Good morning from the Burton Federal Courthouse, San Francisco, Ceremonial Courtroom. We are awaiting the start of Closing Arguments today in Perry v. Schwarzenegger, the landmark civil rights trial of the century, which will determine the constitutionality of Proposition 8, passed by Californians the same day Barack Obama was elected president. Prop 8 restricts marriage to one man and one woman, and is being challenged by two California same-sex couples who seek to marry, along with the American Foundation for Equal Rights.

Closing arguments begin this morning at 10:00 a.m. (Pacific time), so those of you on the East Coast might want to grab lunch and be back at your computer screen for the 1:00 p.m. (Eastern time) start.

Lawyers are getting set up now. (9:42)

10:00 AM – 11:30 AM Plaintiffs (argued by Ted Olson and David Boies)

11:30 AM – 11:45 AM City and County of San Francisco

11:45 AM – 12:00 PM Governor, Attorney General and county defendants

12:00 PM – 1:00 PM Lunch

1:00 PM – 3:15 PM Proponents (argued by Charles Cooper)

3:15 PM – 3:45 PM Plaintiffs’ rebuttal

Cooper’s team, most of them, are praying quietly at the Defendant-Intervenors’ Counsel table.

Court reporter asks everyone to please state their name before they begin speaking. We’re about ready to start, folks.

All rise, Vaughn Walker on the bench now.

Clerk calling the case.

Ted Olson and David Boies, Boutrous, Dousseau, other attorneys for the plaintiffs are all introducing themselves to the Judge. Teresa Stewart and Dennis Herrera for the City/County of SF.

Cooper, Thompson, Moss, Paterson, others introduce themselves for the Defendant-Intervenors and Defendants.

Walker: This is an impressive array of legal talent, all focused on one person today. The time we’ve had isn’t what I would have wished or hoped for, I had hoped it would be earlier. But, after all, June is the month for weddings. So perhaps it is appropriate.

W: Let’s get directly to business. Mr Olson.

Olson: Boutrous will offer the schedule.

Boutrous: Today we’ll show some video, we’d like to provide the transcript of it at the end of the day.

Walker: Is that okay, Mr Cooper?

Cooper: Not sure i understand.

Boutrous: (explains again)

Cooper: No objections.

Walker: Good, Mr Olson?

Olson: May it please the Court. We conclude this trialwhere we began, this trial is aboutmarriage and equality. The right to marry has been taekn away from teh plaiintiffs and tens of thousand of other Califonrians by teh state. Their state has stigmiatized them as unworthy of marriage, second class. I want to talk aboiut having the right to marry, marriage from these four perspectives: by the proponents of Prop 8, by the Supreme court, by the defendant intervenors, and finally the perspective of the plaintiffs.

Olson: First, the proponents, Mr Cooper says marriage is all about procreation and children, sexual union of the people who brought the child into the world. It’s quite clear the proponents see marriage as an institution of, by, and for the state — to promote the state’s interest in the raising of children. They also said that racial considerations were never involved in marriage. When you asked, "How does permitting same-sex couples to marry denigrate marriage for heterosexuals?" Counsel responded that marriage would be de-institutionalized: lower marriage rates, nonmarital cohabitation, children raised outside marriage. Isn’t it intersting that the thrust of their argument today is very different from their Prop 8 campaign?

Olson: They wanted to protect our children from knowing that gay marriage is okay, they said it was wrong, sinister, and unusual, and that gays were not okay and gays were not suitable for children.

Olson: Isn’t it obvious that the proponents changed their arguments from the campaign for this trial? They didn’t say anything here about how bad gays are, how wrong it is for children to know about gays.

Walker: Don’t the plaintiffs have the burdenof proof, Mr Olson?

Olson: Yes, we beleive as we’ve shown that strict scrutiny is required because it is the taking away of a fundamental right, putting the plaintiffs into a protected class.

Walker: Are you focusing on the facts of the CA inititative or throughout the country?

Olson: Both, I want to juxtapose their perspective alongside the other persepctives. I want to make the point that they shifted their argument, there is a vacuum in the argument about what the proponents did in the initiative.

Walker: SCOTUS, Minnesota v Cloverleaf, told us that any debatable propostion will support the enactment, one may introduce evidence. There has to be a rational objective.

Olson: There has to be a rational objective not based in fear, per case involving housing of retarded persons. I submit that we do know now that permitting plaintiffs to marry someone of the same sex does not harm heterosexuals in any way, prohibit them from having children or raising them well. In the face of all this evidence, proponents say that best case is that Prop 8 is unconstitutional because CA voters don’t know if heterosexuals would stop procreating.

Walker: They have identified a difference: opposite couples can procreate without the intervention or involvement of another. Isn’t that enough to say it is different from homosexuals?

