January 11, 2010
By Julia Rosen
Several people have requested that Rick’s liveblogging be placed into one post so that it is easy to share with friends and family members. Per that request, I have copied in chronological order the five liveblogging threads from today.
I’m happy to announce that Rick is staying an extra night in San Francisco to liveblog tomorrow’s proceedings. So, please check back throughout the day as he documents the second day of the trial.
[UPDATE] 9:30 The Prop. 8 side still wants to preserve objection that any evidence be put up that shows intent of those who fought to pass prop. 8 including the ads. The anti-marriage folks are continuing their theme: we want to control the media. We don’t want the public to have the info to make up their own minds.
[UPDATE] 9:46 The judge is probing extensively whether or not the problem would be solved if the state of California “got out of the marriage business.” He and Olson had a colloquy about whether domestic partnership for all would solve the problem. Olson had to have a note handed to him from his team to say that only opposite-sex couples over 62 can have domestic partnership. Judge Walker is very interested in seeing what change has occurred that should force the federal judiciary to enter the issue. He wants to know what evidence will show that makes the matter worthy of judgment. The judge is very, very smart. This is really, really fascinating. Olson is doing a great job in answering him. “What’s the evidence going to show that Prop. 8” intended to discriminate against gays and lesbians. Olson: no question that Prop. 8 intended to discriminate. We’ll put on evidence from the plaintiffs and others that show how they felt about the campaign, the sentiments that may have been used to motivate the voters.
[UPDATE] 9:52 What’s amazing here is that Ted Olson is talking about the grievous harm to gays and lesbians, that we’ll show there has been a long history of discrimination at the hands of the government and the people. What’s just amazing is that Ted Olson—read that again—Ted Olson is arguing forcefully that there is “no good reason” for Prop. 8. And there is no damage to opposite sex couples to marry. The history of the institution of marriage has evolved. Marriage laws the disadvantaged women or races or ethnicity that have been eliminated have strengthened the institution of marriage. This is Ted Olson!
[UPDATE] 10:10 Olson is just brilliant. He answered the judge’s point that marriage only existed for mere months, not a long established right, by saying that the court finally realized that the right exists within the California constitution, just as the US Supreme Court realizes that rights exist. Marbury v. Madison says, “the law is the law.”
And the judge just got to the big elephant: if Prop. 8 is unconstitutional, can DOMA be constitutional? Olson says we’ll have to work through that. This case may lead the judiciary to that conclusion, but it’s not the subject of this case. I personally (Olson) believe it’s unconstitutional!
Ted Olson on civil unions they “Inflict a badge of inequality.”
He goes on to say that Prop. 8 perpetuates discrimination for no good reason. It makes gays and lesbians inferior, lesser so they’ll be discriminated against and suffer irreparable harm.
[UPDATE] 10:14 More from Olson: When voters were encouraged to pass Prop. 8, religious institutions would be closed, gay activists would overwhelm the state and parents were told to “protect our children.” We’ll show that here.
Heterosexuals including substance abusers, convicted criminals are allowed to marry, divorce and remarry.
18000+ married same-sex couples can divorce and not remarry.
Thousands of same-sex couples married in other states are recognized here effective January 1st.
But fourth category is the plaintiffs whom we represent who have none of these rights.
Judge Walker: why shouldn’t courts stay out of this as Mr. Cooper says?
Olson: That’s why we have courts, to protect those who are discriminated against, when their children can’t go to school because of their skin color. We would not need a constitution if we left everything to the political process. We’d just let the majority prevail and that’s a good thing about democracy, but it’s not so good if you are different, new. It causes gays and lesbians unrelenting pain. We have the courts to take our worthy, upstanding citizens who are being hurt to be protected by the courts. That’s why we are here today.”
Now, turning to Terry Stewart for San Francisco.
[UPDATE] 10:16 Judge Walker wants to know the evidence that shows that CA would get $3 billion in economic benefit if we have same sex marriage. Terry Stewart said we’ll show that. And we’ll show that Prop. 8 proponents used scare tactics to show that there is a “culturally triumphant gay movement” that will harm children.
Judge Walker pushes here back to economics. Where is the evidence that denial of marriage economically injustices San Francisco.
Stewart: Hate crimes are caused by this sort of thing and that costs the state.
Judge Walker: What’s link to Prop 8?
Stewart: Prop. 8 reinforced messages that gay relationships are inferior. That message leads to hate crimes. Harms individuals and state economically because it has to prosecute those hate crimes.
This is amazing. We have tried for years to get these messages into the court of public opinion. Now, thanks to Chad Griffin and Bruce Cohen and the funders of the foundation, we have Ted Olson, Terry Stewart and a very, very smart chief federal judge asking the questions we want everyone to think about.
[UPDATE] 10:24 Terry Stewart is listing the prejudices that exist and how they negatively impact government because of the harm done to people.
Judge Walker asks the Attorney General representative: If Pro.8 violates constitutional, why did the AG allow Prop. 8 on ballot?
