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The final witness for the Prop8 defenders was David Blankenhorn, president of the Institute for American Values.    Compared to the discussion with the academics (even the ill-prepared Dr Miller), who attempted to review scholarly studies and opinions, Blankenhorn made sweeping statements that essentially say, "I believe it, that ends it".   He is not an academic, and has no academic credentials in this area.  His thesis is that the "deinstitutionalization" of marriage, which has occurred as it focuses more on adult desires, is bad for children:  marriage's proper purpose is for licit sex and procreation.  And, since gays can't procreate, same sex marriage is therefore going to "deinstitutionalize" straight marriage.   (Never mind that straight marriage is doing fine, indeed better than elsewhere, in places like Massachusetts that have marriage equality. Why let data interfere with your argument?)

Now, I have debunked the procreation argument numerous times on my blog;  it boils down to (1) there is no requirement for fecundity for straight people to marry (e.g., elderly, infertile, those who don't want kids can all tie the knot), so that can't be the purpose of legal marriage,  and (2) GLBT families have kids, either their own from previous relationships, various assisted methods, or adopted, and without marriage, those kids are disadvantaged.   Let's leave that for a minute.    

Instead, let's focus on the statements made by this witness in response to the aggressive cross-examination by the expert David Boies.  And these statements, remember, are made by a witness for the DEFENSE, who is trying to prove a legitimate state interest in denying marriage to GLBT people.  From the AFER transcript, and the brilliant liveblogging at Prop8TrialTracker and FireDogLake:

Blankenhorn:  The parenting process in the -- this loadstar notion  that animates the marital institution is not the same that is operative in the domestic partnership institution......It is discriminatory and un- -- and morally wrong in my view, morally wrong to refuse to call two things that are the same by the same name.  

Blakenhorn: insofar as we are a nation founded on this principle, we would be more American on the day we permitted same-sex marriage than we were on  the day before.

Q. Are you aware of any studies showing that children raised from birth by a gay or lesbian couple have worse outcomes than children raised from birth by two biological parents?
Blankenhorn. No, sir.

Blankenhorn:  I believe that adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children.

Q: First point you agreed with that ss marriage would improve the happiness of many G&L individuals, couples, and gay community members. Then you agreed that it would extend the benefits of marriage to couples and their children. Then you agreed that a higher proportion of ss couples would enter into committed relationships. Then you agreed that more would enter into long term relationships. Then you agreed that lesbians and (especially) gay men would be less promiscuous. Then you agreed that gay marriage would be a victory for the worthy ideal of tolerance. It would increase the number of those ‘accepted’ and would be a key expansion of the American idea.
Is that right?

Blankenhorn: Yes

Blankenhorn:  CU and DP are comparable to marriage, they might blur the distinction [between marriage and marriage-like entities]

Here's one of the more surreal moments, in which Blankenhorn argues that polygamy does not violate the "rule of two"people in a marriage, as long as the marriages are performed sequentially.

Q: I want to pursue whether polygamous marriages are consistent with your so-called rule of two .... IF a man has five wives –
Blankenhorn: No he has five marriages, each is one man one woman

HIs other rules?  Must be opposite sex (though he admits in some cultures same sex marrages have occurred) and must always involve sex (which left him a little flummoxed considering incarcerated prisoners who are denied conjugal rights).

The concluding cross:

Q: Marriage is always changing?
blankenhorn:  I wrote those words
Q marriage has no single definition?
Blankhorn:  I wrote those words too

Remember, this guy is on the side of the defense.  

From here, the judge takes a week to review the case, the voluminous documents, videos, and transcripts.  Then the attorneys come back for the closing statements.
As Ted Olson, one of our lead attorneys, said,

This is the game that they’re playing. They define marriage as a man and a woman. They call that the institution of marriage. So if you let a man marry a man and a woman marry a woman, it would de-institutionalize marriage. That is the same as saying you are deinstitutionalizing the right to vote when you let women have it. It’s a game. It’s a tautology. They’re saying, ‘this is the definition. You’re going to change the definition by allowing people access that don’t have it now, and that would change it so that people who currently have access won’t want it any more because it’s changed.’ This is all nonsense. They are not proving that. This is a syllogism that falls apart. The major premise, minor premise and conclusion are empty.

