Today the California Supreme Court heard oral arguments over whether or not under state law civilian supporters can take the place of the state, specifically in the Federal case challenging anti-marriage equality Proposition 8.

The hour long hearing was followed by press conferences in which both sides expressed pleasure in the outcome. The court, however, still has 90 days to come to a decision, and both opponents and supporters of Proposition 8 will be watching closely for any indication that that decision is ready.

In August of last year, Federal Court Judge Vaughn Walker found unconstitutional Proposition 8, the law barring marriage between two adults of the same sex created after a November 2008 ballot measure, ruling in favor of plaintiffs represented by the organization American Foundation for Equal Rights. The attorneys leading the charge against the law are former President Bush solicitor general Ted Olson, and former Al Gore lawyer David Boies who in 2000 faced off in Bush v. Gore. While plaintiffs are seeking to restore marriage equality to California, proponents of the measure are attempting to appeal Judge Walker’s ruling.

The 9th Circuit Federal Court of Appeals put the case, Perry v. Brown (formerly Perry v. Schwarzenegger) on hold in January after both Governor Jerry Brown and Attorney General Kamala Harris refused to defend the law in court citing their own constitutional objections. When concerned citizen groups hoping to keep the law on the books attempted to fill in for the state to defend the law, the 9th Circuit asked the California Supreme Court to rule on whether or not the concerned groups can in fact defend the law in place of the state. The legal principle at question is “standing,” which Law.com defines as “the right to file a lawsuit or file a petition under the circumstances.”

Though the 9th Circuit will make the ultimate decision, the appeals certified a question to the State Supreme Court of California on whether state law allows proponents of the ballot initiative to have the right to represent the state in the appeal in place of the state officials themselves. In February the California Supreme Court agreed to address the 9th Circuit’s question which led to today’s hearing.

If the State Supreme Court decides that the interest groups — which include a well-funded conservative website called ProtectMarriage.com — can indeed take the place of the state in defending the law, the 9th Circuit is expected to follow the guidance, allowing the case to proceed through the 9th Circuit despite the non-involvement of any agents of the state. Likewise, if the California Supreme Court decides against the proponents of Proposition 8, the 9th Circuit is expected to concur, which will end the appeals process at Judge Walker’s decision overturning the law.

The Proposition 8 ballot measure was passed in reaction to a decision by the California Supreme Court earlier in 2008 overturning the state’s ban on same-sex marriages, which allowed roughly 18,000 same-sex couples to marry in California during the short window prior to the election. The Supreme Court has since upheld those marriages as valid, though new marriages can not be recognized as a consequence of the proposition. The state also passed a law following the passage of Prop 8 that allows the state to recognize same-sex marriages performed outside of California during that same short window.

Arguing for the proponents of Prop 8, Charles Cooper argued that the interest groups would be given standing if this were a state court case, while Justices weighed whether or not the same standard ought to apply in this Federal Court matter.

Ted Olson (Washington Blade file photo by Michael Key)

Ted Olson, arguing for the plaintiffs, focused on the lack of precedent for such an intervention by an interest group, and claimed finding in favor of the Prop 8 proponents and granting their right to appeal would mean, essentially “amending” the California Constitution. He also argued that allowing Prop 8 proponents to take the place of the state in the case would set a dangerous precedent undermining the authority of the California Attorney General to make such decisions.

“Initiative proponents are elected by no one,” Olson told the justices, as reported by Adam Bink of Courage Campaign and Kate Kendell of the Center for Lesbian Rights. “Proponents took no oath to represent the people.”

When asked what the particular interest the proponents of Prop 8 had in continuing to defend the case, Charles Cooper responded to the justices, “Our interest is to protect and defend our fundamental right to propose initiatives. We have to defend that.”

In response, the justices asked “Doesn’t that right arise before the initiative is qualified?”

“This court has never recognized any distinction between before and after enactment,” Cooper responded. “That wouldn’t make any sense. What the proponents have a right to do is propose valid constitutional amendments. It is inescapable that they then have the right to defend that measure, before OR after enactment.”

However, before his time expired, Ted Olson did his best to counter Cooper’s claims.

“They sure spent a great deal of time and money, and exercised their power to ‘propose and enact.’ What they’re asking for is the power to represent themselves because of a particularized interest, which they don’t have,” Olson argued. “My understanding of California law and case law is that the legislature doesn’t have the power to defend legislation in court unless it specifically deals with the legislative power itself. There is no case, and Cooper agrees there is no case, in which the legislature has the power the proponents are claiming here. I think the initiative power is important, but the constitution of California fundamentally limits the power of the initiative and initiative proponents to exercise their right to propose and defend, that’s it.”

After the hearing, representatives from the American Foundation for Equal Rights were confident and expressed pleasure with the hearing.

“Good justices ask hard questions,” Olson said after the hearing, according to Bink and the Courage Campaign. Olson expressed pleasure with the Supreme Court justices, but emphasized he believes that no matter which direction the Supreme Court decides, the opponents of Prop 8 will prevail.

“We’re sure the US Supreme Court will agree with us,” Olson concluded.

Legal Director from Lambda Legal, Jon Davidson seemed to concur.

“It is often impossible to predict from the questions asked by appellate judges how they will rule and today was no different,” Davidson said in a statement. “All of the judges on the California Supreme Court asked probing questions and seemed concerned about the implications of any decision they might make. We continue to hope that the Court will ultimately decide that small groups of unelected individuals who are answerable to no one should not be able to act on behalf of the state.”

However, Shannon Minter legal director of the National Center for Lesbian Rights, who has argued before the California Supreme Court in favor of same-sex marriage, struck a more cautious tone when discussing her reaction to the hearing with veteran LGBT community journalist, Karen Ocamb.

“I was concerned by the tenor of many of the justices’ questions today,” Minter told Ocamb. “The court has a responsibility to enforce the California Constitution, which gives elected state officials—not private initiative sponsors—the authority to decide whether to appeal a federal court decision invalidating a state law.”

Minter continued, “Both conservative and progressive elected officials have occasionally exercised that discretion in the past by choosing not to expend state resources to defend invalidated measures. Permitting special interest groups to usurp that decision-making authority would dramatically change the current law and take a giant step down the road of turning California into a mobocracy.”

