Prop 8 Gay Marriage Trial Closing Arguments Recap: This Time It’s Personal

Oh hi! Hello there! Welcome to the next installment of Judgment Daze, the family funtime media extravaganza where we all perch on the edge of our seats waiting for some people in California to make an either extremely validating or completely infuriating decision about the authenticity of our relationships and whether we are, you know, a danger to children and animals.

We experienced the glory of the Twelve Days of Judgment in January (like the Twelve Days of Christmas only real), where both sides presented arguments on whether Proposition 8 does or does not constitute discrimination, among other things. Feel free to catch up on those and then get back to us, there are some great graphics of women in love with horses, etc:


+ Day One: Judgment Daze: Info, testimony, links, videos and analysis for our kickoff Judgement Daze.
+ Day Two: Anita Bryant Strikes Back: We analyze the history of marriage and the history of anti-gay propaganda, and we fantasize about a West Wing Prop 8 Trial Musical Revue.
+ Day Three: Let’s Get Offensive: In which the other side wants to talk about how gay men sleep around, schools teach children how to be gay, and that because we have Will & Grace, we don’t need equal rights.
+ Day Four: Ilan Meyer on Social Stigma & Prejudice FTW: The other side is getting really desperate. But we’ve got our game faces on for testimony on the effects of prejudice & social stigma on gays and of gay marriage on the economy.
+ Day Five: Everybody’s Hiding Except Me & My Monkey: We laughed, we cried, we asked “is this really happening?” incredulously, and the world spun madly on.
+ Day 6: OurChart – You’re [Cross-Examined] On It: The Mayor stands up for the gays (and his daughter Lisa!), and Lee Badgett testified on how much better the world and our pocketbooks would be with marriage.
+ Day 7: Ex-Gay Camp, Will Truman, Obama, The Mormons, What a Whirlwind! We discuss: the Catholic church’s stance on gays, how conversion therapy doesn’t really work, how gays have almost no political representation, and the Mormons!
+ Day 8: We Musn’t Dwell. Not on Dr.Tam Day! I DO NOT THINK THIS COULD GET ANY CRAZIER. Seriously, I thought I knew how crazy the other side was, BUT I DID NOT KNOW HOW CRAZY THE OTHER SIDE WAS.
+ Day 9: Who Needs Marriage When You Have Bisexuality, You Slippery Slopes? They should replace that show “Are You Smarter Than A Fifth Grader” with “Are You Smarter Than A Proposition 8 Attorney, Yes You Are.”
+ Day 10: Kenneth Miller Time is Less Filling, Tries to h8: “Maybe this man is not really a witness at all, but just here to annoy us. ” Because he sure ain’t doing much for the other team…
+ Day 11: Same-Sex Parents Just Don’t Understand: Blankenhorn is the other side’s Big Hope. He claims to be a liberal democrat but opposes same-sex marriage. Unfortunately, it seems the only peers who’ve ever reviewed him are the Americans For Truth About Homosexuality.
+ Day 12: On the Last Day, The Other Side Epically Failed “I feel like there must be some secret clause in legal proceedings that when someone says something this f*cking stupid, they automatically forfeit the case for their team. Like losing the Snitch. The polygamous Snitch.”

Legal Eagle Analysis:

Midway through the trial, Autostraddle brought in Legal Eagle Jessica to answer some of your more complicated questions as our English Literature degrees really only get us so far –

+ Prop 8 Gay Marriage Trial, Explained: Lez Legal Eagle Answers Your Lawfully Ignorant Questions: You’ve got questions, she’s got answers.

+Prop 8 Gay Marriage Trial Explained Pt. 2: Equal Protection & Why They Do Those Things They Do: Jessica explains the issue of equal protection in the Prop 8 trial happening this week. She’ll tell you what the lawyers are trying to prove, what a suspect class is, and why anyone cares about the economic impact of gay marriage in California.

+ Prop 8 Gay Marriage Trial Explained Part 3: How Do We Win This Thing? Autostraddle’s Legal Eagle is back to explain gender discrimination under the Equal Protection Clause, fundamental rights under the Due Process Clause, and HOW WE WIN THIS.