And all they have left is bias, ignorance, fear, and occasional hatred.  As I've said before:  show me one straight marriage harmed by my marriage to my wife.  One family harmed by the protections we now also enjoy.  One couple whose commitment to each other evaporated because of my vows to my wife.

So here's a deeper reflection.  I think that while many Prop8 supporters are ignorant and fearful, the leadership is not.  They are playing a longer game for which marriage equality is just one part.   Spin aside, can they honestly look at the testimony from their side, the witnesses tied in knots, their awkward attorneys, and the smoking gun of the religious motivations, and truly believe they are right?  Or (rather more frightening concept), do they not take it seriously because it doesn't matter, because they know, no matter how wrong they are, how unjust and unfair they are, they have it in the bag already?

Originally posted to I T on Thu Jan 28, 2010 at 11:14 AM PST.

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Comment Preferences

    •  It's really all just painful (10+ / 0-)

      I fought hard for a change in Maine after the amazing defeat in CA and was just heart broken to see that measure approved by the voters. I've taken an obvious backseat approach to this case for many of the reasons others have stated on here.  I have severe doubts that the SCOTUS will do anything but kill civil rights for LGBT couples.

      I agree with another comment that the place for change must come through the public.  I cannot stand that my rights are voted on and that someone else has the ability to say if I can or cannot marry; however, I can see a repeal of DOMA being a catalyst for the state DOMA's and ammendments to be challenged as unconstitutional.  I think if we continue to pepper the Supreme Court with cases, eventually one will have to get through.  Just as the case from Texas abolished the long standing legal discrimination of sex between consenting same-sex couples, there will be a time when a small victory will be had.

      Finally, I agree with you I T in wanting someone, anyone, to show me how many people sought a divorce because I married my wife.  I think the bigger disgrace is those of us that felt it necessary to attempt to be "straight" and marry knowing that it wasn't right and wasn't who we were.  That was my contribution to the destruction of marriage.  My current marriage, to another woman, is the best thing I've ever done.  After being together for 8 years, we finally traveled out of state and had a legal ceremony.

      The change within the families was immediately visible.  My daughter commented that we were now a real family, her family finally accepted our relationship (mind you we'd been together for 8 years BEFORE saying I do), and our friends stood beside us and supported our decision and our marriage.  Many whom were vocally opposed to same-sex marriage prior to our annoucement.

      The reality is that love is love.  No matter what the ultra-right wants, love will find a way.

  •  Boies's cross was a thing of beauty (18+ / 0-)

    Sublime to read, I needed a smoke afterwards.

    And now we wait for month. Oy.

    BlackKos Tu/Fri. It could be worse for progressives. We could be in Port-au-Prince.

    by terrypinder on Thu Jan 28, 2010 at 11:22:33 AM PST

    •  It really was (9+ / 0-)

      He was able to get both Miller and Blankhorn to basically say whatever he wanted them to.

      The only downside is that he also so thoroughly destroyed both witnesses' credibility that the statements they made favorable to our side will carry close to zero weight in deliberation - but the upside is that their testimony during direct will also be almost entirely discarded.

      It was telling when, after having first said that Blankenhorn's credentials were questionable enough that it would have been a close call whether to allow his testimony were it a jury trial, Judge Walker warned Blankenhorn that one of the factors used in weighting testimony was the demeanor of the witness, and he better check himself if he wanted his words to be taken into account. The warning was only temporarily heeded - he was battling with Boies again shortly after, and losing to his clear superior.

      In America, 60% of bankruptcies are because of medical bills, and 80% of those people had health insurance

      by sullivanst on Thu Jan 28, 2010 at 11:49:08 AM PST

      [ Parent ]

    •  Hell, I don't even smoke-- (1+ / 0-)
      Recommended by:

      And I wanted a cigarette.

      "Jane, you ignorant slut." --Dan Aykroyd, Saturday Night Live

      by homogenius on Thu Jan 28, 2010 at 02:03:40 PM PST

      [ Parent ]

  •  The Supreme Court (10+ / 0-)

    Has recently proven it no longer cares about the law and has become an entirely political organ, thus on a certain level this case is doomed.

