Yesterday was the opening day of the federal court trial challenging California's Proposition 8--a challenge that, if successful, would (pending appeals, of course) win back marriage equality in California and perhaps guarantee it for the entire nation.
High stakes at this table.
The first day of a trial is what sets the tone. Counsel on both sides get the opportunity to lay out the case that will guide their arguments the rest of the way. Judges get the chance to establish how active they intend to be in the actual proceedings. And the plaintiffs, at least, get to present their strongest witnesses. And by most accounts, today was a great opening day, as plaintiff counsel Olson and Boies (the pro-equality side) laid out a strong case, the defense (the other side) seemed lost and confused, and Judge Walker showed that he may be favorably inclined to the arguments of the plaintiffs.
But the first question of the day: would anyone get a chance to watch it as initially supposed? After much legal wrangling, that is still up in the air:
The Supreme Court is blocking a broadcast of the trial on California's same-sex marriage ban, at least for the first few days.
The federal trial is scheduled to begin later Monday in San Francisco. It will consider whether the Proposition 8 gay marriage ban approved by California voters in November 2008 is legal.
The high court on Monday said it will not allow video of the trial to be posted on YouTube.com, even with a delay, until the justices have more time to consider the issue. It said that Monday's order will be in place at least until Wednesday.
Note that this should not be initially taken as evidence of any hostility on the part of the SCOTUS to marriage equality, as SCOTUSblog makes clear. We can hope, however, that the SCOTUS will side will side with Judge Walker, who announced the numbers from the public commentary: 138,542 in favor of allowing cameras, with 32 opposed. You could call that a majority.
On the trial itself: Today featured the opening statements by both counsels: Boies and Olson for the plaintiffs, and Cooper for the defendant. The plaintiff's case rests on the idea that gay marriage bans violate the equal protection clause of the 14th amendment, and Olson did his best to prove that from an emotional and legal point of view--not only in his opening statement, but also in his examination of the plaintiff's lead witnesses:
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.
By contrast, the argument of the defense--just like the campaign tactics of the Yes side on Proposition 8 and Question 1--hinges on the idea that traditional marriage is a staple of society and should not be changed--or else, children will suffer. Unfortunately for the defense, it seems that Cooper played his real hand by discussing the institution of marriage as a state method of showing approval for certain types of intercourse:
Cooper: Broad consensus of leading scholars will show that marriage is about socially approved sexual intercourse and the production and protection of children.
!!!!
Cooper: Marriage is naturally designed to channel the procreative instincts into an enduring unions, an institution that is good for the child. Good for the mother, fixes the responsibilities of the father.
In my initial reading of the liveblogs provided today by Rick Jacobs at Courage Campaign's Prop 8 Trial Tracker and by Teddy Partridge and David Dayen at FDL's equally excellent coverage, it seems that Judge Walker is being anything but sympathetic to Cooper's case, took him to task hard and got him caught in a humiliating bundle of contradictions:
Walker: If the Prez’s parents had been in Virginia when he was born, their marriage would have been unlawful. Doesn’t that show a TREMENDOUS change in the institution of marriage? doesn’t that show evolution? Isn’t that correct?
Cooper: Racial restrictions were never a feature of the institution of marriage. (laughter in our courtrtoomm)
Cooper: These restrictions were loathesome, and a detail. "Man and woman" has been universal, across time and all societies.
walker: Is the evidence going to show these racial restrictions are different than the restrictions imposed by Prop 8?
(like a bug pinned to a piece of wood)
Cooper: Naturally procreative instincts....
Walker: Only purpose?
Cooper: Basis of marriage is procreation. It is a pro-child societal institution.
Walker: Many things attend marriage, will your evidence show that those are all secondary to procreation?
Cooper: This is about deinstitutionalizing marriage...
Walker: Yes, you say that. But will your evidence show that?
Over at LGBT POV, another excellent resource for covering the trial, Karen Ocamb agrees with this assessment of the day:
Judge Walker interrupted Ted Olson’s opening statements several times, showing he’s going to be an engaged judge. San Francisco Deputy City Attorney Therese Stewart, who is part of the case, told me she thinks he may even ask questions of the witnesses.
Olson laid out their case very well, I thought – though Walker did ask some hard pertinent questions – more on this tonight.
Charles Cooper for the defense seemed all over the place – arguing what we’ve heard often before – that marriage is historically and culturally been defined as between a man and a woman for the purposes of procreation and a stable society. Judge Walker asked how same sex marriages effected heterosexual marriages – and he says it does because it "de-institutionalizes" the institution. Again, more on this later. I don’t think Cooper did well – and it turns out that three more of their witnesses dropped out this morning, per Stewart.
For more in-depth coverage of yesterday's action, and up-to-the-minute coverage of today's events: