NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 1

January 11, 2010

cross-posted from Pam’s House Blend

From the first moment to the closing bell, Judge Walker moved the proceedings forward at a rapid clip. It was a great day for our side, spiced with some intriguing hints from Judge Walker about how he may be viewing some of the key legal issues in the case. Ted Olson and San Francisco Deputy City Attorney Therese Stewart gave eloquent opening statements. Both plaintiff couples presented emotional and moving testimony during their examinations and cross-examinations. And by the end of the day, the plaintiff’s first expert witness (the distinguished American history scholar, Professor Nancy Cott) had made significant headway through her testimony, showing that that marriage has never been universally defined as a union of one man and one woman, and that religion has never had any bearing on the legality of a marriage.

Even as attorneys, clients, and spectators were filling up the courtroom early this morning, the U.S. Supreme Court issued a disappointing but temporary order blocking any video or audio transmission of the trial at least until Wednesday. On Wednesday, the full court will issue a more considered (and permanent) opinion.  Judge Vaughn Walker took the first few minutes of today’s trial to note the Supreme Court’s ruling and express his hope that this case would call attention to the larger issue of the public’s right to access judicial proceedings-and the need to update the meaning of that right in light of new technologies.

According to Judge Walker, the court received more than 138,000 comments on the proposed broadcasting, and all but 32 were in favor of allowing the public to view delayed broadcasts of the trial.  At the request of the plaintiffs’ attorneys (and over the objections of attorneys for the Proponents of Prop 8), the judge agreed to record today’s session so that it can be broadcast if the Supreme Court rules favorably on Wednesday.

Judge Walker took an active role from the very beginning of opening statements, grilling Ted Olson and defense attorney Charles Cooper, who represents the official sponsors of Prop 8, on many details of their arguments for and against Prop 8.  Although it’s highly unusual for a judge to interrupt opening statements during a jury trial, in this case there is no jury.  Judge Walker will decide both the factual questions and the legal issues in the case, so he is free to ask questions whenever he likes.  The judge’s questions to both the lawyers and the witnesses showed that he will not be content to just sit back and listen during this trial.  He clearly has spent a lot of time studying the issues, and we can expect that he will continue to ask lots of tough questions of both sides as the trial progresses.

Several of the judge’s questions today focused on whether the Constitution would allow California to decide that it wants to get out of the marriage business altogether – whether the state could decide to stop issuing marriage licenses and have only domestic partnership for all couples.   It’s risky to read too much into a judge’s questions, especially so early in the trial.  But the judge’s questions may indicate that he is thinking about what will happen if he declares Prop 8 unconstitutional.  Will he have to order the state to issue marriage licenses to all couples, or could he leave it up to the state to decide whether it wants to let same-sex couples marry or just stop issuing marriage licenses to anyone?

The most moving testimony today was presented by the two plaintiff couples. Each of the four plaintiffs testified about their experiences growing up gay or lesbian, how they met and fell in love, how they were affected by the Prop 8 campaign, and why they want to marry.  Both Jeffrey Zarrillo and Paul Katami testified about how painful and insulting it was to be cast as a threat to children by the Yes on 8 campaign.  Paul (the only plaintiff to be cross-examined) held his ground in the face of aggressive questioning by an attorney for the proponents of Prop 8, Brian Raum. Raum repeatedly pushed Paul to “admit” that the campaign’s false and inflammatory claims about children were somehow based on legitimate parental concerns.  But Paul handled the ordeal with grace, consistently refusing to be drawn in by Raum’s simplistic and misleading premises.

Plaintiff Kristin Perry, who has worked in the field of child development and child protection for local and state governments in California for 25 years, testified about raising four children with her life partner Sandra Stier.  Despite her obvious reluctance to expose such an intensely painful and private aspect of her life, Kristin also spoke about the heartbreak of having married in San Francisco in 2004, only to have the California Supreme Court invalidate the marriage.  She also explained that she hesitated to marry again after the California Supreme Court’s 2008 decision because she feared that marriage would be invalidated as well.  Kristin testified about growing up in Bakersfield, constantly being made to feel different and inferior because she was a lesbian. If Prop 8 could be undone, Kristin testified, “kids like me growing up in Bakersfield could never know what that felt like, their entire lives would be on a higher arc, it would improve the entire quality of their life.”

Last up today was the plaintiffs’ first expert witness, Professor Nancy Cott, who teaches American history at Harvard and previously taught at Yale for 26 years.  She specializes in the history of women, gender, the family and marriage, and is the author of the book “Public Vows,” a history of marriage in the United States.

Defense attorney Charles Cooper had claimed in his opening statement that marriage has been “universally” defined, across time and cultures, as the union of one man and one woman. Asked to comment about Cooper’s statement, Professor Cott responded in no uncertain terms that it was historically inaccurate.  She also noted that while religion has played a role in many Americans’ ideas about marriage, our civil laws, not religion, have always defined marriage in the United States.

Discussing the social meaning of marriage in America, Professor Cott testified that although most people think of marriage as a private choice, it also has a public aspect.  For example, slaves in America were unable to get married partly because they were not considered citizens, and therefore had no legal right to give their consent to enter into a marriage.  After emancipation, former slaves flocked to get married, because they now enjoyed this basic civil right for the first time.  As Professor Cott explained, the right to marry is an essential element of being treated as an equal citizen.

Professor Cott’s testimony will continue tomorrow (January 12, 2010).  No doubt each day’s proceedings will be the subject of intense interest.  Of course, only time will tell whether the Perry case will lead to a ruling that restores the equal citizenship of same-sex couples in California.

California Couples Tell of Gay Marriage Ban’s Toll

January 11, 2010

by Lisa Leff and Paul Elias | Associated Press

Two same-sex couples gave intimate accounts of their private and public lives Monday during the opening day of a highly anticipated federal trial to decide the constitutionality of state bans on gay marriage, at times tearfully testifying about moments of awkwardness, disappointment and shame that they said resulted from their inability to legally wed.

“I’ve been in love with a woman for 10 years, and I don’t have access to a word for it,” said Kristin Perry, 45, the lead plaintiff in a lawsuit seeking to overturn the voter initiative that outlawed gay marriage in California. “You chose them over everybody else, and you want to feel that it is going to stick and that you are going to have the protection and support and inclusion that comes from letting people know you feel that way.”

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Watch Kate Kendell on 2010, the Year of Engagement

January 11, 2010

Read Ted Olson’s Opening Statement in Prop. 8 Trial

January 11, 2010

from the American Foundation for Equal Rights

The federal trial over the unconstitutionality of Proposition 8 began today with an opening statement by attorney Theodore Olson, who with David Boies is leading the legal team assembled by the American Foundation for Equal Rights to litigate the case Perry v. Schwarzenegger. Opening statements will be followed by testimony from Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo, who comprise two couples who wish to be married but who were denied marriage licenses because of Proposition 8.

After the opening statement David Boies gave the direct examination of Jeff Zarrillo and Paul Katami.

(as prepared)

This case is about marriage and equality.  Plaintiffs are being denied both the right to marry, and the right to equality under the law.

The Supreme Court of the United States has repeatedly described the right to marriage as “one of the vital personal rights essential to the orderly pursuit of happiness by free men;” a “basic civil right;” a component of the constitutional rights to liberty, privacy, association, and intimate choice; an expression of emotional support and public commitment; the exercise of spiritual unity; and a fulfillment of one’s self.

In short, in the words of the highest court in the land, marriage is “the most important relation in life,” and “of fundamental importance for all individuals.”

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Visit Pam’s House Blend for Exclusive Legal Analysis of Federal Prop 8 trial by NCLR

January 11, 2010

from Pam’s House Blend

You’ll want to stick right here on the Blend for coverage of the federal Prop 8 trial because we have great resources for you that you won’t find anywhere else.

BLEND EXCLUSIVE: Trial analysis by NCLR’s Shannon Minter

But the big news is that we have just secured a nice exclusive for you — daily analysis of the trial from someone eminently qualified to do so — and is at the trial — Shannon Minter,  Legal Director of the National Center for Lesbian Rights (NCLR).

