.m.: Opening arguments begin

Plaintiffs attorney Ted Olson just got his arguments underway.

"We conclude this trial where we began," he told Judge Vaughn Walker. "This case is about marriage and equality."

"Their state," he continued, " has stigmatized them as unworthy of marriage."

Walker opened up the day with a trademark wisecrack, noting the delay since January.

"It's appropriate the case is coming to closings now," he told the jammed courtroom. "June is the month for weddings."

San Francisco Mayor Gavin Newsom just took a seat in the front row.

11:06 a.m.: Judge asking a lot of questions

Judge Walker has already been extremely active in his questioning, not surprising in that he issued 11 pages of questions on the Prop. 8 case for lawyers in advance of today's arguments.

He has peppered plaintiffs lawyer Theodore Olson with questions on why California's domestic partnership laws don't suffice for gay and lesbian couples, which the judge noted as "essentially all the rights of marriage."

And he wondered, when Olson discussed the U.S. Supreme Court's precedent establishing a fundamental right to marry, "Why can't California collectively establish the parameters of that right?"

Finally, Walker also asked whether the plaintiffs case would be different, or weakened, if the California Supreme Court had not refused to invalidate the 18,000 same-sex marriages that were licensed before Prop. 8 was enacted in 2008.

"It would be less worse," Olson replied, rejecting the theory that the state could still deny gay couples the right to marry.

He noted that those couples now married would not be able to remarry if they divorced, under Prop. 8.

Olson is now playing video of the testimony of the plaintiffs that took place earlier in the trial, including Kristin Perry and Sandy Stier of Berkeley.

11:35 a.m.: Judge continues his questioning

The banter between Judge Vaughn Walker and plaintiffs attorney Theodore Olson has continued unabated.

Walker's line of questioning doesn't seem a matter of tipping his hand on how he'll rule on California's gay marriage ban.

Instead, he appears to be turning over every rock in his exploration of when, and whether, a federal court should intervene in a legal fight over a contentious social issue, particularly when the voters have adopted a law such as Prop. 8.

"When does it become right for a court to weigh in on these issues," the judge asked Olson at one point.

Olson has stressed that history is replete with examples of courts correcting discrimination.

He compared the record in the Prop. 8 trial to what was assembled in the Brown v. Board of Education case that wound up in the Supreme Court.

"The evidence is overwhelming....this is a government imposed stigma...placed in the constitution of the state of California," Olson told the judge.

Olson has just wrapped up his argument, and how Therese Stewart, San Francisco's lawyer, has 15 minutes to argue against Prop. 8.

Stewart has experience: she's argued the issue in the California Supreme Court.

12:10 p.m.: Plaintiffs finish arguments, trial breaks for lunch

San Francisco lawyer Therese Stewart completed a very short argument (she had to make short, she got 15 minutes) to argue that Prop. 8 has a particularly discriminatory impact on San Francisco, where one expert during the trial estimated its cost to the city amounted to hundreds of millions of dollars, from lost tourist revenue to public health costs.

Judge Vaughn Walker seemed a bit skeptical, but Stewart concluded by saying the law essentially requires the city to discriminate by denying marriage licenses to same-sex couples.

Lawyers for both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown then both waived their arguments, which Walker seemed to find disappointing because in theory those two offices would ordinarily defend a state law.

Brown has said he considers Prop. 8 unconstitutional, and the governor has taken no position, other than saying the federal courts need to resolve the legal issues surrounding Prop. 8.

Walker has broken for lunch.

When the proceedings resume, lead Prop. 8 lawyer Charles Cooper will have more than two hours to defend the law.

He can be expected to stress the theme he relied upon during his opening statement back in January: that voters have the right to restrict marriage in the state to preserve the traditional definition of marriage, as well as to promote procreation as a societal reason for marriage.

1:20 p.m.: Defense attorney begins closing arguments, judge questions thesis

The Prop. 8 trial has resumed with the closing arguments of Charles Cooper, lead defense attorney for the Prop. 8 team.