Olson: We’re talking about because of that onething, taking away the right of privacy, liberty in intimate relationships, allowing these individuals will someone cause others not to procreate, not to raise chiuldren?
Walker: Why aren’t domestic partnerships enough of an accommodation of homosexual couples?

Olson: I am going to show some testimony in a moment. Let’s look at the prism through which this case must be viewed: the perspective on marriage by SCOTUS. The freedom to marry occurs in 14 cases over 122 years: these words are about marriage. SCOTUS calls marriage the most important relation in life. That’s being withheld from clients. IT’s a right of privacy older than theBill of Rights and our country. It’s an intimacy, a liberty right available to heterosexuals as well as homosexuals (Lawrence). Marriage is a right possessed by persons of differnt races, prisoners, those delinquent on child support.

Olson: It is a right of individuals, to persons, not to the state of CA. The right tomarry has never been rooted in procreation. The right to marry has been cited by SCOTUS in cases about contraception, so it can’t really be about procreation!

WALKER: Would this case be different if the CA Supremes had invalidated the 18,000 marriages in the window?

Olson: It would be much worse, in this way: now CA has 18,000 same-sex marriages, while child molesters, prisoners, can marry if they are heterosexual. While homosexuals cannot marry, even though those 18,000 are marry. If they divorce or are widowed, they cannot marry.

Walker: Wouldn’t it have been more rational for the CA Supremes to invalidate those 18,000 marriages?

Olson: No, it would be worse, it would be less capricious and less arbitrary, but it wouldn’t be constitutional.

Walker: Why not?

Olson: SCOTUS calls this a fundamental right, and CA has taken it away.

Olson: I want to show that the rationalizations for Prop 8 are post-hoc. They don’t want our children to know about homosexuals, and now they are talking about the de=institutionalization of marriage. But the plaintiffs have said what marriage means to them. SCOTUS says marriage is the most important relationship. Plaintiffs say marriage means honor, dedication, a public commitment to the world, it’s the most important decision you make as an adult in the world.

Olson: With your permission, I would like to show you plaintiffs’ testimony

(We cannot see what’s being shown, up here. Now it works!)

Boies: Why do you want to marry?
Katani: I want a permanent relationship.
B: Tell me about the man in your relationship
K: I love him more than I love myself, I put his needs ahead of my own, in sickness and health, richer or poorer. I would like nothing more than to marry him.

Olson: Now Kristin Perry
Olson (on video): What effect would marriage have on other acts of discrimination afgaainsst you?
Perry: If I grew up in a world where I could have made this decision things would have been different. There’s something humiliating about wanting to be able to make that decision and not being able to do so. I can’t take that personally, but it is really hard not to. Kids growing up in Bakersfield like I did would live their lives on a higher arc, it would improve their entire life knowing they could marry.

Olson: Now Sandy…. how would marrying change your life
Sandra: It would feel wonderful, I would feel more secure, I would feel more pride, I would feel less like I had to worry about my kids being ashamed or not belonging. there are immediate and personal gains, but also there is the next generation, the world we’re creating for them. I want our kids to have a better life, I want their friends to have a better world. I want my grandchildren to live in a world where if they grow up and fall in love, they can marry whoever they want. Having those legal protections is everything, especially for kids who don’t have ready access to many different kinds of people. Kris and I are big strong women, we’re in a good place. We’d benefit greatly, but others would benefit even more.

Olson (live now) Your honor, if I had time I would replay the testimony of the plaintiffs. We have so much more, though, there are eight experts on marriage, sociology, psychology, economics — their evidence was remarkably consisitent. Prof Cott, for example, is an expert in marriage, she testified it is at its core about feelings for one another, it is about the couple.

Olson: Our experts said the same things about marriage that the SCOTUS has said. And marriage did have something about a racial component. (Plays tape of Cott talking about freed slaves forming legal valid marriages to replace their informal relationships formed during slavery). "Marriage covenant is the foundation of all our rights" — former slave who could now say I DO to his partner.

Olson: Then Prof Cott talked about what marriage means, about having the choice to marry the person youlove. (Tape: Boutrous: What are the key parts of marriage? Cott: Mutual consent, freely given, commitment to establish a household where they will support one another and compose a family. Boutrous: Do you believe a law allowing same-sex marriages would include those aspects? Cott: Seems to me that couples of the same sex have expressed the same motivations for marrying, in that regard, families can now have children that aren’t the result of their own biological procreation. It’s up to each pair, but by excluding same-sex couples,the state is DENYING itself the benefits of marriage for these couples.