Judge Walker asks the Attorney General representative: If Pro.8 violates constitutional, why did the AG allow Prop. 8 on ballot?
AG: There is no duty or responsibility for the AG to review the constitutionality or not of an initiative.
Judge: May I have a brief on this?
As lawyer, I was involved in pre-election challenge to initiatives, said Walker. Judge Walker seems incredulous that AG does not review constitutionality of props.
Judge: Did AG take a position on Prop. 8 before election?
AG: I don’t know.
- Note: Brown was opposed to 8! Everyone knows that. Why does his own staff not know that?
Judge Walker just asked for better information from the AG’s rep.
[UPDATE] 10:28 Only five states have same sex marriage and three of those had it imposed on them by judges, same way it came to California. So Cooper is going to argue strongly that the people can decide, that judges have to stay out. This is a a classic case of the role of the judiciary. Fascinating that Olson is on our side.
Cooper says, “CA has been generous” in providing rights to LG. Says that gays and lesbians have secured so many legislative victories by building a huge group of folks and groups including the newspapers, unions, corporations, hollywood, religious leaders. Gays and lesbians have enormous political power. Prop. 8 and Prop. 22 provides only a special regard for institution of marriage.
So he’s going to show that the gays are really powerful.
He quotes Obama that marriage is between and man and a woman.
Marriage has ancient and powerful religious connotations as Obama says.
[UPDATE] 10:35 Judge Walker said if obama’s parents had lived in VA, their marriage would not have been legal.
Cooper said, “race has never been a restriction” enshrined in marriage.
People in the overflow room laughed.
Judge asks how evidence will show that racial restrictions were different than LG.
Cooper: Never an issue. Marriage was always between a man and woman. IT’s all about procreation.
Judge: Is that the only reason for marriage?
Cooper: “Pro-child” institution. People laughed again.
Judge: Are the other values of marriage, such as companionship, secondary?
Cooper: Evidence will show that marriage will be de-institutionalized.
Judge: What is evidence going to show to support that?
Cooper: Our expert, Mr. Blackenhorn will show that the preponderance of historical and social leaders agree that this the naturally procreation sexual act that is protected, that it’s pro-child.
(So this guy is going down the rabbit hole. He’s attacking the very essence of the modern family, that family that has one parent, that adopts. He’s making this about whether the gays will hurt children. I think he has to lose. I really do. It’s not internally consistent.)
[UPDATE 10:44] Cooper’s only argument seems to be that the evidence will show that if gay marriage is legal, it will lead to higher divorce rates and lower rates of marriage. Blackenhorn will somehow demonstrate that.
Our point is that the plaintiffs cannot prove that the damage will not occur. Same sex marriage is too novel to prove that it won’t harm.
Judge: Any evidence that his happened in other countries?
Cooper: there is evidence; we believe it will show.
They are now saying that we have to prove that gay marriage will NOT harm opposite sex marriage. By that logic, no change is allowed, progress is rejected, until we can prove that the change represents “no threat.”
But it’s impossible to see how this can work except for the fact that three states had judges rule that same sex marriage is legal. In other words, if we didn’t have same sex marriage, we could not prove that same sex marriage will hurt us. Huh? They oppose it everywhere but they now say we should keep it as an experiment? So they should support same sex marriage in the five states! Let’s hold them to that!
[UPDATE] 10:53 Cooper’s case seems to rely nearly 100% on the testimony of Mr. Blankenhorn. I hope for their sake that this guy is the Albert Einstein of right wing social science. If not, they have nothing. Every time the judge asks how they are going to prove their case, Cooper says, “Mr. Blankenhorn will show you.” I can’t wait for that!
The other leg of the case is that “you will hear nothing but predictions” about what same sex marriage will bring because there is not enough history of same sex marriages. So here’s the deal: if we make a change in the definition of marriage without enough history then we will make a mistake.
At end, this really is about progress vs. conservatism. Cooper says essentially if you can’t prove there won’t be harm, you can’t make the change. That means do nothing.
And now Cooper says that only the people of California and the neighboring states and my home state can decide what the constitution demands. Not you, not the ninth circuit, not the supreme court can decide.
Judge Walker: But many times do judges take issues out of the hands of the body politic; why is this different?
Cooper: Because marriage is not covered by the Equal Protection clause. In Loving, we saw that the fourteenth amendment was specifically to deal with race, not this.
[UPDATE] 11:11 We are on a quick break. My laptop is juicing up and I’ll likely be relying on sending updates in from my BlackBerry.
[UPDATE] 11:26 The plantiff:
The love of my life. I love him probably more than I love myself. I would do anything for him. I would put his needs aheadof my own. I would be with him in sickness and in health, for richer or poorer, just like the vows. I would do anything to marry him.
Been in relationship for nine years. The word marriage has a special meaning. It’s why we’re here today. If it wasn’t so important, we would not be here today. I want to feel the same joy and happiness that my parents, my friends, coworkers felt when they got married. It’s the logical next step for us.
You believe if you were married it would change your relationship?