Minter expressed concern that a decision in favor of the Prop 8 proponents could have far reaching effects, going beyond just LGBT issues.

“I was disappointed that, with some notable exceptions, too many of the court’s questions today did not address the specific legal questions before them, but rather seemed to glorify the initiative process in the abstract and to abdicate a searching examination of the California Constitution in favor of emotional appeals to ‘the people.’ The initiative process is already frequently misused to target vulnerable groups, due in part to the Court’s past reluctance to enforce any meaningful limits on the process, even when those limits are mandated by the California Constitution,” Minter concluded.

“I sincerely hope the Court does not compound that mistake by now giving initiative proponents an unprecedented new power to step outside of their proper legislative role and usurp the power that our Constitution gives only to elected state officials in the executive branch.”

Ted Olson and David Boies at the Cato institute (Blade photo by Michael Key)

The two lead attorneys in the widely followed lawsuit seeking to overturn the California ballot measure that bans same-sex marriage in the state and the attorney who successfully argued the Supreme Court case that overturned anti-gay sodomy laws were honored this week in Washington.

The Cato Institute, an LGBT supportive libertarian think tank, held a forum on Wednesday that featured presentations by conservative Republican lawyer Theodore Olson and Democratic attorney David Boies, who have teamed up to fight Proposition 8.

D.C.’s Whitman-Walker Health, formerly known as Whitman-Walker Clinic, was scheduled to present Olson, Boies and Washington attorney Paul Smith with its Joel A. Toubin Memorial Award at a reception Thursday evening. The award recognizes their legal work in support of the rights of LGBT people.

Smith was the lead attorney challenging state sodomy laws in the 2003 case known as Lawrence v. Texas, in which the high court ruled that laws banning intimate sexual relations between people of the same sex in the privacy of their home were unconstitutional.

In interviews with the Blade, Olson and Smith each said they were hopeful that the Lawrence decision would provide an important legal foundation for the Supreme Court to overturn Proposition 8 when that case reaches the high court possibly within the next two years.

Olson worked as U.S. Solicitor General defending federal laws before the Supreme Court during the administration of President George W. Bush. Prior to becoming solicitor general, Olsen represented Bush in a highly controversial Supreme Court case credited with deciding the outcome of the 2000 presidential election in favor of Bush over then Vice President Al Gore in a dispute over challenged ballots in Florida.

Olson told the Blade he doesn’t see his role in seeking to overturn what he calls a “highly discriminatory” ballot measure as a contradiction to his status as a conservative.

“I think those of us in the political world who care about individual rights and individual liberty and individual freedom and treating our fellow citizens with respect and decency and fairness and understanding ought to be in favor of changing laws that discriminate against people on the basis of sexual orientation,” he said.

The California-based American Foundation for Equal Rights, which retained Olson and Boies to challenge Prop 8 in court, was initially questioned by some LGBT groups and progressive legal experts for taking on too great a risk in seeking to bring the case before the U.S. Supreme Court. Some argued that the conservative-leaning court could very likely uphold Prop 8’s constitutional standing, setting a potentially harmful legal precedent.

Olson said he and Boies considered those concerns when they decided to take on the case.

“We felt it was important to go forward because we’ve been approached by persons who felt their constitutional rights were being denied to them,” he said. “And we felt that as lawyers, we couldn’t say, well we’re not going to represent you or we’re not going to try to vindicate your constitutional rights.”

Smith said he’s hopeful that the Supreme Court will uphold a lower federal district court ruling in Massachusetts, which declared as unconstitutional a provision in DOMA that bars the federal government from recognizing same-sex marriages legalized by states.

He said he and other attorneys seeking to overturn the DOMA provision banning federal recognition of same-sex marriages received an important boost when the Justice Department decided earlier this year to no longer defend the law in court. President Barack Obama has said he favors the full repeal of DOMA by Congress.

The president said he also believes DOMA is unconstitutional and determined the Justice Department should end all efforts to defend the law in court. The Republican-controlled U.S. House of Representatives has since stepped in to arrange for legal counsel to defend DOMA as it makes its way to the Supreme Court.

Newly out former Republican National Committee chair Ken Mehlman has
talked with a gay conservative group about possibly taking on a role
in the organization.

Jimmy LaSalvia, executive director of GOProud, said the organization
recently talked with Mehlman, but declined to elaborate on the nature
of their discussions. When asked if GOProud had offered Mehlman a
position on its board, LaSalvia declined to comment. He also declined
to say whether GOProud has offered Mehlman a speaking role at the
upcoming HomoCon convention in New York.

Mehlman came out as gay in an interview with the Atlantic on Wednesday.

“We’ve talked to him,” LaSalvia said. “He’s certainly engaging with
the community as evidenced from the fundraiser that he’s doing for the
Ted Olson case.”

LaSalvia was referring to the upcoming fundraiser that Mehlman
reportedly agreed to take part in for the American Foundation for
Equal Rights, the organization responsible for the federal lawsuit
against Proposition 8 in California.

Attorneys Ted Olson and David Boies (front) are waging the case against Proposition 8, which banned same-sex marriage in California. (Photo courtesy of Equal Rights Foundation)

A federal judge in California has lifted his self-imposed stay on the ruling he handed down overturning the state’s ban on same-sex marriage, but he ordered that the stay must remain in effect until Aug. 18.

The action by U.S. District Court Judge Vaughn Walker came as crowds of same-sex couples waited anxiously on the steps of San Francisco’s city hall, hoping to be able to obtain marriage licenses within minutes of any decision to lift the stay.

“Because proponents [of Proposition 8] fail to satisfy any of the factors necessary to warrant a stay, the court denies a stay except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner,” Walker wrote in an 11-page ruling released Thursday.

Walker’s ruling came eight days after he issued a strongly worded decision overturning California’s Prop 8 on grounds that it violates the U.S. Constitution’s equal protection and due process clauses. Same-sex marriage opponents who defended Prop 8 were expected to immediately challenge Walker’s lifting of the stay before the Ninth Circuit U.S. Court of Appeals, where they are appealing the case.