Olson (Live now) We learned about Loving v Virginia, when racial restrictions were lifted. Because Prop 8 prevents a complete choice of power, they are entitled to less power, less status, more stigma — the second class relationships are less than. The state’s approval lends prestige. Married couples live longer, are better off in any measure of health. Removing the stigma would produce collateral benefits. Here’s Dr Meyer, an expert of stigma. Meyer: Prop 8 sends a message that people are unwelcome as a part of the community. It adds to the social pressure and environment that causes people to conceal, and concealment is harmful. It sends the same message to gay people that it does to non-gay people: they are a different class of people.

Olson: (Live) I was struck, Your Honor, by that word OKAY appeared again and again in our witnesses. They just want their kids to be OKAY, people just want their reltionships tobe OKAY. Dr Meyer testified that the stigma makes it unusual, abnormal — not OKAY.

Olson: Experts testified that elimination of barriers would strengthen the institution of marriage and our country. We’re not just talking about the people who want to marry: there are 37,000 California children being raised in same-sex households. They would be better off if their parents were married. Even Blankenhorn! (Plays Blankenhorn): My answer is that adopting same sex marriage would be likely to improve the wellbeing of gay and lesbian households and their children.

Olson: I was STRUCK by Dr — oh, I mean MISTER Blankenhorn’s statement. (Plays Boies asking B again): Reads B’s statement about people being viewed as "other" and elimination of discrimination and stigma. He went on to say that it would be a victory for gay relationships. (Tape: Boies: You wrote that I believe that gay and lesbian couples we would be more american on the day we permitted same-sex marriages than the day before. You wrote those words? Yes I did. You believed them? Yes You believe them now? Yes.

Olson: (Live) He said we would be more american the day we permit same-sex marriage — that is the proponents’ principal witness! we have the procreation argument, the deinstitutionalization argument, although I could find no evidece. On the other side, our side, stand 14 SCOTUS decisions, the testimony of our plaintiffs, plus the combined expertise of the best witnesses we could find. Plaintiffs don’t want to change or de-institutionalise marriage. Plaintiffs are in the same position as Jeter or Loving, who had no interest in changing marriage. They just wanted to marry someone they loved who happened to be of a differnt race.

Walker: Cooper said this is about legislation. Do you agree?

Olson: This proposition took away rights, just like Romer did in Colorado. Just as in Lawrence, SCOTUS said that the conduct in same sex relationships is protected. SCOTUS said –

Walker: Is there a YES or NO?

Olson: Well, yes and no. It can be decided based on the proposition itself, and SCOTUS has said again and again. You decided we should have a trial to examine the case, look at marriage and discrimination, I now think that was an exceedingly wise decision. Whatever you decide, we now will have evidence about what really matters, from the experts, from theplaintiffs. THis has been a great education. To many many people. This is the kind of record created in Brown v Board, in the VMI case.
Olson: I don’t know what the legislative facts, but what I do know is the unconstitutional.

Walker: I presume it means it isn’t for the judiciary to decide. So, when it is appropriate for the judiciary to weigh in on crucial social issues? When should the court render a decision about rights and constitutional issues? When is it right for the courts to be involved?

Olson: It depends greatly on how persons, citizens, are affected by what the state is doing to them. If I read back to SCOTUS decisions back to 1886 when a Chinese person in this city had been prohibited from operating a laundry, and then in 1888 SCOTUS looked at marriage. Those kinds of facts we looked at in trial will be available to appeals court, to the American people. It’s an enormously enriching case.

Walker: In Baker v Nelson, SCOTUS felt in 1972 this issue wasn’t something they should weigh in on. What’s changed?

Olson: Romer, Lawrence, ballot initiatives in CA, this case is now ripe. SCOTUS rejected a miscegination case in 1958, then took Loving in 1966. Another case…

Walker: When was that?

Olson: 1977, then SCOTUS took another case because the time was different and the case was different. REversal of Bowers in Lawrence.

Olson: Lawrence was a due process decision, although O’Connor concurred on an equal protection basis.

Walker; In Romer, how important was it that the state took away the right for municipalities to offer protection laws. Is that important?

Olson: SCOTUS felt that the taking away of rights of citizens was very important. And then, Prop 14 in CA went to SCOTUS, which said that they could discern that rights were being taken away. Similarly, rights have been taken away under Prop 8. The only way of redress is amending the constitution. IN each case, rights are taken away and the barrier is placed in the constitution.

Walker: Would this case be different if CA had never allowed gay marriage?

Olson: Well, first the CA Supremes said marriage was permitted.

Walker: So this case is stronger because rights existed in that six-month window.

Walker; What kind of a constitutional system is it when a short Supreme court window creates a right that is greater than citizens’ rights to vote on marriage?

Olson: Well the CA Supremes didn’t CREATE the right, they recognized the right. It existed before, the court simply ackonowledhed it. This case is stronger because rights were taken away. But in another state I would make the same argument; citizens cannot select some of their own to be in a special category of those who cannot marry.

