Picking up Counsel Cooper and Judge Walker in their colloquy about immutability.

Cooper: Under SCOTUS’s description of political powerlessness, we believe that gays and lesbians pass most tests of deciding political power. The legal test from SCOTUS: does the group have the ability to attract the attention of lawmakers? The Ninth Circuit ruled 20 years ago that gays and lesbians are not politically powerless.

Walker: Isn’t that the most important factor? Women aren’t powerless, there are more women voters, African Americans have made many gains, yet laws that singles them out are subject to strict scrutiny? Isn’t it historical context not powerlessness?

Cooper: It’s interesting: women’s political power, exercising and holding political power, (cites cases) when the Court considers gender a quasi-suspect case — suggested they needed extraordinary protection from the majoritarian political processes. Women held 2% of political offices at the time.

Walker: Don’t our laws show long history of discrimination?

Cooper: We admit gays and lesbians have been subject to a long and shameful history of discrimination. BUt the fact of the history of discrimination is not enough to warrant heightened judicial scrutiny: court requires immutability as well as political powerlessness. Even 20 years ago, court found that gays and lesbians had political power.

Cooper: Gays and lesbians had to rely on their allies, they weren’t politically powerless, that case was decided in 1997. Courts have uniformly decided that heightened scrutiny had all three of these as a requirement.

Cooper: Trying to assess where we’ve been, and what I have in front of me, I would like to take your questions.

Walker: Why should Blankenhorn’s testimony be admitted?

Cooper: I didn’t understand your previous ruling accepting his testimony as provisional, but I really don’t have anything to add to the submission was made about his qualifications. Under the 9th circuit standard, he is amply qualified. His professional life has been devoted to one subject for 20 years: marriage and parenting structires, and the potential for harm to marriage from outside influences. He’s written two books, products of deep and wide study.

Walker: Am I correct that his only peer-reviewed work was not on the subject of this litigation?

Cooper: I don’t remember.

Walker: Fair enough.

Cooper; Your Honor, 9th circuit requirements are very liberal, don’t require mandatory peer review, I didn’t come prepared to re-argue that, the transcript provides what I have to say.

Walker: If in the cool light of morning you’d like to say more on that, I’d be happy to entertain such a proffer.

Cooper: How about a break?

Walker: Until ten minutes after the hour.

PICKING UP AT 3:10 IN THIS THREAD

Resuming now, Cooper at the podium, Walker on the bench.

Cooper: I hope I have sharpened my arguments here as my closing arguments come to a close. Would this case have been different if the CA Supremes hadn’t made gay marriage legal? The state court was asked to stay its decision until Prop 8 was decided, but it did not. I don’t think that would have made a difference. I don’t think the court rendered its ruling and was then overturned by the people — that shouldn’t matter to this case. If the constitutionality system we have would turn on whether the case came to a federal court before or after the state court decided on an issue. Crawford (1982) upheld a CA constitutional amendment that cut back on state remedial tools. Court rejected the contention that the 14th amendment was destructive of a state’s ability to experiment. SCOTUS may have had this case in mind when they said the federal court couldn’t let a state follow its voters’ lead.

Walker: What do we think of that in the context of this case?

Cooper: The CA SUpremes went beyond the 14th amendment, and so the people were empowered to reverse it. The people of the state reserve into their own hands the ultimate tribunal. So the CA Supremes’ decision wasn’t final because the ultimate judicial tribunal was still pending: the peoples’ vote.

Cooper: finally, here — the issue of whether or not there is a resilient basis fo rpeople of this state to believe that redefining marriage presents any basis or concern for harm to marriage.

Cooper; Many people believe that such harm is threatened. But we need to begin with this propostioin: redefining an institution changes that institution. Blankenhorn said changing the definition of a thing changes that thing. When samesex marriage was legalized in Mass, it was called an exquisite turning point by Prof Cott. Their other experts talk about great transformations: like polygamy, like arranged marriage. It will cut the link between sex and diapers.