Activists on both sides of the marriage issue were unsure whether the appeals court would have time to issue its own stay on Walker’s ruling overturning Prop 8 by Aug. 18 or whether the appeals court would reject a stay and allow same-sex marriage to resume in California. Both sides plan to take the case to the U.S. Supreme Court if they lose on the appeals court level.

Jennifer Pizer, senior attorney for Lambda Legal, an LGBT litigation group, said all federal appeals courts have a standard process in place for hearing emergency motions for stays on lower court rulings.

She said it’s “quite possible” that a required three-judge panel of the Ninth Circuit Court of Appeals would be ready to hear arguments for a stay and rule on it before Walker’s Aug. 18 deadline.

“The evidence presented at trial and the position of the representatives of the State of California show that an injunction against enforcement of Proposition 8 is in the public’s interest,” Vaughn said in Thursday’s ruling. “Accordingly, the court concludes that the public interest counsels against entry of the stay proponents seek.”

Pizer noted that Walker raised a potentially explosive issue in his ruling Thursday lifting the stay when he cited legal precedent indicating Prop 8 supporters may no longer have legal standing to appeal the case to the Ninth Circuit.

Walker noted that legal precedent suggests that the state may have sole legal standing to appeal a case like the one involving Prop 8. This could sideline private parties seeking an appeal.

California Gov. Arnold Schwarzenegger and the state’s attorney general, Jerry Brown, filed papers last week that sought to immediately reinstate same-sex marriage in the Golden State. Last year, when same-sex couples filed their lawsuit seeking to overturn Prop 8, Brown refused to defend the same-sex marriage ban law and Schwarzenegger did not challenge Brown’s decision.

That meant California effectively chose not to defend a state law, forcing private groups and legal activists supportive of Prop 8 to fill in for the state in defending the law in court.

Walker said in his ruling Thursday that the private groups did have standing in the U.S. District Court, but a lack of support for an appeal by the state makes it doubtful that Prop 8 backers can file the appeal.

“If, however, no state defendant appeals, proponents will need to show standing in the court of appeals,” he said in his ruling. “Proponents’ intervention in the district court does not provide them with standing to appeal.”

California voters passed Prop 8 in November 2008 in the form of a state constitutional amendment banning same-sex marriage. The vote came less than a year after California’s Supreme Court overturned an earlier ban on same-sex marriage, enabling gay and lesbian couples to marry up until the enactment of Prop 8.

Vaughn’s decision Thursday to lift his stay on his own ruling came on the same day that CNN released a public opinion poll showing for the first time that a majority of Americans support same-sex marriage.

According to CNN, 52 percent of the respondents to the poll replied “yes” when asked, “Do you think gays and lesbians should have a constitutional right to get married and have their marriage recognized by law as valid?”

Forty-six percent of the respondents replied “no” to the question and 2 percent had no opinion, CNN reported. The poll has a margin of error of plus or minus 4.5 percent, CNN said.

Vaughn’s action also came two days after the American Bar Association’s House of Delegates approved a resolution supporting legal recognition of same-sex marriage. The ABA is considered the nation’s preeminent membership organization of legal professionals, including lawyers and judges.

Upon issuing his Aug. 4 ruling overturning Prop 8, Vaughn placed an indefinite stay on the ruling, while giving the opposing parties in the case until Aug. 6 to file motions on whether they would like the hold to be lifted or remain in place until the Ninth Circle appeals court acts on the case.

Attorneys for the group that defended Prop 8 filed papers calling for retaining the stay. But in a development that surprised some political observers, Schwarzenegger, a Republican, filed papers asking Vaughn to lift the stay so same-sex couples could begin marrying immediately. The state attorney general also filed papers seeking the lifting of the stay.

For many LGBT activists, the most efficient way to get an up-to-the-minute handle on the state of the gay rights movement — and also have some fun mingling — is the annual Equality Forum, always in Philadelphia and slated for April 26 to May 2. With about 50,000 in attendance, organizers say it’s the largest gay civil rights forum in the world.

“It’s really the one location where all our major issues are discussed and it really brings together literally all the major and preeminent movement leaders and we’re very proud of the fact that there’s no registration fee and so many of the programs are free,” says Malcolm Lazin, the Forum’s executive director and one of its founders.

The International Equality Dinner, the event’s central event which is slated for May 1 at Philadelphia’s National Constitution Center, will feature an especially heady list of honorees this year. David Boies and Ted Olson, the straight attorneys working to have California’s Prop 8 overturned, will receive a role model award. CNN’s Tony Maddox will pick up a business leadership award on behalf of the network. U.S. Sen. Bob Casey, Pennsylvania’s Gov. Ed Rendell and Maryland’s Gov. Martin O’Malley are scheduled to attend. Several leaders from national gay rights groups will also be there representing some of the movement’s most influential players. Dan Choi, an officer in the U.S. Army facing discharge because of his outspoken gay rights activism, is also scheduled to attend.

Past honorees have included straight allies like San Francisco Mayor Gavin Newsom and New Mexico’s Gov. Bill Richardson and lesbian tennis legend Martina Navratilova.

“We’ve always honored folks who’ve been on the cutting edge of our movement and folks who perhaps when they step forward, weren’t always as appreciated by our community but we believed in what they were advancing,” Lazin says.

The Forum also promises seven days of panels and parties. The highlight, organizers say, will be SundayOUT! at the Piazza & Liberties Walk on May 2, which is a seven-hour street festival slated for Philly’s newly revived Northern Liberties area, an old brewery that’s been dubbed “the Piazza.”

No registration is required. Except for the dinner, where tickets run $200, most events cost between $5 and $10. Panel discussions are free. Hotel Palomar Philadelphia is the official Forum hotel.

Organizers say a must-see event is the Brian Sanders Dance Tribute on April 30 at Merriam Theater. The 11th annual Gay and Lesbian Art Exhibit will feature the works of photographers Richard Renaldi and Marc Yankus. A panel featuring appointees of President Obama will highlight the visibility of LGBT people in this administration. Two new LGBT-themed documentary films will be shown and nine parties are scheduled. Visit equalityforum.com for a complete schedule of events.

Judd Proctor, a Richmond, Va., resident who produces LGBT history radio show “The Rainbow Minute,” attends the Forum annually and says he finds the experience enriching.