    However, since the legal argument is so clear in this case, it will further help to delegitimize the court and thus a need for a complete Article V reset of the entire constitution.

    The United States Senate has lost its political legitmacy and should be abolished.

    by TKLTKL94 on Thu Jan 28, 2010 at 11:26:22 AM PST

    •  Not just recently. (6+ / 0-)

      SCOTUS's record on civil rights is abysmal, peppered with cases where its adverse rulings stood as landmarks for decades before eventually reversing itself.

      I hope that it will be different in the instant case, but I am prepared for a smack-down and a long road back before they get it right.

      •  Gee, I was hoping the corporatist bent (1+ / 0-)
        Recommended by:

        might be a saving grace. In that, there isn't a corporate interest in perpetuating our disenfranchisment. In fact, many mega corporations are some of the GLBT friendliest places to work, and certainly more progressive than society at large.

        •  I wish the Justices' deference to commercial... (0+ / 0-)

          interests extended to the minions indentured thereto.  I don't see such a wish as sound footing on which to stand.

          Yes, in Citizens United they did throw a bone to labor unions by granting them the same right to throw unlimited amounts of cash at American elections.  However, they did so with the knowledge that the unions' power, and thus that of the common workers they represent, is already eclipsed by that of the corporate giants, and has long been on the wane.

          In the instant case, popular support of LGBT Americans is ascendant, albeit in small increments, and while it does not yet pose a serious threat to the holders of real power in this country, neither would they want it to be allowed to "get out of hand."

          That, of course, is the opposite of "how it should be," and I hate that I have become such a cynic in these matters.

    •  Hmm. Questionable analysis. (4+ / 0-)
      Recommended by:
      DaleA, homogenius, terrypinder, jgilhousen

      First, the court has proven for a while that Kennedy's really the only Justice that matters. The votes of the other eight are largely predictable in advance.

      This is likely to be the pattern in this case, too. But whereas Kennedy had expressed a wholehearted acceptance of the legal fictions that corporations are people and money is speech, more or less predetermining his finding with the right-wing bloc in Citizens United, his history in LGBT cases is that he finds narrow ways to find in favor of LGBT rights.

      This case is interesting, because it's difficult to see a narrow way to find in favor of LGBTs. Striking down articles of a state constitution is not a small matter. Kennedy's going to have to break with past behavior - either find against LGBTs, or find for them in a way that has broad consequences.

      There are going to be three important facets of Judge Walker's decision: the level of scrutiny he applies, the reason for applying that level, and obviously whether or not he strikes down Prop 8. I think the way Walker's conducted the trial - starting with the decision to have a trial format - leads me to be optimistic that he will apply strict (or at least intermediate) scrutiny, partly because there is a fundamental right to marry the person of your choosing (as found in Loving and also by the California Supreme Court when it first legalized gay marriage), but also after finding orientation to be a suspect classification. Applying elevated scrutiny makes finding against Prop 8 very likely: defense has basically tried to say that Prop 8's "all about the children", so providing the best environment for rearing children would be the "important government interest" for an intermediate test, but excluding gays from marrying is not substantially related to furthering that interest, on the basis of trial evidence.

      If Walker rules as I hope and believe he will, the liberal bloc on the high court will only grant cert if they are convinced Kennedy will not strike down the ruling. Striking down Prop 8 will be a big win they will not want to jeopardize, establishing elevated scrutiny as nationwide precedent could wait for another day. Conversely, the conservative bloc would only grant cert if they were convinced that Kennedy would strike down the finding of suspect classification: establishing that as national precedent would be a huge blow to bigotry, and Scalia's dissents in Romer and Lawrence, both joined by Thomas, mark them down as monstrously bigoted against LGBTs.

      In other words, the partisan divide on the court has become such a defining feature that the normal logic of which cases they will accept could be turned on its head: instead of taking the case because it's controversial and significant, they might decline it for that exact reason. Unless one side is sure of Kennedy's vote.