Cooper began by stressing the state has a strong interest in regulating marriage and promoting the institution for procreation.

The judge, however, has been quick to question Cooper's thesis.

The judge has wondered aloud why government even regulates marriage at all.

"Do people get married for the benefit of the community," Walker asked at one point, later adding that it seems otherwise. "What you think," he said, "is I'm going to get a life partner I can share my life with."

At another point, Walker asked Cooper: "Why couldn't the state start saying marriage is entirely a matter of private conduct?"

Cooper stuck to his guns. "Marital relations are fundamental to the existence of the race," he said.

The debate is central to the challenge to the state's same-sex marriage ban.

Prop. 8 defenders must show that California has a compelling interest in restricting marriage to heterosexual couples.

1:40 p.m.: Judge asks Prop 8 attorney "where's the evidence?"

It was inevitable that Prop. 8 lead lawyer Charles Cooper would find some rough sledding over the fact that the defense put on just witness in January's three-week trial.

And Judge Vaughn Walker has doused him in hot water on the topic for the past 20 minutes.

When the judge repeatedly asked Cooper what evidence his side had for the argument that barring gay marriage is justified to promote the procreative purpose of traditional marriage, Cooper kept insisting that the premise is self-evident.

And that countless courts have found that to be the purpose of traditional marriage.

And that millions of Californians backed Prop. 8 to preserve traditional marriage and the need for couples to bear children.

Where's the evidence? Walker asked.

"You don't have to have evidence of this," Cooper tried to assure him.

The judge tried again. "Why in this case did you present but one witness on this subject?"

2:33 p.m.: Judge and Prop 8 attorney continue lively exchange

Prop. 8 defense lawyer Charles Cooper has continued his lengthy argument to uphold the legality of California's same-sex marriage ban.

And Judge Vaughn Walker continues to engage him in a lively exchange over whether there is justification for the ban that doesn't violate the constitutional rights of gay and lesbian couples.

At one point, the judge noted that many similar arguments were raised before the U.S. Supreme Court in 1967 finally outlawed state bans on interracial marriage.

"Why are we not at that same tipping point here with respect to same-sex marriage," Walker asked Cooper.

Cooper, however, insisted the two civil rights fights are completely distinct.

He noted that bans on interracial marriage actually conflicted with the "fundamental ' reason for marriage laws, that being to foster procreation.

That, he said, is different than restricting marriage to heterosexual couples.

Walker has also asked about why there is a difference between providing domestic partnership rights, or why it is different for the state to allow infertile couples to marry, but not gays and lesbians.

"It's not quite the same," Cooper said of allowing couples to marry if they need egg or sperm donors to procreate

3:01 p.m.: Defense winding down closing arguments

Prop. 8 lawyer Charles Cooper is close to winding up his closing arguments.

Again, he repeated the core argument in the defense of the law: "The right to marry," he told Judge Vaughn Walker, "is bound up with the fundamental purpose of procreation and the existence and survival of the human race."

Plaintiffs lawyers will have a brief opportunity to provide a rebuttal argument to conclude the day.

The judge, meanwhile, indicated he's considering striking the testimony of David Blankenhorn, a family values leader who was the only witness for the Prop. 8 defense (and the judge is already clearly troubled that Prop. 8 lawyers didn't put on much evidence in the first place).

Plaintiffs lawyers have argued that Blankenhorn doesn't qualify as an expert.

4:02 p.m.: Arguments end, case in judge's hands

As he winds up his rebuttal argument, plaintiffs attorney Theodore Olson is pouncing on the lack of evidence presented on the other side for denying same-sex couples the right to marry. "You have to have a reason for that," he said. ' "I don't know, I don't have any evidence,' doesn't cut it."

Walker has just ended the session for the day and the fate of Prop. 8 is now in the judge's hands.

Read the full OFFICIAL transcript here.