“There’s a little bit of something for everyone who attends,” he says. “I especially enjoy the evening panels based on current LGBT topics. They always have activists and people in the know and the Q&A sessions give attendees a chance to participate and meet leading experts and activists nationwide.”

Bruce Yelk, who heads the gay division of Greater Philadelphia Tourism Marketing Corporation, the city’s marketing arm for leisure tourism, works with the Forum to help promote its events and coalesce its offerings with other aspects of gay Philadelphia which, Yelk says, has become one of the East Coast’s most gay-friendly cities.

“We have a very strong community,” Yelk says. “I don’t know if anybody has a number other than the traditional 10 percent [for LGBTs]. We’re not a Ft. Lauderdale or a Miami, not a resort destination, but a traveler who has gone to the traditional beach resorts and really wants a more sophisticated sort of vacation, with great museums, we have a lot of that. It’s hard to compare to New York, but we do offer lots of arts and culture here. Also our gayborhood is right in the heart of the city. You don’t have to get on a train and travel 25 minutes from where all the tourists would be.”

The Equality Forum is just one of 10 gay events scheduled for spring in the city. Mr. Gay Philadelphia, a celebrity-judged pageant, is April 17 at Voyeur Nighclub. Also that week is Philadelphia Black Gay Pride. Every Saturday in May is the Frontrunners Philly Fun Run and a Pride event in nearby New Hope, Pa., in Bucks County (May 13 to 16). And the Liberty Bell Classic, the city’s largest LGBT sporting event, hosts a weekend of softball competitions at the end of May (go to visitphilly.com or uwishunu.com for more information). Philly Gay Pride is June 13. QFest, Philly’s gay film festival, is July 8 to 19.

And if you haven’t been to the City of Brotherly Love in a few years, some aspects of nightlife have changed. Tabu Lounge & Sports Bar, which opened this month at 200 South 12th St., is the newest space. Several others, including Voyeur Nightclub at 1221 St. James St. (formerly Pure), Q Lounge and Kitchen at 1234 Locust St. (formerly Bump) and Westbury Bar and Restaurant at 261 South 13th St., have had major renovations. JR’s Lounge (no connection to Washington’s JR.’s) opened about six months ago at 1305 Locust St. It was formerly Camac Bar. Yelk says the pizza there is first rate.

And speaking of food, a couple new gay restaurants are also worth checking out, Yelk says. Look for Sampan (sampanphilly.com) at 124 South 13th St.; Chifa (chifarestaurant.com), the latest from superstar chef Jose Garces at 707 Chestnut St.; and nearby Knock Restaurant and Bar (knockphilly.com) at 225 South 12th St., which Yelk says is the best place to go for Friday night happy hour.

Everyone packed into U.S. District Court Judge Vaughn Walker’s courtroom in San Francisco on Jan. 11 knew they were watching history.

On one side of the court sat lawyers Ted Olson and David Boies, partisan foes in Bush v. Gore. Now the straight pair pledged to prove that same-sex couples deserved the fundamental right to marry. For them, the meaning of the U.S. Constitution is at stake.

On the other side sat Republican attorney Charles Cooper and a handful of supporting lawyers. It was what some might consider a strange sight. After the passage of Proposition 8 in California, the loss of same-sex marriage in Maine, New York and New Jersey and the gloating by ProtectMarriage affiliates such as the National Organization for Marriage, the anti-gay forces looked weak. In fact, throughout the trial, they portrayed themselves as David fighting Goliath.

Retired philosophy professor Linda Hirshman, reporting for The Daily Beast web site, pronounced the matchup a modern day Scopes trial.

“In the confrontation between an irrefutable religious standard and a worldly empirical survey, the challenge to California’s prohibition on gay marriage reveals a fissure that runs throughout American history: Are we modern or are we medieval?” Hirshman wrote. “Do Americans live together in a social contract for our material well-being, or are we following ancient traditions of how to live, because tradition is a better teacher than reason? This issue does not surface often in the United States, but it did most powerfully almost 90 years ago in Scopes vs. the State of Tennessee, the ‘monkey trial.’ And it did so again this week.”

The Scopes trial pitted the teaching of secular science and intellectual freedom against traditional Bible-based Christian fundamentalism. It’s a clash as old as St. Thomas Aquinas’ “Summa Theologiae” and as fresh as the 2005 debate over whether creationism should be taught alongside the theory of evolution in the Kansas public school system.

For Prop 8 supporters, the trial is now posited as if freedom of religion itself is at stake. In a Jan. 26 column, “Putting Religion on Trial?”, NOM president Maggie Gallagher wrote that Olson and Boies are trying to invalidate the religious beliefs of millions of voters who hold that homosexuality is a sin and marriage is a sacrament between one man and one woman.

“The stakes are high. And the argument they will be asking the Supreme Court to endorse is this: Only bigotry, hatred and unreason explains why anyone cares about the idea that to make a marriage you need a husband and a wife — religious views of marriage are just anti-gay bigotry,” Gallagher wrote.

Anti-bigotry is one of the central elements to proving the case that lesbians and gays have historically been subjected to discrimination and deserve equal protection and due process under the U.S. Constitution. Walker, the Ninth Circuit Court of Appeals and perhaps the U.S. Supreme Court will decide if the plaintiffs proved that gays are a “discrete” minority, possess an “immutable” characteristic and are powerless to protect themselves in the political process.

“We said on the first day of [the] trial we would prove three things,” Boies said at a news conference after the evidentiary trial testimony ended Jan. 26. “Marriage is a fundamental right; that depriving gays and lesbians the right to marry hurts them and hurts their children; and there was no reason, no societal benefit, in not allowing them to get married.”

Evan Wolfson, founder of Freedom to Marry, said the arguments were compelling.

“Our side powerfully showed that California’s selective stripping away of the fundamental freedom to marry from a vulnerable minority lacked any legitimate reason, and harms families while helping no one,” he said. “Fourteen years and tens of millions of dollars after our Hawaii case, the anti-gay opponents had literally nothing new to put forward to defend the discriminatory denial of marriage.”