      In America, 60% of bankruptcies are because of medical bills, and 80% of those people had health insurance

      by sullivanst on Thu Jan 28, 2010 at 12:23:09 PM PST

      [ Parent ]

      •  Cert can be done with 4 Justices (0+ / 0-)

        although because Roberts has worked on GLBT friendly cases before, there may only be three Justices willing to upset the apple cart.  Indeed, considering Scalia's past dissents, I think much of the worry about High Court reversal is misplaced.

        •  I'd also point out that by the time (0+ / 0-)

          this case snakes up to SCOTUS, there's no guarantee we'll still have Stevens and Ginsburg's vote.

          I'd like to feel confident that Obama would appoint another Yes vote. But I'm not.

          I could see a scenario where he picks an otherwise liberal judge that had a bad LGBT record precisely to head off GOP filibuster to the appointee based on cries that "The SCOTUS will make marriage gay!" if he were to pick a more LGBT friendly one.

          I'm not saying there's a high probability of that. But based on his history so far, I don't think it's out of the question. He certainly hasn't made many of his decisions with LGBT concerns at the forefront.

  •  Wasted effort. Should have waited for TV approval (2+ / 0-)
    Recommended by:
    DaleA, peacestpete

    The main purpose of the case was to educate the public and to move public opinion via the presentation of the case via TV broadcast.

    It would have been riveting TV. Fox would have been going crazy on it. CSPAN would have carried it live. It would have gotten big media attention and likely moved public opinion in favor of equal rights. Win or lose the court case, it would have moved equal rights forward. Without TV, that opportunity is lost and the effort largely wasted.

    Instead we'll have some narrow legal decision one way or the other that will be be left to a right wing US Supreme Court which will rule against equal rights by either overturning a decision of not taking the case that upholds Prop. 8.

  •  Can I just say... (12+ / 0-)

    Blankenhorn is not an anthropologist, no matter what credentials he may claim.  It makes me sick to think that people may get the impression that this is what anthropology is about.  One of the first rules of practicing anthropology is that you have to examine your own bias.  He clearly has not done that and has no intention of ever doing that.  

    The game is deemed more above the law than the players. -8.25, -6.25

    by smellybeast on Thu Jan 28, 2010 at 11:38:23 AM PST

  •  The defense case was an empty vessel, (12+ / 0-)

    their witnesses giving more support for the plantiffs than for the defense.  It was downright comical at times.

    I still think this case is going to get creamed when it goes to SCOTUS, assuming it gets that far.  Perhaps that's the thin reed the defense was leaning on.

    -5.13,-5.64; EVERYTHING is an approximation! -Hans A. Bethe

    by gizmo59 on Thu Jan 28, 2010 at 11:43:06 AM PST

    •  Defense was arguing to a different audience (8+ / 0-)

      They didn't seem interested in winning the legal case. It looked much more like they were talking to the religious right outside the courtroom.

      Which makes one wonder why they opposed TV cameras.

      In America, 60% of bankruptcies are because of medical bills, and 80% of those people had health insurance

      by sullivanst on Thu Jan 28, 2010 at 12:27:22 PM PST

      [ Parent ]

      •  Yes, they seemed not to care at all (5+ / 0-)

        and since no more testimony may be introduced, the utter FAIL of their witnesses seems to be a problem!

      •  I don't think they were hanging their hat... (4+ / 0-)
        Recommended by:
        DaleA, blueyedace2, gizmo59, Clarknt67

        at all on refuting the plaintiffs' evidence.  It appears to me that their strategy is based on a belief that the matter is disposed of on the basis of the low bar created by an absence of LGBT status as a suspect class, so the decision will fall in their favor even before one gets to considering the evidence.  They don't much care that the Judge does not seem so disposed, and are counting on the Court of Appeals and/or SCOTUS.

        •  At the very least, Walker seems inclined (3+ / 0-)
          Recommended by:
          blueyedace2, jgilhousen, Clarknt67

          to use "rational basis with teeth", wherein just because proponents say such-and-such was their motivation for support, the court doesn't necessarily believe them, as in Romer. Since Romer also dealt with a state constituional amendment approved by popular vote, it's a good precedent.

          His decision to hear testimony on the history of discrimination against LGBTs, however, strongly suggests that he is willing to consider applying strict scrutiny.