Part One of Prop 8 Trial Closing Arguments: Team Totally Right’s Turn

Today we are all gathered in front of our computers for the closing arguments; Judge Walker previously issued nine whole pages of important questions that he wanted both sides to address; if you don’t have the attention span to read through the closing arguments themselves, you can read both sides’ answers online. As always, thanks to our good friends at Prop 8 Trial Tracker for liveblogging all of this stuff as it actually happens so that we don’t have to keep refreshing Google news like idiots. Also, Queerty makes a very good point today about how the Prop 8 Trial would best be communicated to the people, it involves Julie Goldman & Brandy Howard.

Anyways! Here we go! Are you ready? I don’t think you’re ready. I know I’m not ready.  But here it comes anyways.

1. What Does Marriage Mean?

Team Totally Right is presenting first, the dynamic duo of Ted Olson and David Boies. I have no images of inside the courtroom but I like to imagine they are wearing complementary Spandex suits and capes. Oh shit, we’re actually starting now, kind of; Judge Walker just said “it’s appropriate that we’re here now because June is, after all, the month for weddings.” He wouldn’t say that if he were going to shut us down, would he? Because that would be really fucking mean.

Olson is talking now; he says he wants to talk about marriage itself, “what it means to marry and have that right extinguished.” Yeah okay, let’s do this.

Apparently there are four perspectives on the issue:

1. Those of the Prop h8ers

2. Our feelings (i.e. the plaintiffs)

3. The SCOTUS (Supreme Court of the United States)

4. The “subject of marriage.”

Hm, this feels like in eleventh grade English class when they were all like “there’s also conflict between man and nature, or man and society” and you were like “no, because one of those things isn’t real.” But apparently “the subject of marriage” is a thing, and Olson says he want to look at those four views across the country.

It’s a little difficult to get the gist of this because Rick, our liveblogger, is kind of writing in shorthand, which is totally legit but makes it hard to really get into Olson’s flow.

Basically what we’re talking about now is that the root of the issue is whether or not those who voted for Prop 8 were acting on rational or irrational beliefs. Previous Supreme Court precedents state that “mere negative attitudes are not supportable.” What that means is that if people have no justifiable reason to believe that same-sex marriage would cause harm to anyone, then they’re just haters and no one needs to base a court decision on their feelings.

So really that’s what this whole trial is about – the opposition trying to prove that there’s at least reason to believe that gay people might harm America – which is why we’re all so fucking obsessed with its outcome, even those of us who aren’t trying to get hitched in California.

I don’t know if this image is really related, but I think it’s important to consider:


2. Love & Marriage, Love and Marriage, Doesn’t Necessarily Go Together With a Baby Carriage

Olson’s now pointing out that even though Prop 8 argues that marriage is an important heterosexual institution tied to procreation that it’s never been defined that way legally before; the right to marry has never been conditional like that in any previous case.

Olson also calls the h8ers out on a little bit of backtracking; their main message during the campaign was straight-up homophobia – gay people are dangerous, will give you osteoporosis and bad credit, etc – and when they went to trial, they suddenly became very concerned specifically with the idea of procreation.

Also concerned with procreation? These people:

And didn’t that turn out nice?

So far Olson seems to be going over some pretty basic stuff – right of liberty and privacy, there’s no evidence that same-sex marriage hurts traditional marriage, etc. I’m assuming that he’s either just warming up or lulling the h8ers into a false sense of security, because I am 100% sure this man can kill people with his mind.

Get excited y’all. Here’s a little teaser – he says he’s “going to play some testimony in a bit,” and I bet it will be fucking awesome. For now, he’s just saying that “marriage is the most important relationship in life… older than a bill of rights, a liberty and right that should be equally available to a person in a homosexual relationship as it is to a hetero couple.” You tell ‘em, honey.


3. Sandra Stier Redux

They’re now playing recordings of Sandra Stier, one of the original plaintiffs in this trial. When asked how marriage would change her life, Steer answered that she would feel “more secure, more accepted, more pride, less protective of my kids, [less worry that they would feel] shame and sense of not belonging.” She says that she and her partner will be okay, they’re “big strong women,” but that her kids and her grandkids really need this.