Olson and Boies entered reams of documents into evidence and put 17 witnesses on the stand. The plaintiffs spoke movingly about their loved ones and a slew of expert witnesses contributed a wealth of knowledge to the evidentiary record.

In some cases, the testimony was almost ironic. For instance, in his opening statement, Cooper said “the purpose of the institution of marriage, the central purpose, is to promote procreation and to channel narrowly procreative sexual activity between men and women into stable enduring unions. … [Marriage] is a pro-child societal institution.”

But Harvard University professor Nancy Cott noted that, “There has never been a requirement that a couple produce children in order to have a valid marriage. … And known sterility or barrenness in a woman has never been a reason not to allow a marriage. In fact, it’s a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile.”

ProtectMarriage only called two of their five witnesses to the stand. So Olson and Boies introduced the depositions of the dropped witnesses into evidence, which appeared to bolster the plaintiffs’ case.

New Yorker contributor Margaret Talbot wrote that Boies’ cross-examination technique “was a little like watching your cat play with his food before he eats it.”

Indeed, Boies seemed to make mincemeat of official Prop 8 proponent Hak-Shing William Tam, who was called as a hostile witness. Tam stood by claims that gays were 12 times more likely to molest children, “based on the different literature that I have read.”

ProtectMarriage called California’s Claremont McKenna College political science professor Kenneth Miller, whose credibility as an expert on gay political power was mightily challenged by Boies on cross examination. Boies also read from a book Miller co-authored that ballot initiatives or “direct democracy can actually be less democratic than representative democracy.”

ProtectMarriage’s second witness, David Blankenhorn, was so combative, the judge reprimanded his demeanor. Boies had Blankenhorn, author of “The Future of Marriage,” go down a list of “possible positive consequences” of same-sex marriage and mark the statements with which he personally agreed.

Among the many positive statement with which Blankenhorn agreed were, “gay marriage would extend a wide range of the natural and practical benefits of marriage to many lesbian and gay couples and their children,” and “same-sex marriage would likely contribute to more stability and to longer-lasting relationships for committed same-sex couples.”

Chad Griffin, chair of the board of the American Foundation for Equal Rights, said he was thrilled that the trial put “those who attempt to provide justification for discrimination” under oath for the first time.

“I think they found in a court of law, it’s quite different from on a political campaign where you can say anything and get away with it,” Griffin said. “In a court of law, you’re under oath and you actually have to tell the truth — and you have to answer to those truths under oath. And I think that proved difficult for the defendant-interveners in this case.”

SAN FRANCISCO — Attorneys working to eradicate California’s Proposition 8 played up the adverse effects it’s had on same-sex couples during the first week of the landmark federal trial.

Attorney Ted Olson, who’s helping represent plaintiffs seeking to strike down the law that bars same-sex couples from marrying, encapsulated the case during his opening arguments.

“There is no rational justification for this unique pattern of discrimination,” he said. “Proposition 8, and the irrational pattern of California’s regulation of marriage, which it promulgates, advances no legitimate state interest. All it does is label gay and lesbian persons as different, inferior, unequal, and disfavored. And it brands their relationships as not the same, and less-approved than those enjoyed by opposite-sex couples.

“It stigmatizes gays and lesbians, classifies them as outcasts, and causes needless pain, isolation and humiliation.”

Among the first witnesses called during the trial, which is expected to run several weeks, were experts who’ve studied the societal effects of same-sex marriages. Harvard University professor Nancy Cott at one point was asked what effects such unions have had on divorce rates.

“My only comment is from observing my own state of Massachusetts, where there has been same-sex marriage for five years,” she said. “Massachusetts has [the] lowest divorce rate in country. Since five years ago, [the] divorce rate has fluctuated slightly, but if anything, [it] is lower.”

Speaking outside of court, plaintiff questioner Theodore Boutrous Jr. lauded Cott as an “expert on the history of marriage in the United States” who helped propel the plaintiffs’ case forward during the trial’s first week.

Boutrous said Cott made it clear “that the history of marriage in the United States can be characterized by the fact that this nation has time and again knocked down and eliminated barriers to marriage that were discriminatory and unfair.”

“It was very powerful to hear her talk about the history of discrimination, beginning with slavery and when the slaves were freed,” he said. “One of the first things that happened was an explosion of people who had been slaves wanting to get married because of this badge of citizenship and freedom.

“And other restrictions on women, on Asians on other groups who were targeted in our past — those restrictions were struck down as our society recognized those were unfair. That is a powerful testament to liberty and due process and equal protection in this country.”

Special to DC Agenda
For more on the Prop 8 trial, visit lgbtpov.com

After the second day of the federal trial challenging California’s Proposition 8, attorney Ted Boutrous, representing the plaintiffs, and San Francisco Chief Deputy City Attorney Therese Stewart, representing the city, met with reporters and bloggers to discuss the day’s testimony.

American Foundation for Equal Rights board president Chad Griffin introduced the attorneys and guests Dustin Lance Black, Stuart Milk and Cleve Jones.

Boutrous, an attorney with Prop 8 challenge lead attorney Ted Olson’s law firm of Gibson Dunn, started off the press availability with a summation of where he thinks the case stands on Day Two.

Ted Boutrous:

I think we had another extraordinary, powerful and informative day in terms of what marriage means in this country. As the day ended, [attorney] Terry [Stewart] was putting on professor [George] Chauncey from Yale who talked about the deep-seated discrimination against gay men and lesbians that we’ve seen this country. I’ll let her address that testimony.

Proceeding professor Chauncey was professor [Nancy] Cott of Harvard, a renowned expert on the history of marriage in the United States who made several things very clear: that it’s indisputable and irrefutable that the history of marriage in the United States can be characterized by the fact that this nation has time and again knocked down and eliminated barriers to marriage that were discriminatory and unfair.

It was very powerful to hear her talk about the history of discrimination, beginning with slavery and when the slaves were freed. One of the first things that happened was an explosion of people who had been slaves wanting to get married because of this badge of citizenship and freedom.

And other restrictions on women, on Asians on other groups who were targeted in our past — those restrictions were struck down as our society recognized those were unfair. That is a powerful testament to liberty and due process and equal protection in this country.