Cooper; Redefining it will inevitably change it. We can’t predict what that change will begat. This profound change will have some consequences, but we cannot say what they will be. The plaintiffs say these consequences will be good, and we respect that view. But they can’t predict what they will be.

Cooper: Even Cott says it’s impossible to predict, since no one can predict the future.

Cooper: Every demographic expert in the 1930s predicted continued low birth rates, no one predicted the baby boom. No one in the 1950s predicted huge rise in co-habitation. We cannot predict the future. What I have heard most in this case are my own words: I DON’T KNOW

Walker: Your own expert! Your own expert says we’ll be closer to the American ideal if same sex marriage is implemented, what do you make of that?

Cooper: Many Americans believe that, but he also believes the threat of harm to the institution of marriage would be so risky under a same sex marriage regime. Many who went to the polling place thinking — as many American do — that they draw the line at marriage. They beleive this is profound. (Getting wrought here)

Cooper: this could portend grave social consequences. And that is the reality — I couldn’t know. It’s impossible to know. There’s never anyone who knows what tomorrow will bring. But it couldn’t be more rational for the people of California to say — we can’t run that risk. We want to see what happens. Perhaps Mr Olson and his clients whose — whose sentiments, you know, are powerful, will be able to convince their fellow Californians that they are right.

Walker: Citizens who want to marry their same sex partners are disabled. You can only disabled, restrict some citizens if you know of a harm to come. You can’t say what harm will come, can you?

Cooper: If there is a rational basis for such a distinction, yes. If whatever society’s purposes and interests are, if there is a distinction that is relevant, then that distinction can stand. We don’t have to prove that same sex marriage would visit harm. That’s not our burden. I think that’s what your question goes to. We only have to prove includeing same sex couples would serve those interests. We think cases are specific to that point.

Cooper: The CA Court of Appeals upheld the traditional definiation of marriage in the marriage cases, to the heart of our submission: it is the proper role of the legislature not the judiciary to make decisions where there are competing publiuc policy interests. That process is what is at work in this state, and elsewhere in this country. The court has said there is a debate about the morals, the practicalities, the wisdom, that really goes to the nature of our culture. THat debate must continue.

Walker: Thank you Mr Cooper

(one person in the Ceremonial Courtroom applauds. One.)

Walker: Mr Olson, let’s begin there. Isn’t there a danger that a court decision in this case will plague our politics for another 30 years.

Olson: The argument that Mr Cooper makes is the same argument made to the Loving Court. We would have punished as a felony the President’s parents in Virginia when he was born. We’re not talking about breaking new ground here, we’re talking about allowing people the right to marry the person they love.

Olson: Mr Cooper would like to take back his words I DON’T KNOW. He read articles from people who didn’t come into this court. He brought testimony in from some people who didn’t want to be cross-examined by Mr Boies. Some of them decided not to appear in your court after being cross examined by Mr Boies.

Olson: Mr Cooper talks about procreation as central to marriage. Mr Cooper talks about the CHANNELING function, a new term to me today. Now we have a state interest in CHANNELING. Whatever that means. How does preventing same sex couples from marrying threaten the CHANNELING function? Every SCOTUS says marriage is a right of persons, not a state right to CHANNEL us.

Olson: Mr Cooper ended up saying his definition of marriage, not SCOTUS’s definition of marriage, our experts definition of marriage, not something new, not samesex marriage, not interracial marriage. First of all he wants to define marriage as between a man and a woman and then he says it will change his definition of marriage if two men marry or two women marry.

Olson: Of course it will, because that’s how he’s defined marriage. Now what about this de-institutionalization. Blankenhorn talked about that — gonna show you two clips, Cooper says he’s an expert aned we’ll accept that, I’m gonna show you what he said.

Blankenhorn: I meant to say, for our purposes, heterosexuals did the deinstitutionalizing. Deinstitutionalization didn’t just crop up when we started talking about giving same sex couples marriage rights. It started long before that.

Olson: No-fault divorce, NY will be the 50th state to adopt no-fault divorce. This is part of the breakdown of the CHANNELING function? as far as raising children, here’s another clip from Mr Blankenhorn.