Absolutely. One’s capacity to love and be committed can grow. That would happen with us.
[UPDATE] 11:34 If you were married happily, would it change the way other people who don’t know about you treat you?
Sure. When someone is married, when they notice it because of my ring or something else, they see that the couple is committed and that they hope to stay committed together for the rest of their lives.
We have not had children because Paul and I believe that it’s an important step for us to be married before we have children. IT would make it easier for us and our children to explain our relationship. It would afford different protections for our child. If we enter into that institution, we would want all of the protections so nothing could eradicate that nuclear family.
We have not registered for domestic partnership because it would relegate me to second class citizenship or maybe even third class citizenship the way things are in California now. It’s part of the pie. We hold marriage in such high regard that if we get marriage, the civil union of the past would not be sufficient recognition of our relationship.
[UPDATE] 11:47 Zarello (one of the plaintiffs): Prop. 8 has emboldened other states to take action to discriminate against us. We cannot turn on TV or read a blog without having these daily reminders of what I cannot have.
Have you been placed in awkward or embarrassing situations because you are not married?
When Paul and I travel, it’s always awkward at the front desk. Numerous occasions when individual the front desk will look at us with a perplexed look and say you ordered a king size bed? Is that what you really want?
When we opened a bank account and said, “My partner and I want to open a bank account,” which leads to the bank thinking we wanta business account. IT would be much easier if we could say, “MY husband and I want to open a bank account.”
Have you ever been asked to describe your marital status?
It’s very awkward. I proudly wear my ring on my left hand to signify my commitment. People ask, “how long have you been married? What does your wife do?” Leaves me having to deliver the news that I am a gay man, that my husband or domestically partnered gay man works in the fitness industry. That leads to a continued awkward discsussion.
If state says you cannot marry a man, would you marry someone of the opposite sex?
No! I have no attraction to or desire to marry someone of the opposite sex.
If you were forced to marry someone of the opposite sex, would that lead to a stable relationship?
[UPDATE] 12:00It’s really hard to listen to Jeff (one of the plaintiffs). Every time he talks about his life, about his past, about being in the closet because it was not right to be open, because I’m told to thing of myself of a bad person, to be put in a corner and told you’re different.
This hurts deep in my gut. I remember that feeling growing up.
And yesterday at LAX, on the way up here, I was going through security. I removed my sunglasses and said, “I want you to be able to see my beautiful eyes.” The guard said, “Don’t ever say that to another man.”
Now Jeff is talking about how difficult it is to respond to folks who say, “you don’t have that right to get married, nor should you.”
There was an image that used children in the campaign for prop. 8. Protect the children was a big part of the campaign. When you protect children, you protect them from a pedophile or a criminal. You don’t protect yourself from a good or amicable person. Yet when they say they are protecting them from me, it’s so damning. I love kids. If you put my nieces and nephews on the stand right now, I’d be the cool uncle.
Don’t point your finger at me and put me in the category of those against whom you have to protect your children.
[UPDATE] 12:05 They are now playing a Prop. 8 ad. It’s the one about the little girl being allowed to marry a princess. “It’s already happened.”
How does that line, “Protect our Children. Restore Marriage,” make you feel?
What are you protecting them from? Are you protecting them by denying them certain rights? If so, that’s what they are doing. The threats are insulting. They are demonizing us. Why?
(There’s a big back and forth because the Prop. 8 side does not want any of these ads to be aired from the campaign. The Prop. 8 side thinks that not enough notice was given. The judge said that the witness would remain available for another 48 hours in case the good guys cannot prove enough notice was given.)
We’re taking a little break for the Prop. 8 side to chat amongst themselves about the question of when the list of exhibits was made available to them. But what the heck? Do you think they had not seen the ad? They used it all the time in California and then again in Maine. Maybe they should check out their own side’s website.
After a big back and forth, the Ron Prentice ad that says that if California loses on Prop. 8, family will be destroyed, we’ll go off the rails. It has a nice looking black guy talking about the bible and about not being afraid. Stand up for Jesus Christ. He stood up for you in a public forum; now you stand up for him. (I had not seen this. It’s a longish video that shows the forces of God fighting the judges. It has the scary music.)
Boies: How did you feel, especially seeing that last line?
Objection by the other side because it’s not been produced by Protect Marriage dot com. So now they are upset that our side is showing what the other side really wanted to do. They only want to show these ads when no one can talk about them publicly.
[UPDATE] 12:15 When you saw that ad, stand up for righteousness, vote Yes on 8, how did it make you feel?
It made me feel bad. That image of an oncoming freight train that will kill you that makes me feel that I am part of a community that will kill people? I want to marry Jeff. I’m not going to start a movement that will harm people or children. How can they categorize me as the devil? Those lines between right and wrong are talking about things that are bad in nature, that harm people in a society. I just want to get married. I love someone. I want to get married. It demeans you. People are putting effort into demeaning you.
(Again, this stuff literally makes me feel ill.)