          In America, 60% of bankruptcies are because of medical bills, and 80% of those people had health insurance

          by sullivanst on Thu Jan 28, 2010 at 01:23:25 PM PST

          [ Parent ]

          •  That makes sense to me. (4+ / 0-)

            I'm not a lawyer, but it sounded like he was not buying and of the defense's bullshit.

            I simply don't see any substantive evidence for the defense's case. I kept waiting for them to present a case!  It seemed like there was no "there" there.

            I think we'll win this trial and Walker may even invoke suspect class status. I would expect to win on appeal in the Ninth Circuit, so that leaves SCOTUS.

            A lot will depend on how Walker frames his ruling. Clearly the world is changing around us. Is SCOTUS willing to give us another ruling that suits their prejudices (and by that I literally mean "prejudging" in the legal sense) as they did in Bush v. Gore and Dale v. Boy Scouts, or will Kennedy take the more expansive view of equality of Romer and Lawrence?

            Gonna be a bumpy ride. But this was a sight to behold.

            "Jane, you ignorant slut." --Dan Aykroyd, Saturday Night Live

            by homogenius on Thu Jan 28, 2010 at 02:12:55 PM PST

            [ Parent ]

            •  As long as we're making predictions... (0+ / 0-)

              something I usually avoid at all costs... I, too, expect a favorable decision by Walker, but don't know enough about his record to know whether he is ready to be the first up on the federal bench to keep goin' with respect to suspect class status where all others have stopped just short.  I won't be surprised if he does, but have no confidence in guessing one way or the other.  (Given his obvious intelligence, I would be even less surprised if he doesn't some creative way of applying a stricter scrutiny absent formal suspect classification.)

              I'm afraid that's as far as my predictions fall within the realm of optimism.  Appeal to the Ninth Circuit looks to me like a coin toss.  And SCOTUS... whoa', Nellie!

      •  They opposed TV cameras (2+ / 0-)
        Recommended by:
        luckylizard, Clarknt67

        because when they hit up their RR donors for money, they want to control how the trial is perceived. Without cameras, they can put plenty of spin on how unfair the whole process was and how they were persecuted so you've just got to send us all the money you can now (they assume that most of their potential donors won't bother to read the transcripts). With cameras, their marks get to see them choke.

        For a while I've been thinking they're deliberately trying to lose the case but couldn't figure out why. Now I think it's for the same reason the GOP really, really doesn't want Roe overturned: if they won, they wouldn't be able to dangle out promises of future victory in order to raise money. They can't say "look what we did for you, now show us your gratitude"; their "base" will simply forget about them.

        There is nothing so practical as a good theory—Kurt Lewin

        by ebohlman on Thu Jan 28, 2010 at 01:58:39 PM PST

        [ Parent ]

        •  If this had been on TV (2+ / 0-)
          Recommended by:
          blueyedace2, Clarknt67

          even the dimmest of wingers would have seen how totally inept their team was.  I think it might also have pi$$ed them off that there wasn't a lot more about God in the whole ordeal.  That's pretty much all they've got, and I can't see the judge sitting still for long with someone preaching to him from the stand.  (I'll admit that I haven't been able to follow this as closely as I'd like, so there may have been some preaching that I don't know about.)

          You're right about spin.  Without video, they can paint this picture any way they want to.

          -7.62, -7.28 "Hold fast to dreams, for if dreams die, life is a broken winged bird that cannot fly." -Langston Hughes

          by luckylizard on Thu Jan 28, 2010 at 04:20:15 PM PST

          [ Parent ]

          •  No TV was because they knew (2+ / 0-)
            Recommended by:
            blueyedace2, luckylizard

            they'd lose the middle of public opinion. They, even as crazy as they are recognized that running videos of their side likening marriage equality to 9/11 would turn the fence sitters to our camp. Or all of Tam's batshit talk of how we recruit by molesting children.

            America may have a ways to go in understanding us, but most of America knows that stuff is crazy.

            •  Isn't it amazing (1+ / 0-)
              Recommended by:

              that so relatively few bat$h*t crazy people can bellow so loud?  

