Judge Walker is now addressing the court with regard to the televising stay.

The decision to broadcast is completely and totally appropriate, according to Judge Walker, exactly as it is used by the White House to keep the American people informed.

Changes to the local rules: 77-3, adopted at a special court meeting. This rule was adopted shortly after the Ninth Circuit began the pilot program, unanimously by the Court, since it conformed to Court policy.

This court had in mind when adopted this rule that the Court would broadcast to remote locations as part of this pilot project. Comments should be sought and elicited, which the Court has done in the past.

More than 138,000 comments were received by the court, the majority of them in favor of making AV available. Overwhelmingly, per Judge Walker.

138,542 in favor; 32 opposed to broadcast.

The Bar Association has also sent a response, which Judge Walker will make available as part of the record.

Much work this weekend went into getting ready for this, from the Chief Judge and his Clerk; emails sent to Judge Walker shortly after midnight Sunday, so they were working very hard.

Judge Walker did not attend to this matter this weekend, he read the briefs and the findings of fact.

Have any of the parties have anything to add? We have gone through a helpful process. The issue of the public’s right to access trials is very important; it’s too bad we have to be the trailblazer, since the Court and the Judicial Conference should have dealt with this in due course.

In this day and age, with the technology available, the court should make its processes accessible. Finally, after 20 years, we may get some sensible movement forward.

Mr Lucas (?) plaintiff’s attorney, asks that the Court permit recording and preservation. Both the plaintiff’s attorney (Olson) and the Defendant-Intervenor’s attorney (Cooper) have worked very hard on their opening statements, and would likely want them preserved for posterity. (laughter)

Judge Walker says this is a fair request, but only broadcast is to the overflow courtroom. Lawyer points out that if a record is preserved, the decision can be made later.

Cooper (D-I) objects to the proposal that a record be kept. Not consistent with the spirit of the SCOTUS stay.

Opening statements? Are we ready to proceed?

Cooper has a preliminary evidentiary matter. Should that be brought up now? Wants to reiterate their objection to any use of communications, ads, messages used by the YES campaign. This information may be solicited throughout the trial, and he objects. Should it come up during the opening, his folks will pop up.

Opening statement: Ted Olson

This case is about marriage and equality. Plaintiffs are being denied the right to marry, described by SCOTUS as one of the most vital personal rights pursuant to the right to the pursuit of happiness, intimate choice, expression of emotional support, the exercise of spiritual unity, the highest expression of self. It is the most important right in our society.

(I am choking up here)

Walker: Does this apply to the state’s licensing of marriage?

Olson: Not sure I understand the import of the question. If there is a right to marry in the Constitution….

Walker: Does that right presume that the state has a DUTY to issue marriage licenses?

Olson: Certainly appropriate there might be aspects of the marriage that the state wants to regulate: age, residency — which don’t concern us here. SCOTUS has talked about the licensing being the state’s way of implementing the right to marry.

Olson: Marriage promotes economic, mental, physical strength. It is the building block of our society.

Olson: Prop 8 ended this dream for thousands of California citizens, even though the SCOCA had defined marriage as a fundamental right, then voters slammed the door.

Olson: The plaintiffs are two LOVING COUPLES in deeply committed, longstanding, intimate relationships.

Walker: Are the plaintiffs not registered domestic partners?

Olson: We will present them and they will tell you.

Walker: What disability do they operate under b/c they can’t marry? Are these differences of a legal nature? Is this a product of state action or of society?

Olson: What the state has done is sanctioned and labelled a formal relationship called domestic partnership which has nothing to do with love. The other relationship, marriage, is now reserved for opposite sex couples. CA has put people into categories.

Walker: Does Prop 8 classify people?

Olson: Yes, it does. There are now FOUR categories of Californians, and that matters a great deal.

Olson: Domestic partnerships are lesser and not the same as marriage.

Walker: Are domestic partnerships limited to same-sex couples? So where is the discrimination? What if CA got out of the marriage business and simply offered everyone domestic partnerships?

Olson: Yes, that might mean people can enter into marriages without state sanction and then get D/Ped by the state. But the people of California will not get out of the biz of marriage.

Olson: In November, the voters slammed the door….

Walker: Why wouldn’t California get out of the marriage biz?

Olson: Just handed a note: only opposite-sex couples over 62 years old can enter into domestic partnerships in CA. Californians won’t get out of the marriage biz; so much money has just been spent by both proponents and opponents, so clearly it matters to Californians.

Olson: there have been marriage restrictions in the past, based on race and there were restrictions treating women differently, treating minorities differently.

Walker: Have we raised marriage therefore to the point where marriage restrictions inhibit due process?

Olson: SCOTUS has defined marriage based on ways that don’t restrict it to opposite-sex couples; it has to do with the value to the people in it, according to SCOTUS.

Walker: What’s changed, to elevate this dispute now?

Olson: SCOCA defined the right of same-sex marriage.

Walker: What is the evidence HERE going to show?

Olson: You asked what changed? The passage of Prop 8 changed things. It isolated gay men and lesbian individuals: it said, you are differnt.

Walker: Will there be evidence to show intent to discriminate by the proponents of Prop 8?

Olson: Official title said it all: Eliminates the right of same-sex marriage, and the way it was characterized in the official ballot measure.

O: Our evidence will show that the proponents had sentiments that prohibited these same people from serving in the government. The moral values and religious views drove these proponents to discriminate against L & G.
W: Moral condemnation is not a basis for policy, it’s not in the constitution?
O: No, it is not. LAwrence v Texas, TX said it could regulate gay relationships because of the state’s moral disapproval.
W: Millions of laws are based on moral disapproval. Does that make the law invalid?
O: No, of course not — unless the moral disapproval is based on an immutable category like race, sex, or sexual orientation. These individual characteristics can’t be overcome so they can’t be the basis of law.
O: SCOCA says that L&Gs are told that their relationship is less than by a ban on their marriage. Marriage, culturally and societally, is essential in America. Marriage discrimination adds another chapter to America’s — and california’s long history of disrimination against L&Gs for NO GOOD REASON.