And for those of you who were there: you would have seen that the proponents’ counsel in his opening statement, he made several statements about history and tradition and what marriage means and professor Cott destroy the premises and demonstrated — without any real suggestion that she wasn’t correct — that he was wrong.

And so we’re very pleased with this morning and with this afternoon and we think our case is shaping up extremely strong.

Stewart:

I’d have to agree with that. Unfortunately I didn’t get to see all of professor Cott.

Professor Chauncey is a Yale historian and really one of the first people ever to specialize in the study of our history as gay men and lesbians. He didn’t talk about it on a personal level, but basically the censorship that he talked about that happened with respect to the film industry in Hollywood also, to a large degree, happened in academia.

And for that reason, gay people’s history is a story that really hasn’t been told — only recently have people begun to study it. Many of the things we’ve talked with him about over the course of preparing for this case and back in the marriage cases, are things where he would say, “Well, you know that’s an area that really needs further study.” So he is a remarkable man who took risks to get tenure studying something that hadn’t been studied because of stigma.

And he is really an amazingly powerful and knowledgeable witness. He didn’t give a comprehensive history because we would have been here for three or four days at least.

But he gave examples that I think are really representative of the key ways in which gay people have been walled out of culture in America and kept from fully participating as citizens, whether it be employment or sort of being completely left out in the media. And for many of us, that history is actually — because we’re kind of old, we remember some of it. We know it because it’s part of our lives.

I think for many people who are not gay, that history isn’t something they’re familiar with so they don’t see Proposition 8 in the context in which it actually occurred, which is the demonization that went on is the focus on sex perversion that we were accused of.

And the imagery that was used in the Proposition 8 campaign really can’t be viewed in a vacuum, and I think professor Chauncey’s testimony demonstrated that. When you understand what’s been said about gay people in the past and for how long and in a period where no positive depictions were happening because of censorship, that is a lasting and enduring imagery, and it’s called up to vote by much of the messaging — particularly the messaging around children.

So I felt very good about professor Chauncey’s testimony today and I hope it will eventually be posted on YouTube because I think it’s a lesson that frankly many gay people — I’ve learned more about gay history in the course of this case and in the California marriage cases than I knew before by a long shot. And I’m privileged to work with the Gibson Dunn folks and the Boies Schiller folks in this case.

Reporter question:

When Mr. Pugno was in here earlier, he said that he thought that Professor’s Cott’s testimony was a disaster for you guys because it backfired and boomeranged and she was forced to admit that throughout the history involving the institution of marriage that it was till always a man and a woman. Can you respond to that?

Boutrous:

Let me put it mildly. I think he’s being radically overly optimistic on his part. The cross examination largely consisted of counsel for the opponents reading pieces of different articles from different people into the record — which were not even admitted into evidence.

And professor Cott could not have been clearer that the history and tradition of marriage in this country will be strengthened, and by recognizing the ability and the right of individuals of the same gender to marry she said that the prior discriminatory features of marriage that had been eliminated when they were eliminated — that strengthened marriage.

She talked about how the fact that men and women gender roles used to be dictated in a way that was very — she said asymmetrical — that those things had been broken down which — all of that comes together, as she put it — to strongly support a trend in changes in laws governing marriage that is perfectly consistent, indeed supports recognition of the right of individuals of the same gender to marry.

So we were very pleased with her testimony. And in fact, I can’t think of a single point on which they made any headway whatsoever and in fact, I thought that, to the extent that there were any relevant questions asked, professor Cott demolished the lawyer for the other side.

Reporter question:

Can you put into context why all these aspects of marriage matter? The economics of marriage that we’re going to be hearing about a little later in the week, the history of marriage, discrimination, the history of discrimination? In the end, when you sum everything up, what difference is that going to make to the constitutionality of Proposition 8?

Stewart:

On the history of discrimination — and I’m going to let Ted talk about the history of marriage — the most obvious relevance on the history of discrimination is that when a court decides whether a group of people who are seeking to have the court apply a high standard of review to discrimination against them should get that high standard of review, sometimes called strict scrutiny.

The court considers as one of the most important factors whether there’s been a history of discrimination against them and whether that history has in any way hampered their ability to represent themselves in the political process. So in a large part today, that’s what professor Chauncey’s testimony was about.

The second aspect of it, as I mentioned earlier, was that in order to understand the messaging in the Proposition 8 campaign, remember there have been, as Dr. Chauncey testified, waves of these referenda and their messaging has gotten a little more subtle over the years and little more coded. But in order to understand the messaging of today, we have to be aware of what are those stereotypes that are ingrained in our head about gay people and without really fully understanding the history of that same kind of messaging, even though it was more shrill and more nasty in tone early on, it tells you a lot about this whole focus on children and on consequences to straight people and this dangerousness idea about gay people that’s implicit and explicit in messaging in Prop 8.

Boutrous:

The other issues, for example the history of marriage, one of the reasons it matters is the history of marriage in this country, when a scholar like professor Cott takes an objective look at it, destroys all the arguments that the Proponents of Prop 8 make.

And as professor Cott noted, each time a discriminatory barrier was taken down or eliminated in this country. Similar types of arguments, in terms of the effect on the institution were made, alarm bells were sounded and each time they’ve proven to be false.

And as professor Cott testified, when discrimination was eliminated, the institution of marriage was even stronger. And so we think it shows the illegitimacy of the argument on the other side, the irrationality of the arguments on the other side when one looks at the history of marriage, of the economic consequences of allowing marriage.

And as professor Cott testified, marriage adds stability and is good for the government because it saves the government costs. It helps the government govern, so in that way, it’s a positive thing and the arguments made on the other side are simply irrational.

Reporter question:

Frank Schubert was just here a moment ago and I asked him if he was going to testify and he said he hasn’t been called. So I’m wondering if you’re considering, given all this discussion about messaging, if you’re going to call him and go directly to the source about messaging.

Boutrous:

We have listed Mr. Schubert on our witness list and we are going to watch how things unfold to determine precisely who our witnesses are. We haven’t called him, we haven’t provided notice to the other side when or whether we’re going to call him, but we do have him on our witness list, so we have the ability to call him. So we’re going to see how it goes. See what we get in. We want to move briskly here and put our case before the judge. So we’re just going to see and take it one day at a time.