BLEND EXCLUSIVE: Live Chat trial recap and discussion with NCLR
And we have another exclusive for you — at the end of the week Blenders will have the opportunity to ask questions about the trial’s first week in a CoverItLive chat with Shannon Minter or Kate Kendell, the Executive Director for the National Center for Lesbian Rights (depending on who’s available as we work out scheduling).

Unusual Suspects

January 11, 2010

Today many of us who care about justice and dignity for same-sex couples are feeling a quickening in our pulse. This surge of adrenaline is to be expected given the stakes today as the trial challenging Prop 8 kicks off in the federal district courtroom of Judge Vaughn Walker. At the moment I am writing this, the trial is underway. I am at my desk and not at the courthouse, although several NCLR staff are there, including our Legal Director Shannon Minter. Several folks asked me if I would be at the courthouse, and all were surprised when I said no. I do intend to attend portions of the trial as it moves along over the next three weeks but for today, I felt the need to stick with my routine and what is familiar. But my heart is racing. When we won the right to marry for same-sex couples in California on May 15, 2008, I believed that we had turned the tide forever. I was convinced that the decades of discrimination, stigma, shame, and emotional and physical harm directed at LGBT people was finally in its swan song. Then, on November 4, 2008, the voters in California passed Prop 8, and I was personally and professionally bereft and devastated, then convinced that it was all a sham and that our fight for equality would be much longer than anyone thought.

Today it is January 11, 2010, the passage of time and developments around the world and in this country have given me back my perspective. Yes, winning marriage was a landmark watershed moment, yes, losing on Prop 8 was a demoralizing setback, but in the months since, we have seen marriage victories in four other states, we have also lived the two steps back of Maine, New York, and New Jersey. As the trial opens today, history is being made again, but not in the usual way. The lawsuit against Prop 8 is a federal suit brought under the federal constitution. The federal court is being asked to resolve this unique question (among others): is it a denial of equal protection under the law to single out same-sex couples and eliminate their fundamental right to marry after recognizing that same-sex couples are entitled to full equality under the state constitution? Moreover, as has been widely covered, the leading lawyers representing our community in court are an unlikely pairing. Ted Olson and David Boies are two of the most recognizable lawyers in the country. They were on opposite sides of Bush v. Gore and Olson, in particular, as a lionized leader in the conservative movement, is an unlikely and I submit, game-changing ally. Olson himself discussed why he took the case in this week’s Newsweek, and if you doubt his commitment, reading this piece will put to rest any lingering concerns.

I had my own concerns early on in this litigation and expressed them to Olson and his team. I was persuaded in a first phone call with Olson and other members of his legal team of the depth of his commitment and his sincerity. He is a true believer in our equality. At the conclusion of that first call I jokingly declared Olson an “honorary lesbian.” He chuckled heartily and said “he could not be more delighted” with the designation. Over the past weeks as NCLR has assisted the Olson/Boies team, I have become more and more convinced that the litigation not only has a real chance to succeed in striking down Prop 8, but that, equally important, having such unlikely champions makes possible the most important work: igniting a national dialogue and changing the hearts and minds of our fellow Americans. Even if that is all that happens, the world will never be the same.


The Conscience of a Conservative

January 11, 2010

by Eve Conant | Newsweek

Ted Olson would seem the unlikeliest champion of gay marriage. Now 69 years old, he is one of the more prominent Republicans in Washington, and among the most formidable conservative lawyers in the country. As head of the Office of Legal Counsel under Ronald Reagan, he argued for ending racial preferences in schools and hiring, which he saw—and still sees—as a violation of the Constitution’s guarantee of equal protection under the law. Years later, he advised Republicans in their efforts to impeach President Clinton. In 2000 he took the “Bush” side in Bush v. Gore, out-arguing his adversary (and friend) David Boies before the Supreme Court and ushering George W. Bush into the White House. As solicitor general under Bush, he defended the president’s claims of expanded wartime powers. (Olson’s wife at the time, Barbara, died on American Airlines Flight 77, which was crashed into the Pentagon on September 11, 2001.) Olson has won three quarters of the 56 cases he has argued before the high court. Feather quills commemorating each case, and signed thank-you photos from presidents, cover the walls of his Washington office.

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