Olson says that he was really “struck” by how Stier really just wanted her kids to feel okay, and how the h8ers told citizens of California that like the WORST POSSIBLE THING, worse than earthquakes and landslides and droughts and really expensive gas and prostate exams, would be anyone thinking that gay people were okay ever, especially if they were children. This is a good point I think! Thanks Olson! He also points out that even the defendants’ witness Blankenhorn said that acceptance would “strengthen marriage,” giving us all an opportunity to wax nostalgic about how fucking insane that man was.

He also argues that even though gay marriage hasn’t gone to the Supreme Court (although it almost definitely will in the next few years) a series of other cases before it set a strong precedent for it. He says that the current plaintiffs are “in the same position as Mildred Jeeter and Richard Loving in 1967, who did not want to change marriage, just wanted to marry a person of a different race whom they loved… that’s all plaintiffs want, right to marry people of the same sex.”

The Supreme Court said “conduct of marriage is a protected [institutional] right;” Prop 8 takes away that right. Well! I guess we can just wrap up here, then!


4. Our Storied History of Discrimination

Actually though we’re just going to talk a little more about past discrimination cases, which apparently Olson enjoys as a little light reading. That’s what I look for in a man, someone who likes to sit by a roaring fire and leaf through San Francisco’s decisions on Chinese Americans.

Oh shit son, here’s a doozy – Judge Walker just asked this case would be different if California had never had marriage at all. I kind of hate it when people ask that, because I mean obvs yes, we wouldn’t have those adorable wedding photos of Portia and Ellen first of all:

But here’s what Olson says: that the facts here w/r/t marriage are stronger because there was a period of time when it was legal, and because history has shown that in general, rights tend to be curtailed upon by voter initiatives, like the one that ended already-legal marriage in CA. And ultimately, it’s all about the fact that California already had marriage – as Olson says, marriage for same-sex couples was already in the Constitution. It can’t be taken away unless there’s “compelling reason” by the state.

And when something like that is put on the table, especially when there’s a suspect class involved (like gender, or race, or sexual orientation) you have to be really fucking careful about that “compelling reason.”

Olson says that to change this fundamentally fair state of things – to rewrite the constitution so it doesn’t give people a baseline level of liberty – is incredibly dangerous. “What could be a stronger signal that it’s okay to discriminate?”

Olson brings up the Loving interracial marriage case again, and does a neat little trick where he points out that the principle of protected groups has been extended to sexual orientation from race before in the Romer case, and that the Loving case makes it legal for couples of any racial makeup to marry, so…. transitive property, right? It’s discrimination to keep same-sex couples from marrying. The end.


5. Do Gays Hurt Marriage?

JK! This never ends, obvi.

The judge now asks if, even if there’s no evidence to prove that gays hurt marriage, voters can’t rely on “everyday common experiences” to inform their decision. And now we can tell that Olson is really getting warmed up; he says that sure, common sense is fine, but is it really common sense if it’s, um, completely wrong?

“That can’t be it because there’s no evidence that any one person won’t marry because “they” can marry. There’s no evidence that through intimate relationships, God forbid, procreation will decrease. There’s no reason here to say that same-sex marriage is not okay because it means gay people are not okay.”


6. Discrimination vs. Unlawful Discrimination

Now Judge Walker asks about the difference between “discrimination” and “unlawful discrimination,” which is a distinction that’s honestly kind of giving me a migraine because really what the fuck is that, but Olson runs with it:

“Voters voted for [Prop 8] because people are uncomfortable with gay people… same as in the Loving case. People honestly felt that it was wrong to mix races. [They] were permitted under the constitution to think that, but they were not permitted to put that into law.”

I think we’re tag-teaming this one a little because now Terry Stewart (an attorney for the city of San Francisco) is also talking, but that’s cool because if I were Olson I would need to sit down too. I imagine him speaking those last lines in an impassioned, booming voice, kind of like Braveheart, with woad on his face and everything.