Olson: Leading experts from academy will say significant benefits accrue to couples, families, and communities.

walker: If same-sex couples can enter into marriage, doesn’t that change the institution of marriage?

Oldson: No, it completes marriage — think of the evolution of marriage in our culture, many of which we’ve eliminated. Legislatively and judicially, these changes havbe improved marriage and our society.

Walker: So marriage is stronger now that we’ve removed these restrictions.

Olson: Yes. President’s Obama’s parents could not have married in Virginia and several other states at teh time of his birth. Marriage is weaker when it is restricted, and CA was aleader in removing those restrictions.

Olson: Harm done is significant. Prop 8 harmed individual citizens. Prop 8′s purpose was straightforward but not evil. Took away a right.

W: But not a right they had had very long, correct? MErely months prior, these relationships could become marriages.

O: SCOCA didn’t CREATE the right, it RECOGNIZES the right. [nice save, Ted]

Olson: Attitudes change when people learn about discrimination, as your honor will learn about what it does to these couples in these relationships. They have to explain what in teh world a Domestic Partnership is. We want to open people’s minds to this discrimination.

Walker: If Prop 8 is invalidated, will DOMA be invalid also?

Olson: we don;’t know. This is like Romer v COlorado, where SCOTUS restored a taken-away right. I think, at the end of teh day, that DOMA is unconstitutional. The discrimination against these people on the basis of characteristics they do not choose to have is cruel.

Olson: PLaintiffs will describe what they suffer every day, how demeaning and insulting it is that they are told that they are STILL free to marry, just not the person they love. Evidence will show that this discrimination levels BADGES OF INFERIORITY.

Olson: Defenders of Prop 8 admit that marriage is special in their own filings. That makes same-sex relationships less worthy, less special, less valued. We have only just ended (?) censorship, fired from government jobs, osrtracized, arrested for their private sexual conduct — roots of discrimination run deep, perpetuated by Prop 8, singling out same-sex couples

Olson: Even murderers and childmolestors in prison can get married. These contributing members of society are treated differently than even the imprisioned.

walker: Is this discrimination based on sex or based on sexual orientation?

Olson: BOth. Prop 8 says everyone can marry as long as the marital partner is of the state-approved sex. SCOCA found sexual orientation is highly resistant to change. AG of California admits that Prop 8 is unconstitutional and without merit.

Olson: Proponents mention procreation; they say same-sex couples can’t so marriage is not for them. The state has never been involved in deciding whehter fertility is a requirement for marriage. L&Gs are just as good parents; quality of a parent is not based on the gender of the parent BUT ON THE QUALITY OF THE HEART.

Olson: One of our plaintiffs is raising FOUR children, and our evidence will show they are fine parents raising excellent children.

Olson: Proponents told voters to "protect our children from the presumanbly pernicious view" that L&G people could enter in to loving relationships. It implemented an UTTERLY IRRATIONAL REGIME.

Olson: Four classes: opposite-sex, including the incarcerated. Two: those 18,000 who married during the window but cannot remarry if widowed. Three: people married elsewhere who until 1/1/10 had marriages not recognized by the state. Fourth, the people we represent, who cannot now marry.

Walker; Mr Cooper frequently makes the point that courts should not be involved, that this is a political process. Why shouldn’t the courts stand back from this and let the politicl process play out.

Olson; (very quiet now) That is why we have courts, so that people who may not be the most popular, but are discriminated against by the color of their skin, told they can’t go to some schools. We wouldn’t need a constitution if we left anything to the political process. but that isn’t good for those who are new, or different, or disliked, or thought inferior, or less approved byt the majority.

Olson: This causes unrelenting PAIN. Worthy, loving, upstanding citizens are being hurt every single day, and that is why we are here today.

walker: Thank you.

Now lawyer for the city, assistant city attorney Teresa Stewart.

Walker: How will SF benefit? What is the evidence?

Stewart: We will talk about economic effects for the state of CA, and the carefully calibrated campaign to appeal to people’s dislike and disapproval of L&G people. Proponents say gay relationships can only be a sin….

Walker: Where is the evidence of of harm to the state?

Stewart: You’ll hear about hate crimes linked to the attitudes of proponents.

Walker (interrupts again) what’s that to do with prop 8?

Stewart: I’m trying to tell you. That message leads to hatred, conversion, murders, dropout of school, costs to hospitals and juvenile system. Human and economic costs are borne by us all. You will also hear about health care coverage granted by employers to maried opposite sex couples but denied to domestic partners who are gay. Non-covered persons are an expense to the state, the city, our services. Millions of taxpayer dollars flow from this discrimination.

Stewart: gov’ts develop specialized programs, to investigate hate crimes, businesses suffer when people are afraid. Couples are denied tangible and intangible benefits, which drives economic losses for the state. Prop 8 comes from discrimination and drives discrimination.

Walker: Thank you. Governor have anything? AG have anything? No? Well, I have a question for the AG — why did the AG let this unconstitutional (if it is) onto the ballot?

AG atty: No, the AG develops the language, but can’t prohibit things from being on the ballot.

Walker: You’d better brief me on that. Seems to me pre-election challenges happen, and the AG has no responsibility initiative measures for constitutionality?

AG atty: Under california law, no, that is the province of the court.

Walker: Did the AG take a position prior to the election? Only after this lawsuit filed?

AG atty: I don’t know your honor.

Walker: Get me these answers.

Starting new diary — cooper up now.