              I'm betting the vast majority of people don't care one way or another if gays can marry.  Hell, for most folks it's plenty difficult enough to deal with their own relationships, not to mention their own survival in this rotten economy.  There are also a whole lot more people who are aware that they know or are related to someone who is GLBT.  (It wasn't that long ago that very few people would willingly come out.  Lots of people suspected that Uncle Jack or Aunt Sally was a little too ... something, but no one would dare to say it out loud.)  It's a lot harder to think of denying all the happiness and security of marriage to someone you know and love.

              -7.62, -7.28 "Hold fast to dreams, for if dreams die, life is a broken winged bird that cannot fly." -Langston Hughes

              by luckylizard on Thu Jan 28, 2010 at 08:27:27 PM PST

              [ Parent ]

  •  I'm not sure what to do with myself today. (12+ / 0-)

    I've already become accustomed to a lifestyle which revolves around being transfixed on the live blogs, clicking "refresh" every few minutes.

    Of course, I could turn my attention to the backlog of work I have let pile up during that process.  I'm sure I will before the thirty days or so is up.

  •  I've (2+ / 0-)
    Recommended by:
    blueyedace2, Phil N DeBlanc

    If you don't stand for something, you will go for anything. Visit Maat's Feather

    by shanikka on Thu Jan 28, 2010 at 11:57:24 AM PST

  •  SCOTUS Outcome Is Far from Certain Either Way (8+ / 0-)

    In any case, as the actual facts of the case sneak out of these cloaked-in-media-blackout proceedings, people will have ammunition to fight the lies of the Reich Wing Religious Psychotics. And as those conversations take place (and take root in people's minds), the injustice and outrageousness of the position of the Prop H8 folk will be completely exposed.

    Let's face it; their argument is: "Marriage is between a man and a woman only because someone said it is. QED. Oh, and fags are icky.


    Not that legally powerful, is it?

    If Prop H8 is thrown out (and who knows what could happen in the intervening years?), the psycho religious zealots will try to float a constitutional amendment which probably (by that time) will be laughed out of the Senate.

    I think the Supremes may realize that upholding Prop H8, along with the recent Citizens United decision, will forever taint them in American history as wrong-headed idealogues and evil people. Like the Dred Scott justices. My only worry has to do with the number of not just Catholics, but actual Opus Dei members (probably the scariest Catholic sect around), on the Court.

    But for some reason, right now I'm optimistic.

    And for the record: Marriage DOES make a difference. And everyone MUST have access to it if they want to protect the person they love within a family unit.

    Face it, right-wingers, you screwed it up. And we have to fix it despite your whining. So SHUT UP. REPUDIATE GAY APARTHEID. NOTHING LESS THAN FULL EQUALITY.

    by CajunBoyLgb on Thu Jan 28, 2010 at 12:01:59 PM PST

    •  Agree. (2+ / 0-)
      Recommended by:
      blueyedace2, Clarknt67

      Opus Dei is bad news....

      -7.62, -7.28 "Hold fast to dreams, for if dreams die, life is a broken winged bird that cannot fly." -Langston Hughes

      by luckylizard on Thu Jan 28, 2010 at 04:25:34 PM PST

      [ Parent ]

    •  If you look at Kennedy in Romer (0+ / 0-)

      and Roberts' work on that case for the LGBT side, it is hard to find five votes to overturn what the trial court seems likely to do and the 9th Region is likely to uphold.  Indeed, with only 3 possible justices on the other side, there are serious doubts they will even get Cert on this case.  Most judges will likely let the trial court stand and use it as precidential nationwide.  Remember, even hard right Reagan appointees let Terri Schaivo die in peace when the right wingnuts in Congress wanted to overturn the actions by the Florida courts.

      The right-wingnuts want to set up a Constitutional Convention called by the states.  You can see that because of how they have built a coalition state by state to defend their notion of marriage.  Heck, I bet they don't even want this to go to SCOTUS.  They would rather not get Cert so that they can say that they have not had their day in court.

      A state by state drive for a convention lets them mobilize, radicalize and fleece their base one more time.  This is why controling state houses is so crucial - and why they have done so much at the grass roots level.  This is why they are so excited about Virginia, New Jersey and Massachusetts.  Our new voters stayed home.  The Obama fans on college campuses were nowhere to be seen and of no value to us until we get them out for local races.  They are counting on the apathy of youth and so far their calculations have been correct.