[UPDATE] 12:21 So now there is a back and forth about whether to use NOM’s “Gathering Storm.” The other side thinks it’s not relevant because it was produced after the campaign. Boies says it’s worse than what happened in the campaign, because there’s no campaign on going.
The judge asked if it is tied to those in the room. Boies said that it is because NOM funded 8 and is sufficiently related to the campaign broadly defined. Even if it were done by someone with no connection to the campaign, the court needs to see this to determine whether this is a class of people subject to continuing discrimination.
1. Not produced by Protect Marriage.
2. After campaign.
3. Not about Prop. 8.
Any harm that could have flowed from this particular video could not have come from Prop. 8.
Judge said no. Not connected to the parties that sued. There’s another way to show that homosexuals are discriminated against.
[UPDATE] 12:31 Okay, so the judge said they can’t show Gathering Storm. It was that pseudo scary ad that we all did responses to. OOOOH, the gays are gonna get you!
Boies now wants to admit the ballot guide for Prop. 8. (For a minute I though the other side was going to object to this even though it’s a public document!).
Now we’re looking at the sentence that says voting Yes on Prop. 8 restores the definition of marriage that’s was approved by over 61% of the voters. Voting YES overturns the decision of four activist judges. Voting YES protects our children.
Plaintiff: Jeff and I are informed voters. We do the reading. We discuss it all. This punch line again of protecting children is absolutely clear. From what are you protecting children? From harm. But what is the harm? That language is indicative of some kind of perpetration against a child. Separates me from the norm. Makes me part of a community that is perpetrating a threat. That’s why we are here (in court).
(Again, at age 51, I can still feel these barbs that have made my life so odd.)
We hear a lot about the fact that you get the same rights; what’s the big deal? The big deal is that it’s a separate category, maybe a fourth class citizen now that we recognize marriages from other states. We still have discrimination. Puts a Twinkie at the end of a treadmill. Here’s a bite. Then another bite. You want that whole Twinkie (I don’t love this analogy).
None of our friends has ever said, “hey this is my domestic partner.” It’s not even the rights as much as it is the full access to the laws of the state. If you are separate, it fortifies prejudice. It’s rooted in something fundamentally wrong. All I want is to be married. That affects only my husband and family and concentric circles. If it it bolsters us publicly, good. So long as we are outside due to laws, it’s us and them. My state is supposed to protect me; it’s not supposed to discriminate against me.
Everyone is now taking lunch and will resume thereafter, at 1:30PM.
[UPDATE] 12:47 It’s hard to think while this goes on. I’ve never before been on trial, but today every gay or lesgbian person in the country is on trial. The testimony brings up all of that “stuff” that I keep pretending I’ve left behind. I grew up near Knoxville knowing I was gay, but never wanting to be. I dated girls, just like Jeff did. I hid from myself. I became an Orthodox Jew in LA and almost got married because I did not want to be gay. When Boies asked Jeff if he’d be in a more loving, stable relationship if he married a woman, it was not a throw-away. That’s what the NOM folks want you to believe. They want you to believe that if Jeff or me or so many others of us who were born homosexual would just marry a woman, the world would be a better place.
But nothing is further from the truth. How many marriages have broken up because one partner or other was not in love and finally had to leave to be true to his or her nature? How many times in history has a person committed suicide, drunk himself to death or even abused a spouse because he or she was in a marriage that was not real? Society is weakened by these false constructs.
One last point: the defendants had better spend time in the five states in which same sex marriage is now legal. Mr. Cooper, the defandant’s lawyer, said we need more time to see if same-sex marriage will do harm. That means he must support it in those states. His position is regressive and without sense, but if he really believes what he said, get he to New Hampshire and Iowa to preserve same sex marriage!
Paul Katami (one of the plaintiffs) is being cross examined now. The other side is asking if a first and second grader should be taught about sex. He wants to know whether children that young can make judgments about sex education that age.
Paul is saying that he does not know the curriculum of the school system and he is not willing to say what he thinks should or should not be taught. He said that if his child were taught something in school to which he as a parent objected, it would be incumbent upon him to working with his child.
So here we go. They are going to scream that we are going to turn children into homosexuals.
[UPDATE] 2:04Lawyer: Did you feel that ads about kids requiring protection were misleading?
Now we’re looking at the ballot guide again. “We should not accept a court decision that may result in public teaching our kids that gay marriage is okay. That is an issue for parents to discuss with their children according to their own values and beliefs. It shouldn’t be forced on us against our will.”
PK says this is missing the point. What angers me is the way it was presented. It was a diversion away from the fact that I have an inalienable right to marry the man I love.
Counsel says but you object to the ads even though they are saying that they are protecting kids from being taught about gay marriage. He’s making the point that the ads did not say that gay couples are bad.
The answer from PK is that it insinuates that gay people are bad and need to be protected. (PK Is doing a good job with a sharp lawyer.) PK says the minute they turn their beliefs into an action that sanctions my rights, that’s a problem.
“The fact is that the ad that we played that has been admitted to evidence specifically says that kids were taught about gay marriage in Massachusetts.”