Walker: There is no sanction, no criminality though — it’s not a criminal penalty, its only a removal of –

Olson: That doesn’t matter. In Lawrence, SCOTUS talked about individuals’ rights and protections of personal decisions about marriages, family relationships, procreation, etc. Persons in homosecual relationships may seek automony for those decisions also. taking away the right to marry (a fundamental right) just because someone engages in protected intimate behavior. It can’t be constitutional to take away a constitutional right because a person engaged in a constititutionally protected behavior.

Walker: Is strict scrutiny required in equal protection and privacy as well?

Olson: they are a minority, it is an immutable characteristic, they have been victims of discrimination, there’s been some discussion about the relative merit of their political power. There have been improvements, but SCOTUS says adding protections doesn’t mean people are no longer suspect classification.

Olson: these people lack political power to implement decisions in the legislature. experts testified that we don’t make classifications of people in America; these individuals do not have a choice of the person they which to marry. The state has decided the sex of the person they can marry, so this is sex discrimination. Sexual orientation as well: this isn’t about same-sex marriage. It’s about the right, as in Loving, to marry without limitation. Then base don race, now based in sexual orietnation. This is a govenrment-imposed stigma added to the constitution of the state of CA.

Walker: Where does that leave the domestic partnership laws>

Olson: the way it was before. Some people don’t want to marry, that is true. It’s people who don’t have the right who know how harmful it is. The state of CA can permit all kinds of relationships, but no one aspires as a child to grow up and be in a domestic partnership. Plaintiffs talked about how they didn’t have a celebration when DP-d. You don’t really celebrate that.

Olson: Strict or heightened scrutiny, state’s interest, or whether it’s simply rational basis. Whatever the objective of the proponents wanted to accomplish — and we don’t know since it changes all the time — now they say theydon’t know what the harm would be. "Because I say so" is not a reason for continued discrimination. You can’t have continued discrimination in marriage, in schools, in society, just because we’ve always done things that way. So it’s not a reason to deny the constitutional fundamental right to marry. The state of CA is burdening individuals without doing any good for anyone.

Olson: Heterosexuals won’t abandon their marriages, or stop marrying, or stop procreating simply because their next-door neighbor marries someone of the same sex. The Netherlands evidence collapsed under cross-examination. The so-called de-institutionalization of marriage? Because of no-fault divorce, all over the world, the rate of marriage fell off — heterosexual people, not because of gay marriages.

Olson: W/r/t equal protections, it is the protection of equal laws. In 1886 SCOTUS ruled that denying constituitional rights are the essence of slavery — denied once to slaves, denied to interracial couples but no longer. How can it now be denied to couples who want to marry the person they love, simply because they are the same-sex?

Olson: Wrapping up, sexual orientation discrimination here is the same as in Colorado under Romer. We don’t know the outcome, we did it because we don’t know.

Walker: Can’t voters make a decision that doens’t stand up to scientific scrutiny?

Olson: But as Blankenhorn said, we’d be closer tothe American ideal. But what was their commonsense in this case? I don’t know based on the evidence in this case. I don’t believe it’s about protecting procreation, or about the institution of marriage — there is no evidence that anyone won’t marry because "those people" are marrying. The procreative instinct will not be diminished, thank god.

Olson: Even without all these experts, what were the citizens thinking? They were thinking they could protect their children from know that gay marriage was OKAY. They were voting that gay people were not OKAY. The court asks: what is the legitimate reason, and how does Prop 8 advance it?

Walker: Must I find a discriminatory motive among the voters?

Olson: Romer says motive is important.

Walker: Some discriminations are constitutional. Is this one?

Olson: We heard some awful motives people were being given, but plenty of voters simply might be uncomfortable with gay people. They didn’t hear, and TOO BAD THEY COULD NOT HAVE SEEN — the evidence in this trial. It’s normal, it’s acceptable, it’s not bad conduct. You can a religious view that it’s not acceptable.

Olson: The Loving case had evidence that people’s faith prohibited race-mixing, but SCOTUS decided that they cannot put it into law. I think this law is discriminatory, the evidence is overwhelming, it imposes great social harm, these people pay their taxes, they want to form a family, raise children — we are imposing a burden on them in california that they are second-class, they are less than. The right of marriage,SCOTUS says, is an intimate relatinshpi. If we had a really good reason, maybe we could do thayt. But I haven’t heard that reason.

Olson: We want to improve the institution of marriage, eliminate this stigma, become more American — 14 SCOTUS cases, this all erects an insurmountable barrier to the proponents’ argumetns.

Marcy is going to pick up at Emptywheel with Teresa Stewart, who is speaking now for the City and COunty of CA.