Anyways, Stewart says that Prop 8 is actually really fucking harmful to California and also to my heart (she doesn’t say that but it’s true) because “harms are visited on society as a whole because society as a whole pays for the cost of the harm.” That’s very Fern Gully of them. Also it’s harmful because it means that Neil Patrick Harris isn’t going to have a glammed-out million-dollar wedding there, which would probably employ a lot of our friends as cater-waiters.

And also Stewart says that according to the Romer case, “laws that cannot be explained or understood by any rational thinking cannot be supported.” Um, YES. Like I almost cannot believe that is a thing he has to say out loud.


7. It’s Money Honey

We confirm that San Francisco and therefore the entire rest of the state will lose a shit-ton of money without same-sex marriage, and also that it is the “City of Love.” Yes. That is a thing they said.

Here’s Exhibit A for that:

Also Stewart just said “my colleague TO,” which is probably just abbreviated in the liveblog but which I’m really hoping is a real thing. Like hey, what’s up, TO. What you doing this weekend. Oh you know ending inequality for all, kissing babies.

Oh and here’s an interesting angle: all the cash money spent by the state for our Medicaid-funded therapy (IT’S A LOT)…

…and money for more law enforcement because “when people feel stigma, people are empowered to commit hate crimes.” Isn’t that a lovely idea? Feeling “empowered” to commit a hate crime?

Stewart does a good job arguing that the law has the capacity to actually change these things in our culture; it sets an example for people as to what our cultural values are, and while states with less anti-gay stigma are more likely to pass gay-friendly laws, passing gay-friendly laws can also make a state less anti-gay. Does that make sense? Just trust me on this one.


8. Something About Marriage Licenses

Now Stewart is sitting down again and we’re quizzing the, uh, Alameda County Registrar about marriage licenses. It turns out that depending on how you do it, you can actually fill out “groom” and “groom” on the marriage license online applications, but it turns out that no matter how clever and charming you are on the Registrar’s computer they still can’t marry you.

The registrar confirms that if two people walk in who look like they’re the same sex, they now have to tell them to leave without a license. To be fair, the registrar doesn’t sound super pumped about this.

Also is this a real thing? Apparently “only opposite-sex couples can become domestic partners if over 62?” Really? Anyways this leads to one good line where the registrar says that “I imagine it would be like a bar, where you’d have to ask for ID,” and on that note we break for lunch.

Lunchtime guys! Go get lunch! I wonder what the h8ers are eating, probably gay babies.

We know what they'll be drinking...

Next: The Other Team Goes to Bat.

Part Two of Prop 8 Trial Closing Arguments: Team Wrong At Bat

1. The Purpose of Marriage is to Make Babies Bla Bla Bla

Okay guys okay! Now that lunchtime is over it is The Other Side’s Turn. In the previous trial the pain of hearing every negative stereotype and outrageous misrepresentation of our community was tempered by the bizarreness and hilarity of the Prop 8 witnesses. Now there are no witnesses so that might not happen, but we can do our best anyways. Now Cooper is talking, and hoo boy he didn’t take long to get started:

“Why has marriage been defined the same for so long? The purpose of marriage is to channel potentially procreative relationships into a union with a man and a woman so that children can be raised by two heterosexual parents.”

It must feel awesome to be Cooper’s wife I mean procreative partner. Puts a lot of pressure on the kids though. You know, to succeed. And not be gay. Luckily though Judge Walker isn’t pulling any punches either!

Judge Walker: Do people get married to benefit the community?
Charles Cooper: Your honor…
Judge Walker: When people get married, they don’t say, “Oh boy, I can benefit society.” (Laughter) They say they are marrying to be with their life partner.

Oh that Judge Walker! Laugh a minute, that one. He asks why the state regulates marriage at all, which is really actually a fucking excellent question, and asks why not leave it to private contract. Cooper says it’s because “without the marital relationship, society would come to an end.”

Jesus Christ, someone roll that guy a joint, he needs to chill the fuck out.

Judge Walker seems to feel the same way; he asks, “If that is the premise for marriage, is that a proper premise?”