PK is being asked to say that if there is gay marriage, parents have no redress with their kids. PK says they should talk to their own children. They can say what they think in their home.
Lawyer: Official ballot language says that parents should be able to discuss that with their children?
PK: For me, the language means that parents have responsibility and right to deal with their children as they see fit. But there are other influences, such as if there is a gay married couple in a movie.
Lawyer: You thought that “protect our children” is misleading. Is there nothing kids need to be protected against? (Judge says to rephrase because it’s a little broad.) Fact is you don’t think kids need to protected from same-sex relationships.
PK: True. Kids do not need to be protected from the idea of same sex relationships.
(Pause now while the lawyer gets the transcript of the deposition. He’s trying to prove that parents have the right to determine what kids learn and that if there is same sex marriage kids will learn about that and that’s bad. But that’s a canard. People disagree with what kids learn in society. PK’s right; parents have to raise kids, not constrict society.)
[UPDATE] 2:09 Prop. 8 ad that says that children will be taught about gay marriage was played. It’s the one that ends with Gavin saying, “like it or not.”
Boies redircted, asking if there was anything in Prop. 8 about whether kids would be taught same-sex marriage or sex education in school. PK said no.
Now Olson has Kristen Perry one of the plaintiffs from Northern California up on the stand.
[UPDATE] 2:24 The dulcet-toned Ted Olson is now questioning the highly poised Kristin Perry. She has worked for 25 years for government protecting the interests of children under five. Now they are talking about her personal life.
Ted is asking if she fell in love with Sandy and Sandy with her; both were answered in the affirmative.
Kristin said, “I am a lesbian.” I grew up in Bakersfield. I did date a few boys so that I’d have a date to go to the prom too, or to a party too, but as I got older, I realized that I did not feel the same way my friends did about boys.
Olson: Do you feel you were born with those feelings? Will it change?
Kristin: No. I’m 45 years old. I don’t think so (those feelings will change.) There was laughter. I’m a plantiff because I want to marry Sandy. I really never let myself want marriage until now. Growing up as a lesbian you never let yourself think about marriage because you can’t have it. I think it means that you are honored and respected in your relationship. Everyone can join in supporting your relationship if you are married. I can only observe that as an outsider; I have no firsthand knowledge of it.
Olson asked if it matters that the state sanctions a relationship. Kristin said yes. I want it to happen because I do everything I can to do the best I can for the state, but the state does not let me be happy because of the barrier. We attempted to get married …
In 2003 I proposed to Sandy without knowing that all this about gay marriage would happen in California. I wanted to propose because of how much I love her. We live in a hilly part of Berkeley. I took her for a walk. I sat down on a rock with her, took a ring out and asked if she’d marry me. She said yes, but she said, “how will we do that?” So we had to invent a way to marry. We started figuring out the day, the place, who we’d like to have marry us. As we were in the midst of that, we learned that SF was going to permit same sex marriages. That was February 2004 for us.
Sandy and I were both reading about this in the newspaper. Would we go to SF for the marriage and then go on with our other plans? That’s what we did. We brought all of the boys and my mom and got married in the city hall.
(Olson asks these questions as a gentle father or brother. He makes even me feel comfortable and confident and I’m not there.)
I had an otherworldly feeling as I got married because I thought it would never happen. We went ahead with our other plans as well so that more people could come. We had a party as an afternoon in Berkeley with a small ceremony and then 100 guests joined us on August first 2004.
[UPDATE] 2:34 Perry: A few months later there was the California Court ruled that our marriage was invalid. When you are gay you feel you don’t deserve things, so I was not surprised that the Court ruled. The city of SF sent a form letter with our names at the top. We are sorry to inform you that your marriage is no longer valid. We’d like to return your marriage fee to you or give it to a charity.
Olson: What feelings did that evoke?
Perry: “I’m not good enough.”
O: Sometime, I think May 2008, the Supreme Court ruled that you could marry the person of your choice. How did you feel?
P: “I was elated. After we heard about it, we heard that our friends were talking about getting married. We decided that we could not bring ourselves to do it again right then. We had not recovered from the SF experience. It did not feel like a permanent solution given what was going on outside of the CA Supreme Court. I was aware that (what became Prop. 8) was starting. I remember people reacting against the Supreme Court. “
O: What was it like for you to be a citizen and watch that campaign to overturn the Court?
P: “I’m a California resident. I could see evidence of the camapign. I’d see bumper stickers. I saw ads, one in particular I remember, signs on people’s lawns.”
The ad I remember “struck me as being a sort of education-focused ad” that indicated that you had to protect your children against learning about gay marriage. The ad was creating a sense of fear and worry with me so that I should vote for prop. 8. They reduced relationshis to this “bad thing” so that if you don’t want kids to learn about gay marriage, you have to vote for Prop. 8. I felt it did not relate properly to me and my friends. It messaged to me that I am perhaps a person who does not protect her kids.
Olson: Did you feel that others might need to protect their kids from you?
Perry: Yes. I felt I was being used and mocked and disparaged for being the way I am.