Reporter question:

But I don’t understand. If he’s the creator of the message, why don’t you go directly to the source of the message that’s harmful?

Boutrous:

We have a lot of good material from his deposition. And we have a lot of good material from his — he wrote an article in which he basically bragged about the messaging and the strategy which, as professor Cott suggested today was like ripping Page 1 out of the discriminatory handbook that plays on these messages related to children, that have nothing to do with marriage.

And as professor Cott talked about today, as a traditional matter, [this] has nothing to do with marriage. And so we have a lot of good material that really demonstrates the issue and the messaging issues. But we’re going to take a look. I’m not saying we’re not…

Reporter question:

Forgive me for pressing the point, but it’s different to have an article. He’s on videotape saying the same thing. That’s different from having him on the witness stand and under oath and you ask him hard questions about it.

Stewart:

Can I just add one thing? One thing you have to understand is that the strategy on the other side has been to avoid and really hide from testifying in deposition and for providing documents that reflect the messaging in their campaign. Now it’s not that they’ve given us nothing, but it’s been like pulling teeth to get it. And in the deposition, when asked about the messaging, they were unwilling to answer it.

I’ll give you one example. Today, one of the exhibits to which my opponent objected was a sign that is a www.ProtectMarriage.com sign that says, “You have the power to protect your children” and has this family — this man and woman cradling this child as though there is something to protect the children from. You know, they’re not going to be able to hide the messaging because they put it out on the Internet, on signs and everywhere. And that stuff will come into evidence.

But the question about calling witnesses and how they’re called and how we deal with them is a little bit complicated by the kind of see no evil, hear no evil, speak no evil approach of the Yes on 8 people after the campaign.

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We’ve already seen Proposition 8 plaintiff attorneys David Boies and Ted Olson make a splash this week in court as the long awaited trail got underway. In the video above, the dynamic duo take their case to “The Rachel Maddow Show.”

There’s some great background in this piece, but if you want to skip to the interview with Boies and Olson, jump to the 2:41 mark.

Special to DC Agenda
For more on the Prop 8 trial, visit lgbtpov.com

It seemed that everyone’s nerves were on edge on the first day of the historic federal challenge to California’s Proposition 8 in the San Francisco district courthouse, just a block or so away from where all those thousands of jubilant couples married illegally in 2004 at City Hall.

All this amid a compliment from the San Francisco mayor who helped make the marriage issue matter: @GavinNewsom Hats off to David Boies & Ted Olson for their effort to overturn Prop 8.

Many Twitter users are following the trial as it happens, including

You can follow these Tweeters live during the trial, per Eden James from the Courage Campaign: Ilona Turner of National Center for Lesbian Right at @ilona, American Foundation for Equal Rights at @AmerEqualRights, the American Civil Liberties Union of Northern California at @ACLU_NorCal and the Courage Campaign at @CourageCampaign.

There has been a lot of good reporting on today’s trial — especially from Associated Press reporter Lisa Leff and Courage Campaign founder and blogger Rick Jacobs, whose work I discuss in more detail below.

So I’m going to write about some of the aspects of today’s trial that haven’t really been written about.

At 6:30 a.m. Monday, Molly McKay and Marriage Equality USA lead a rally in the freezing darkness outside the courthouse, as if to say that the marriage equality movement is ushering in a new dawn.

There was only one sign saying marriage is between one man and one woman, notably held by two men.

Leff, on her cell phone, broke the big news of the morning to journalists and bloggers hanging outside the courtroom on the 17th floor: the U.S. Supreme Court denied a request to broadcast the trial. The Court also prohibited the transmission outside the San Francisco federal court. A number of us worried about the many people that were on their way to district courts that had been designated as viewing areas.

I asked Chad Griffin, president of the board of the American Foundation for Equal Rights, which is sponsoring the lawsuit, if they would post the trial transcripts on their web site. He said: “Anything we are allowed to do, we will do.” With Adam Umhoefer and Yusef Robb on top of their communications, I think they will post as much as they are legally able to. And the AFER team has been very strong in their support for public access to the hearing.

That’s also been the Courage Campaign’s most recent push and to illustrate the point, Jacobs brought more than 140,000 comments from people seeking access to the hearing. Jacobs, for his part, stepped up and live-blogged the first day of the trial after it became apparent there were virtually no transmissions out of the hearing room. In fact, they created a logo parodying Yes on 8 for a new blog titled Prop8TrialTracker.com.

After the introduction of all the lawyers, Judge Vaughn Walker took note of the Supreme Court ruling by Justice Anthony Kennedy, which specified the high court would make further comment Wednesday. But the issue of broadcasting the trial “was resolved for the moment.”

Walker went on to “clarify” a couple of points: First of all, the content would be posted on the Northern District web site, not Google/YouTube. Google/YouTube is just the conduit for posting, just like on the White House web site. “That service would be used here in exactly the same manner.” It seemed like he might have been sending a signal to the Supreme Court about opening up government to its citizens.

Walker then said that he received “a substantial number of comments by 5 p.m. Friday — 138,574,” with the overwhelming majority in favor of the rule change; 32 comments were opposed. People laughed. He said the uproar, however, was “very helpful,” noting that it is “highly unfortunate” that the courts have not dealt with the issue of public access in the past. “Finally, after some 20 years, we’ll get some sensible movement forward,” Walker said.

I noted the disparity in numbers between those announced by Jacobs and Walker — but it might only matter if the open government advocates need to rally to yell at the U.S. Supreme Court if they ban cameras altogether.

Theodore Boutrous Jr., a partner in Gibson Dunn, the law firm representing the plaintiffs, asked if the transmission fed within the courtroom could be recorded and preserved so that if the high court ruled that it was allowable to broadcast or post the opening remarks of lead plaintiff’s counsel, Olson, and lead defense counsel, Charles Cooper, as well as the first couple of days of the trial, that recording would be available. After some legal hemming and hawing, Walker said the hearing would be recorded.