I’ve read Cooper’s answer three times now and honestly don’t know what he’s saying (though it’s so fun when people answer questions with questions, I love it!) so I’m just going to let you peruse it for yourself:

Is that premise irrational unless it insists on procreation? Is it enough that the state and society attempt to insure and increase the likelihood that naturally procreative sexual relationships will take place in stable family environments for the sake of raising children so that society itself does not have to step in? So that society does not run the risk of all of the social consequences of unwed mothers and the like?

Basically what’s happening here is that Olson was right, and the procreation thing is just something the h8ers came up with for trial so it would seem less like they hated gay people, and so nothing Cooper is saying is really holding water.

Judge Walker points out that if the state cared that much about babies, there are much more efficient ways to make that happen than by making sure only straight people can marry, and also that parenting has nothing to do with marriage, like a vast number of parent-child relationships did not come out of a procreative married relationship, so maybe this is a little beside the point?

Cooper responds to this with a bunch of crazy shit that sounds like 1984:

“The state still has an interest in that child. The state must take responsibility for the upbringing of that child. Whether it’s extraordinary measures and the state has to take full responsibility or when the child has the bulk of the situation where this arises, the mother is still alive, but the mother and father does not have the same ability as a marital unit.”

Um, hi, what the fuck does that mean. This?

Judge Walker tries to tactfully bring us back by asking “What does the evidence in this trial say?” Um, I’m not sure what this means either. The answer is: “The relationship of the parent and child is that by which the infant is protected.” Yes? I guess? From what? Lead poisoning? Schoolyard bullying? The economically segregated US Public School system?

Maybe the problem is that someone actually did roll this guy a joint before he came up to the podium.

Yeah maybe because now Cooper is kind of BSing which is the worst thing you can do with Judge Walker.

Cooper says vaguely that the evidence is “in the cases;” that lots of Supreme Court cases say that “marriage serves the public interest” and that children are important, and is also like “Oh, Blankenhorn talked about this, you don’t remember?” Yeah, we do, and it didn’t go over so well that time either.

2. We Don’t Hate Gays, We Just Love Children

Judge Walker is Not Amused. Cooper says that about two-thirds of judges have upheld this view, and that for gay people to claim that Prop 8 was motivated by homophobia and not just a sincere love of children is “not just a slur on the 7 million Californians who supported Prop 8, but a slur on 70 of the 80 judges who have ruled to preserve the traditional definition of marriage.”

There is so much talk here of children. Oh Jesus, Cooper, yeah I’m really fucking sorry if I hurt your feelings on that one. I guess I just didn’t realize how fucking concerned you were that I have the opportunity to shove a fetus out of my vagina. Also your Mom called and wants to know: “If 70 out of 80 judges walk off a cliff, are you going to do that too Judge Walker?”

Regardless, the only judge who matters thinks this is all nonsense:

Walker’s got this on lock: “If you had seven million people on your side, why did you have only one witness?” I actually know the answer to this: it’s because most of those people were brainwashed by the Mormon Church and its minions. Seriously, the movie comes out next week.

I think Cooper is getting a little bellig now. Maybe the line was too long at lunch, and he didn’t get a sandwich:

“Go to your chambers and look at any book and you will find unequivocal evidence that procreation is the reason for marriage unless it was written by one of their experts or within the last 30 years. You will not find anywhere in the pages of history any suggestion that the traditional definition of marriage, ubiquitous in history, had anything to do with homosexuality.”

I would watch your tone, son; I’ve seen Law and Order and they can throw you out for contempt of court if you get real uppity like that. Walker doesn’t do this yet, but he does ask “And what should I conclude from that?” Gurl, you woke up sassy today.

Also, apparently Maggie Gallagher is here? Liveblog says “Maggie of NOM is sitting barefoot in the court.” Wow!

Over a series of obnoxiously slow questions, we are reaching a point where Cooper is admitting that the reason you can see mention of homosexual marriage “in the last 30 years” is because, um, this thing called social change? Maybe you could read a book on that. There have been several written over the last 30 years. The last 2,010 years for that matter. Seriously, way more than just the one, promise, go to the library.


3. Interracial Marriage Also About The Children Surprise

Now he’s talking about how the only reason interracial marriage became legal was because the state realized illegitimate children were being born, and “the purpose of marriage is to have legitimate children… the 8th circuit recognized that there is a state interest.”