O: Do you feel other effects of discrimination due to your sexual orientation every day?
K: Every day. As an adolescent, it was a struggle. I was well aware of the comments and jokes that circulated about lesbians and gay people. Once I told people I was a lesbian, I drew questions. I want people to like me, so I go to great length to being likeable so that when people find out I am gay they do not dislike me. For example, if I’m on a plane and there is a seat saved for Sandy, I say it’s for my partner and they say, will you move that? Every day, I have to think about whether or not I want to come out. I make a deicision every day about whether or not to come out every day at work or home or school or soccer.
O: Did coming out take a long time for you?
By the time I was 18 or 19 I could talk to myself about it. You often hear lesbian and gay people say, “once I’ve figured it out, I realize that I’ve been gay forever.”
O: Did you have to explain that to your children? Was that difficult?
Yes, I did, but my children always knew me as their mom so they don’t know the difference.
Now they are talking about her and Sandy being domestic partners since August 2004.
[UPDATE] 2:46 K: We are registered domestic partners due to the advice of an attorney.
O: Is it a property or estate planning transaction?
K: Yes, but I believe it has unique features. It allows us to access each other’s health and other benefits. But the domestic partnership agreement is a legal agreement. It’s not the same thing as a celebration. We don’t remember the day it happened. We don’t invite people over on that anniversary.
O: Court will have to deal with why domestic partnership is different to you than marriage?
K: I don’t have access to the word to describe our relationship. Marriage appears to be really important to people. I’d like to use the word, too. You chose that person over everyone else. You feel that it should stick. You want the public support and inclusion that comes with marriage. If we got married, it would be an enormous relief to our straight friends who feel sorry for us. I can’t stand it. They have a word. They belong to this institution. Sandy and I went to a school football game. I realized they were all married and we’re not.
O: Sounds like your heterosexual friends would not feel threatened by you marrying. They’d feel more comfortable.
K: Yes. They’d feel better because they think we are outside of their institutions and that’s strange.
O: Have you discussed with Sandy the impact of victory in this lawsuit?
K: Yes. Sandy has been married before which I envy. There would be a settling in and deepening of our commitment if we could get through this instead of feeling like it is everybody else’s decision. We went to Alameda County recorder’s office in May having reached the point where we wanted to know if there was a permanent solution to this problem, how Prop. 8 was being enacted. Clerk’s eyes got really big. “I am sorry. There are reasons why I think I can’t do what I want you to do, but I am not comfortable with it. I’ll have to ask my boss.” Her boss came back and read the statute. He was upset. He said he was very sorry he could not issue the license and hoped that he’d be able to and that we’d come back then.
Sandy and I really like our life where we live in our house with our kids and see our friends. We don’t want any change; we just want our life to get better and better. It makes me really happy if we get this so that other people could. But mostly we just want to be happy in our house.
O: Do you think if court gave right to marry it would have an impact on the other discrimination you feel?
(Objection was overruled.)
K: If marriage were legal, I would not be treated the way I was. There is something so humiliating about not being able to marry. I try not to take every bit of discriminatory attacks against me personally. If kids growing up in Bakersfield could grow up without knowing what this discrimination feels like, their lives would be on a higher arc.
No questions from the other side.
Sandy is now on. She’s also very poised. She learned in her mid-thirties that she is “gay.” She got married to a man before. She had no feeling that she was a lesbian when she was married to a man. I had a difficult relationship for most of our marriage, but I started it out with the best of intentions. She grew up in Iowa in a small town of 1,500. It was a good but sheltered upbringing. We did not travel or go to places very different from where we grew up. I had no idea of a gay lifestyle or sexuality until I was a late teenager.
I moved to CA in 1985 and got married to a man in 1987. We dated for a year before we got married on 14 November 1987. Marriage ended in 1999. (Olson is very interested in drawing out the trajectory of her sexuality, which is fascinating, rarely discussed in public.)
She met Kristin first as a coworker. We were friends. The feelings I had for her were different than I had for others. I grew to realize that I was falling in love with her, in early 1999. My marriage was falling apart on many fronts. I was extremely unhappy. My ex-husband relied on alcohol and could not support the family properly. My sexual orientation or the discovery thereof did not have anything to do with the failure of the marriage.
I had never experienced falling in love before. Olson draws out whether that’s true of her husband. I never thought people “fell in love.” When you grow up in the Midwest with a farming family, there is a pragmatism that is inherent, part of the fabric of life, that is pervasive. I remember my mom saying that marriage is more than romantic love, it’s an enduring long term commitment that is hard work. In my family, that seemed really true. I wanted to have the kind of relationship that my parents did and do.
Kris and I have a very romantic relationship. Not only did we fall in love, we wanted to merge our families. I was 36. We wanted that life of commitment and stability.
O: How convinced are you that you are gay? You lived with a husband. Some people would say it’s this, then it’s that and now it’s this.
S: I’ve only been in love once and that’s with Perry. I’m 47. I know. I’m a plaintiff this case because I would like to get married and to marry the person that I choose and that’s Kris Perry and California law prevents that.