  •  my apologies (1+ / 0-)
    Recommended by:

    I didn't mean to reply to the tip jar. :(

  •  Someone copied a quote from Prop8 Trial tracker (9+ / 0-)

    where the author pointed out that Olsen & Bois' job was to push the boulder up the hill. While Pro-Prop 8 side merely had to push it down the hill.

    It does give a good framing for our expectations, relative to the tremendously persuasive case O&B presented versus Pro-Prop 8's anemic, scattered, ill-prepared, illogical defense.

    I'll admit to having been cynical or suspicious of Olsen in the beginning. But having read his Newsweek piece, and his interviews, I've come to believe he's a true believer. I believe he sincerely feels the pain of our disenfranchisement and that he can help, is what's driving him to do this.

    I thank DoG that we have these two in our corner. It's been amazing to watch two superstars in action for us.

    The wait until judgment, mid-March (?) will be interminable. (Maybe it will come down on my birthday! 3/28).

  •  That's the DEFENSE???? (9+ / 0-)


    Morally wrong I knew about; preposterous arguments I knew about; head in the sand right wing fundamentalist nonsense I knew about.

    But they're ridiculous beyond what I knew about!

  •  BTW, I was reading... (9+ / 0-)

    And I didn't know this, and wanted to double check with our legal eagles. One of the blogs people were saying, except in extraordinary circumstances, the case they present at this level is the same case that must move forward to the appellate level. That it's very unusual for new witnesses or new evidence to be entered.

    Is this true? It sounds awfully good for our side, considering how terrible their case was. The SCOTUS would have to really reach to find against us. (Not that I'm doubting they'd find a fig leaf somewhere.)

    •  Yes, IIRC, the grounds for appeal (4+ / 0-)

      are not "we have other evidence".  It has to be procedural or law-based,not on evidence.  But IANAL and I'm sure one will correct me if I'm wrong!

    •  Yes. (5+ / 0-)
      Recommended by:
      DaleA, blueyedace2, luckylizard, Clarknt67, I T

      Findings of fact are usually considered set in stone at the original trial.

      Appeals usually just look at findings of law.

      The findings of fact in this case will include a history of persecution against LGBTs. They should also include that while it's a little fuzzy at the edges, there's an identifiable core minority that's been subjected to that history of persecution. That ought to lead to finding a suspect classification, which, while subject to appeal, ought to stand up on appeal because the facts are so clear.

      The only wriggle room that defense established was the fuzziness around the edges - the people who say they're straight but have sex most often with same-sex partners, for example. There's similar fuzziness around the definitions of race, though - the people who have a white mother but self-identify as black, how many of your great-grandparents have to be of a given race for you to be, how many of your great-great-grandparents etc.

      In America, 60% of bankruptcies are because of medical bills, and 80% of those people had health insurance

      by sullivanst on Thu Jan 28, 2010 at 12:45:07 PM PST

      [ Parent ]

      •  Well, that's good (5+ / 0-)

        they've made a shamefully bad argument, so they're stuck with it. Many people guess they are just counting on SCOTUS upholding Prop 8, regardless of what case is presented to it.

        Still, it seems they should be offering the Justices some kind of fig leaf of jurisprudence to hang their pre-determined judgment on. I guess we've seen before that Justices (particularly Scalia) will pull an entirely new argument out of his own ass that was never made before the Court, if he has to.

      •  By the way, that's why (4+ / 0-)

        when a criminal conviction is overturned on appeal, it almost always looks like the defendant "got off on a technicality." Most people don't understand just how narrow the grounds for appeal really are. For example, many of the appeals of the notorious daycare "child molestation" cases from the 80s were granted based on objections to the way the witnesses were seated. The actual effect was to force the case back to the trial court, where the rules of evidence had changed to disallow "testimony" from children who had been badgered for weeks by "therapists" into telling them what they wanted to hear.

        Note that the Supreme Court can, if it so desires, reopen issues of fact (Article III, Section 2 says the SCOTUS has appellate jurisdiction "both as to law and fact"). Circuit courts can't.