Boies: You weren’t meaning to imply that adoptive parents were not as good as biological parents?
Blankenhorn: No
Boeis: You were meaning to say that"
Blankenhorn: Becuase of the rigourous screening of adoptive parents, many of them are better parents on many different measurements.

Olson: So the 37,000 same sex parented children are likely better off than children in opposite sex marriages.

Olson: One or two more things about procreation: if the state’s interest is procreative, what if the state changes its mind? Would anyone here agree the state can cut off the right to marry if it decides people shouldn’t procreate? I don’t think so.

Olson: We mentioned the Maynard case, as did Mr Cooper: the fundamental right to marriage in the contraception (not procreation) interractial marriage (not necessarily procreative) abortion (not procreative) sodomy (not procreative).

Olson: Justice Stevens quoted in Bowers, and then cited his Bowers dissent in the MAJORITY opinion. (READS) about intimate choices, confirming the point.

Olson: You asked why are we talking about this all of a sudden? History of discrimination, ameliorated: no longer against the law to be gay and work for the federal government, walk into a bar, rent an apartment — as psychiatrists have changed their views, no longer a disorder. People have come to understand the differences, the horrible taboos — some of which in the ads supporting Prop 8! — are no longer true.

Olson: People say, why not marriage if these people aren’t so bad, then why can’t they marry?

Walker: There was a tide running, with respect to interracial marriage. SCOTUS took note of that. Is there now a political tide running in favor of same sex marriage?

Olson: Yes there is, but that doesn’t mean a judge can say, I just need the polls to move a little bit more. This case is going to be in a court, some judge is going to have to decide this elsewhere — such a wildly crazy system California has. SCOTUS made the step with Lawrence, the conduct between these individuals was a matter of privacy. Therefore we can’t wait any longer.

Olson: People told MLK, back off, there will be a backlash. His letter from Birmingham jail is the most compelling argument on this question ever written in America,

Olson: Now I need to talk about this new thing Mr Cooper mentioned: the threat of irresponsible procreation. My clients cannot irresponsibly procreate. How will they? We have evidence, we have a trial record, we have the campaign materials — never was this irresponsible procreation mentioned. Cooper cited the two exhibits but they don’t mention procreation. As far as the official ballot pamphlet, it was exhibit 1 in this case. THere’s six paragraphs, I read it all — there’s nothing about procreation, although I did find the words activist judges and protect our children — about six times.

Olson: the motivation for the adoption of Prop 8 is the argument they put before the voters: discriminatory animus, projecting on a group of people that they are different.

Olson: Now in the trial, we relied on a definition of marriage from 14 SCOTUS cases. The 122 year history outweighs Mr Cooper’s discussion of a couple of appellate cases. We had powerful personal testimony, world-leading expert testimony, all kinds of evidence — there was NO evidence on the other side, he said it is a matter of choice. But that’s not true — it’s not a choice, it is a sexual identity.

Olson: And then there was Mr Blankenhorn who really sort of came over to our side. All of the evidence was on OUR side. Mr Cooper cited the "hightech gays" case, which relied on Bowers v Hardwick, which has been overruled by Lawrence, by Hernandez. "Sexual orientation and sexual identity are immutable." That’s the guidance your honor needs to follow.

Olson: Let’s talk about what is happening here. You asked about distinctions, about discrimination based on gender. You asked about a fundamental right to marry, not marry in June, not marry certain people. SCOtUS has told us what’s required. We have people with identifiable characteristics, immutable chaaracteristics, a discrete group you are causing harm, you are excluding them from a special part of society — it doesn’t cut it when you are taking aaway a basic human right without knowing what the threat is, without defining a danger, without understanding the risk.

Olson: You just can’t do this in this case, their behavior and conduct is a protected right but your right to sexual intimacy is the basis of taking away your right to marry. Blankenhorn is absolutely right: the day we end this is the day we become more American.

DONE, VODKA-THIRTY