Sandy describes her version of their marriage, the toasts, the love from community: When I got that letter saying that our marriage was no longer valid humiliated, angry and that people who brought us gifts and celebrated with us felt pity for us which is the last thing that I ever want to evoke around marriage.
S: It felt great that the court thought we had a constitutional right to get married. It was cloaked in this distension that felt very familiar. The activist groups that opposed marriage made me realize that this was not permanent. I felt strongly that at my age I don’t want to humiliated any more. We got married twice and it was taken way. I want it to be permanent, no chance it get taken away from us. We did have friends that got married. We were proud and worried for them because we did not want them to have the same problems we had.
[UPDATE] 3:20 Sandy is talking about the difference between domestic partnership and marriage. Marriage would mean we are not girlfriends or partners, we are a married couple. I was married for twelve years. Being married felt different than what we have.
Judge asks again if the state were to get out of the business of using the term marriage, but created another name for it for all people, domestic union or whatever, would not that put you on the same plane as all others?
Sandy says I believe so. Yes. If we had the same access, I’d feel equal.
Judge: Even though the term marriage is not used?
Sandy: Yes, because if it’s not a legal status sanctioned by the state or government, id’ not have to worry about access to it because no one else would either.
O: What are examples of feeling awkward about not having marriage?
S: Going to pick up my youngest son at school. I get mother’s day cards, so they think of me as their mother. Words like “aunt” or step mother aren’t there if I’m not married. Few people know what the term “domestic partnership” means. It does not describe our relationship. We’re not business partners or social partners or glorified roommates; we want to be married. Forms at doctor’s offices and the like don’t work and then I have to explain what a domestic partnership is.
O: Would being married provide you with any sense of stability that being domestic partners would not?
S: Yes. I’d feel more respected by other people. I could hold my head up high in our family. I want our children to feel good about us, not that our family is not good enough.
S: During Prop. 8 campaign, I saw bumper stickers, signs and I went to a rally that was against Prop. 8.
S: I heard many things—everything—from the yes side that disturbed me. The campaign was very focused on “protection:” protect marriage and children with the subtle implication that you have to be protected from gay people. The constant references to children felt harmful. I felt that great harm was being done by this campaign, that we are the great evil to be stopped, but as a mom of four kids, there’s nothing stronger in parenting than the desire to protect your children. I was sickened by the yes campaign.
O: As a parent of four children, you have strong sense of what it means to be a good parent. Would your boys be better off with a man in the house?
S: The most important and best thing for kids is to feel loved.
O: How is it to be a plaintiff?
S: It’s not a burden. I feel like a little tiny person in this country. I’m not trying to change anything. I just want the same thing I’m due in the federal constitution.
S: If I could marry, I’d think I was building a good world for our kids. I want our kids to have a better world than we have. I want the possibility of having grandchildren who are okay no matter whom they fall in love with. As someone from one of the most conservative pockets in the country, I see how important this is. I hope for something for Kris and I, but we’re big, strong women. We’d benefit greatly, but others over time would benefit in a more profound, life-changing way.
(No cross examination. They probably don’t want to be seen by the public as attacking women. It’s easier for them to go after gay guys than women.)
[UPDATE] 3:28 Now we’re hearing from Professor Nancy Cott. (The judge has a good sense of humor. He asked her to keep her voice up. She tried again and said, “Does this work?” He said, “Well, we’ll see.” Boutrous is examining. Olson and Boutrous have a lot of hair. Maybe that’s a prerequisite at Gibson Dunn? Or maybe I’m just jealous.)
Okay, now we get to the historians and social and cultural psychologists, etc. IN 2002, she was a Sterling Professor at Yale, the highest honor Yale gives professor. Then she moved to Harvard as Trumball Professor of American History. She’s published eight books. She has a long history of research in the history of marriage. She wrote and published PUBLIC VOWS, a history of marriage and the nation. First started investigating the history of marriage in the US in 1990. Looked at history of marriage as a public institution, a structure created by government for social benefit.
Many of my courses at Yale touched upon marriage. While I was in the process of researching the book, I was honored as the Devain Professor (SP) to teach a course outside of any one department, I was asked to teach about my conclusions on the history of marriage in the US.
(I’m giggling. I love these kinds of people who are way smart and devote an entire life to learning everything there is to know about a subject. It’s just amazing.)
I like sort of double meanings in my book titles. PUBLIC VOWS refers to the taking of vows publicly and the fact that the public, in the form of the state, makes certain vows to protect the couples. I was examining more the public intention of the institution of marriage, published in 2000, after about a decade of research.
[UPDATE] 3:43 Professor Cott: Marriage is both a public and private institution. Most people who consider marrying, think of the private and private property relations between them. But the state has a public interest in marriage. It’s a means by which the state regulates people. There are other paradoxes in the nature of marriage. Marriage is only possible for individuals who can exercise the liberty value of our citizens, yet the private realm is a place in which decisions can be made freely.