I was suddenly struck by how sad and demoralized the Prop 8 side looked. Olson, David Boise and their team of lawyers, as well as San Francisco City Attorney Dennis Herrera and Deputy City Attorney Therese Stewart, who argued the marriage case with Shannon Minter before the California Supreme Court, sat on the right side facing the judge with two long rows of thick binders behind them. There were also rows filled with other counsels; plaintiffs Kris Perry and Sandy Stier and two of their children, and Paul Katami and Jeff Zarrillo; AFER board members Chad Griffin; Hollywood producer Bruce Cohen and his husband Gabe Catone; LGBT activist Cleve Jones; screenwriter Dustin Lance Black; actor and director Rob Reiner; and other AFER supporters. Behind them sat “members of the public” who had lined up to get an open seat. There was also a public “overflow room” two floors up.

On the left side facing the judge sat the legal defense team, with Cooper as lead attorney for ProtectMarriage.com and two attorneys for the Alliance Defense Fund. Behind them were not rows of thick folders but a row of attorneys for California Attorney General Jerry Brown and Gov. Arnold Schwarzenegger, and other attorneys for the defense. They had a table with two women on computers and one row of possible supporters. They appeared as though they were making motions to look busy rather than actually doing anything. At the break, Stewart told me that two or three of their witnesses had dropped out that morning. That might explain the pall that hung over that table. And throughout the day, Cooper and the other lawyer for the Alliance Defense Fund kept promising that their expert, David Blankenhorn, would explain everything to the judge, who kept asking for evidence about how each side would prove their contentions.

Blankenhorn, you might remember, is the “liberal Democrat” president of the Institute for American Values, who shared a New York Times op-ed on gay marriage with the openly gay Jonathan Rauch, a guest scholar at the Brookings Institute. In a Sept. 19, 2008, Los Angeles Times op-ed, he said:

“Marriage is society’s most pro-child institution, recognized through history and a myriad of cultures.”

That was Cooper’s mantra: marriage equals protection of children.

There were surprising moments from him and his Republican colleague, Olson. After going on about how gays and lesbians have all this political power — referring to the legislature, the unions, the newspapers, Hollywood — Cooper acknowledged that public attitudes have changed from the days of Proposition 22 to Proposition 8, but no one can predict what will happen in the future, so we shouldn’t rush ahead. It was another twist on the effective yes on Prop 8 “consequences” argument that since marriage is so new, we don’t know what might happen as marriage is “de-institutionalized.”

Cooper also made the “activists judges” argument, noting that the Constitution’s 14th Amendment doesn’t take the definition of marriage out of the hands of the people. Besides, he said, Californians have been “very generous with gays.” And even President Barack Obama has said marriage should be between a man and a woman.

But then, as if to painfully underscore how scattered, repetitious and at times inadvertently amusing Cooper’s opening statement was, Walker reminded him that just moments earlier in his opening statement, Olson noted that Obama’s parents couldn’t get married in Virginia because of bans on interracial unions.

Cooper replied that “race has never been a restriction” enshrined in marriage. Some of us were dumbfounded.

He went on to explain that race is not a restriction to the definition of marriage — that a man and a woman get married to procreate. And echoing Blankenhorn, Cooper said marriage is a pro-child institution, which is far more important than love, emotional support and companionship.

To finalize his point, Cooper asserted that the landmark civil rights case that ended race-based discrimination in marriage based on the 14th Amendment, Loving v. Virginia, was only about race and not marriage. Therefore, the 14th Amendment’s Equal Protection Clause does not apply to same-sex marriage.

As the trial ended Monday, the witness on the stand, Harvard University professor and history scholar Nancy Cott, whose opening statement was “what a capacious institution [marriage] is,” really zinged Cooper.

In his opening remarks, Cooper said the limitation of marriage to the unions of one man and one woman is something that is universal throughout history and different cultures. Cott, in her very professorial way, said she was “amused” when she heard Cooper say that because “the Bible is a situation in which characters practice polygamy.” She said his statement was “inaccurate.”

In an interesting juxtaposition to Cooper’s analysis of race and marriage, Cott also talked about the Scott v. Sandford decision and how for slaves, the ability to get married was the mark of a free man.

Boutrous said he had another hour of questions, and then she’d undergo cross-examination, which was expected to get nasty.

But the highlight of the trial Monday was the powerful and moving testimony of the four plaintiffs under the gentle questioning of Boies, each describing their willing-to-die-for love of their partner, the “harm” done to them individually and as a couple by the discrimination caused by their relationship’s different status, and how domestic partnerships was humiliating and just not good enough. At times, they each choked up and paused, causing some people in the gallery to choke up, too. But perhaps most moving was how the two teenage sons of Kris and Sandy cried openly as Kris testified about her love for Sandy and for them.

Olson’s opening remarks were powerful and so on point, it was just breathtaking to hear these words spoken by the former solicitor general for President George W. Bush. Olson was repeatedly interrupted and questioned by Judge Walker — so much so one that observer wondered if Walker had already written his decision and was trying to steer both plaintiff and defense counsels toward answering questions he needed to address. But if nothing else, we certainly learned that Walker would be a very engaged judge, which, with his deep clear voice and mischievous sense of humor, should make the trial very interesting.

AFER has posted Olson’s opening comments for all to read. Before you read them in their entirety, though, consider the closing portion of his remarks:

At the end of the day, whatever the motives of its proponents, Proposition 8 enacted an utterly irrational regime to govern entitlement to the fundamental right to marry, consisting now of at least four separate and distinct classes of citizens: (1) heterosexuals, including convicted criminals, substance abusers and sex offenders, who are permitted to marry; (2) 18,000 same-sex couples married between June and November of 2008, who are allowed to remain married but may not remarry if they divorce or are widowed; (3) thousands of same-sex couples who were married in certain other states prior to November of 2008, whose marriages are now valid and recognized in California; and, finally (4) all other same-sex couples in California who, like the plaintiffs, are prohibited from marrying by Proposition 8.

There is no rational justification for this unique pattern of discrimination. Proposition 8, and the irrational pattern of California’s regulation of marriage which it promulgates, advances no legitimate state interest. All it does is label gay and lesbian persons as different, inferior, unequal, and disfavored. And it brands their relationships as not the same, and less-approved than those enjoyed by opposite sex couples. It stigmatizes gays and lesbians, classifies them as outcasts, and causes needless pain, isolation and humiliation.