        There is nothing so practical as a good theory—Kurt Lewin

        by ebohlman on Thu Jan 28, 2010 at 02:22:57 PM PST

        [ Parent ]

  •  Fabulous diary!! (6+ / 0-)

    I guess I should not be surprised at the stupidity of the people against marriage for all but they still continue to surprise me every time they speak.  If they only listened to themselves they would shut up!!!

  •  I ♥ this quote: (7+ / 0-)

    This is the game that they’re playing. They define marriage as a man and a woman. They call that the institution of marriage. So if you let a man marry a man and a woman marry a woman, it would de-institutionalize marriage. That is the same as saying you are deinstitutionalizing the right to vote when you let women have it.

    And if  you let WOMEN have the vote, before you know it will be voting rights for cats and dogs! And someone will want three votes, or four! It will be chaos!

    It's always been ONE MAN, ONE VOTE! No need to mess with tradition!

  •  In case anyone might be interested.... (4+ / 0-)
    Recommended by:
    homogenius, blueyedace2, luckylizard, I T

    I just wrote the following letter to Judge Walker:

    The Hon. Vaughn R. Walker
    United States District Court
    450 Golden Gate Ave.
    San Francisco,   CA   94102


    Dear Judge Walker:

    I write with respect to an administrative matter relating to the above-captioned case which I consider to be of considerable importance to the American public.  I acknowledge that I am not qualified to respond to the court's call for amicus briefs, nor have any legal standing with respect to the issues at the bar.  Like most Americans, I believe I have a stake in the outcome of this historic case, dealing as it does with fundamental rights of all citizens.  I am content, to trust the Court to dispose of this matter with all due care, and am not writing to influence the Court's ultimate decision in the case.

    Rather, with due respect and humility, I wish to bring to the attention of the Court the historical treasure which it is creating in the form of any tapes which may be recorded as a part of the system by which video of the proceedings is being transmitted to auxiliary courtrooms.  In a case of such obvious importance, even if the public is barred from immediate access to such a record in light of the United States Supreme Court's decision regarding televising the proceedings, it would be a tragedy if they were not preserved for future generations, and especially study by historians.

    This is especially true given the extent to which gay and lesbian Americans for so long have been forced to the margins of society often having to live under a shroud of secrecy.  This has made efforts to assemble a comprehensive record of their history difficult, if not impossible, to the detriment of us all.  If you have not done so already, I would urge Your Honor to take steps that any record of the instant proceedings, whether or not a part of the official record, not fall into that abyss, and if possible, make provision for their eventual public release.

    With gratitude for your attention to what I believe to be an urgent and important matter, I remain...

    Respectfully yours,

  •  Thanks for the update (5+ / 0-)

    If we don't win after that, our court system is more f*cked up than I already believe it to be.

    Tipped and recced.

    Mankind is not likely to salvage civilization unless he can evolve a system of good and evil which is independent of heaven and hell. - George Orwell

    by Phil N DeBlanc on Thu Jan 28, 2010 at 01:47:23 PM PST

  •  I think you may be right (1+ / 0-)
    Recommended by:
    I T

    that the baddies have no interest in winning this case.  I have written for a long time that they are counting on public outrage over how this case will play out to call for an Article V Convention to deal with all of their issues (abortion, the income tax, the Federal Reserve, etc.).  This is why they have been laying state by state groundwork with marriage amendments - they want the same states to call for a constitutional convention (since they know the Congress will never do so).  They also know that unless they act quickly, demographics will overtake their ability to generate outrage over "judicial activism."  Heck, they practically had to beg to get this case filed.  One would think that the abomination in Virginia was enough reason for a federal challenge, since it is clearly a violation of contract rights.  Only a Liberty Law School Graduate could ever pretend it is at all constitutional.

    •  So why hasn't there been a challenge in VA? (0+ / 0-)

      For those just joining us, Virginia has a state law that outlaws private contracts that benefit GLBT people:

      More here

      the so-called Marriage Affirmation Act.

      The act -- really an amendment to an earlier law -- was passed in April, over Gov. Mark R. Warner's objections, and it takes effect July 1. It says, "A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges and obligations of marriage is prohibited." It goes on to add that any such union, contract or arrangement entered into in any other state, "and any contractual rights created thereby," are "void and unenforceable in Virginia."

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