(I had never thought about any of this before. I always thought of marriage as private, but the professor is right. Marriage is quite public even as it enforces the rights to liberty and privacy in that relationship.)
(Both sides agree that she’s an expert on marriage in America, which makes me rest easy. If she’s not, who is?)
Boutrous wants to understand the meaning of marriage in America. Our form of marriage is relatively recent, but has antecedents in Anglo Saxon law. (She said it’s inaccurate to say marriage around the globe is uniform. The other side says she’s not an expert in world wide marriage just in America. Now Boutrous is trying to establish that she had to know about marriage around the globe. She wanted to give a longer answer, but the judge said she’d get asked more.
The other side is using her deposition in which she says she is not an expert of the subject of marriage around the world so she can’t say that marriage around the world is not universal.
The judge thinks that she’s allowed to talk about marriage in the US and how her knowledge of marriage elsewhere affects that, but she’s not an expert on marriage around the world.
(the professor is wearing a green sweater top. She has light brown hair, neatly cut and stylishly carried. She’s exactly the look that you’d expect if you were watching DaVinci Code and wanted to imagine a Harvard/Yale, self-confident and approachable professor. She evokes lots of laughter because she tries to answer questions at length when she’s supposed to say just “yes” or no.” So Boutrous then asks her to follow up. It’s good.”
[UPDATE] 3:58 Boutrous is asking about the Prop. 8 ads that say that biblical marriage is the goal of the US.
The other side objected, saying that she is not competent to opine on the ad because she has not seen the ad. But then the judge said that she could opine because she saw the ad this morning.
Professor Cott said about biblical marriage,” I was very amused that they used that. The bible is full of references to polygamy for Jews.”
The limitation of marriage to a man and a woman is something that has been universal. It has been across history, across customs, across society. (Cooper’s opening statement is flashed on the screen.)
Prof says this is not accurate including from ancient Jews, Muslims now. I think that Christianity has been the source of monogamy vs. polygamy. I suspect the person in the ad referred to the New Testament when he said biblical marriage. She said the success of the view of monogamous marriage is a tribute to evangelical Christianity, particularly in this country since the 19th century.
Now they are talking about the social meaning of marriage.
Marriage is unique because it successfully combines private and public. It is successful as an institution as a couple’s valuation of living together, commitment to each other and engage in an economic partnership to their household. Upon that core, very many cultural add ons have been admitted as well.
The ability to marry, to say I do, is a civil right. It demonstrates liberty. This can be seen in American history when slaves could not legally marry. As unfreed persons, they could not consent. They lacked that very basic liberty of person to say I do which meant they were taking on the state’s obligates and vice versa. A slave could not take on that set of obligations because they were not free.
When slaves were emancipated, they flocked to get married. IT was not trivial to them by any means. They saw the ability to replace the informal unions with legalized vows that the state would protect. One quotation, the title of an article, “The marriage covenant is the foundation of all our rights,” said a former slave who became a northern soldier. The point here is that this slave built his life on that civil right.
She refers to Dred Scott who tried to claim he was a citizen. He was denied that claim. Justice Tawny spent three paragraphs saying that marriage laws in the state in which Dred Scott was prevented him from marrying a white woman was a stigma that made him less than a full citizen. It was a piece of evidence that shows that he could not be a full citizen.
(THIS IS BIG STUFF, at least to me!)
Informal relationships of black slaves were totally treated with abandon by white society. They were broken up all the time. The rush to marry by so many slaves after emancipation was a common sense approach to obtaining civil rights. White employers would often demand that black families and children work in certain ways. The former slaves assumed that once married, they’d have a claim of certain basic rights.
People remain unaware that in marrying, one is exercising the right of personal freedom. They don’t tend to equate the civil rights aspects to it. It’s only those who cannot marry at all who are aware of the extent to which marriage is an expression of basic civil rights.
[UPDATE] 4:08 The restrictions on marriage, as they have been lifted, have made marriage more appealing. The removal of restrctions on marriage have tended to strengthen the institution. The religious connations that different groups have attached to marriage have been a part of its high cultural valuation. In entertainment, movies—at least since the rise of the novel in the 19th century, marriage has been the happy ending. The cultural polish that present the rice, the white dress, the happy coupe parading down the aisle are the expression of happiness by the couple.
How does the cultural value of marriage compare with civil unions?
I appreciate that many states have extended many or all of the rights to people who can’t marry, but there is no comparison in a historical view because there is nothing like marriage except marriage.
At the founding of the country, were there comparisons made between the institution of marriage and democracy.?
Yes. This was based on consent, on voluntary agreement to be governed. Great Britain called its people subjects, not citizens. When the US broke away, they called people citizens who voluntarily consent to a stable relationship that may govern you, but was good. They compared this consent to marriage, an institution that requires consent.
It’s just after 4:00PM. Boutrous said he has another hour or so to go with this witness. So the judge adjourned for the day, saying, “We’re off to a very good start. Can we start at 8:30AM tomorrow instead of 9:00AM?