This is so fucking bizarre, it’s like he lives in some alternate universe that is ruled by an iron-fisted Godking who knows when any infant is born anywhere in the world, and immediately claims it as its own. Since the rest of us do not live in this universe though everything he says sounds fucking crazy.

For example: married couples who don’t have children? Um, also can we just take a moment to remember that science and technology change the world, and we have The Pill now and things are different? I mean, if we just had some sort of class in schools, like sex ed or something, then we could really get somewhere…

Also, Maggie Gallagher update: I think she was like resting her feet up on the back of the pew, and the bailiff made her put them back down. Nice.

Judge Walker asks very reasonably if there’s really any difference to the “state interest” if people have adopted or in vitro kids instead of penis-in-vagina ones, and Cooper goes on a rant worthy of that one woman who wanders through the Public Gardens screaming sometimes: Something about “irresponsible procreation” and fidelity, and operating to society’s benefit, and being “less likely to engage in sexual relationships with third parties.”

I honestly don’t really know what it meant, but I’m having a really hard time seeing how it could possibly apply to the subject at hand. Gay people can’t irresponsibly procreate? Like, of all the over-the-top Skins plotlines, none of them were “Naomi accidentally gets Emily pregnant!”  because that isn’t possible. So marriage exists because straight people accidentally have children, like on Intervention.

Once again Walker tries to be the voice of reason: “Where does it show that the procreative function was a rationale for voters in upholding Prop 8?”

Cooper responds with “The Yes on 8 position specifically references that marriage is a fundamental relationship in society.”

Do you remember a time when words meant things? I don’t.


4. I Rule That Cooper is Just Fucking Crazy

Honestly, maybe it’s me, but nothing that Cooper is saying makes any sense to me here. There’s like three solid paragraphs of just nonstop speech that means nothing. Here is a selection just so you can get a sense of what I’m looking through:

“There has not been a case before the federal judiciary or as far as we can tell the state judiciary that applies to anything other than rational basis with four district court exceptions. We submit that 9th circuit has binding authority. Ten other courts of appeal with 6 decisions after Lawrence have held rational basis for sexual orientation cases. Out of 40 some odd district cases, all have been the same save four that have not survived (I may not have gotten this right). You are being asked to participate in a Tsunami.”

Is this a secret code? Is he communicating with the mother ship? I DON’T KNOW. Also, there’s this:

“If you prove that they are right on any facts by plaintiffs, then you still must rule against them unless you can show that every legislative fact relevant cannot be true.”

Well! Someone woke up very opinionated today.

Judge Walker is trying to figure some of this shit out, and asks Cooper, “the natural procreative ability of hetero couples – that’s your evidence?” Yes. Apparently it is.

Walker asks if Cooper’s line of reasoning asks that they not only rule against the plaintiffs but also invalidate the 18,000 marriages that already exist in California. Cooper says “No, that’s not our position at all,” which is weird because I was pretty sure it was?

Anyways, Cooper talks circles around himself about how this is not true, everyone can be friends, he knows a bunch of gay people, actually he doesn’t say that last part.

Now he switches gears, and says he wants to close out this part by talking about the Lofton case in Florida, which is the one that prohibited gay adoption. He says that in that case, the court ruled that “it was not rendered irrational that children do best when raised by own mother and father,” and that this means that:

“legislature could rationally conclude that natural parents of opposite sex versus children being raised by a same-sex couple that has not been proven reasonably by scientific evidence to be good for children.”

Well, um, I guess that’s that. Cooper wraps this point up by saying that “evidence provided by plaintiffs does not rise above scientifically debatable fact.”

YES, “DEBATABLE’ IS THE WORD I WOULD USE. I can’t figure out whether Cooper believes this or if he’s just freestyling, like when you have a presentation to give in sophomore year biology but didn’t do any reading so just decide to go big or go home on Chlorophyll: Green Pigment or Menace?

In conclusion:


5. Um. EW.

And oh Jesus, Cooper just had to close this one out with something to make me vomit in my mouth:

“They’ve gone to great lengths to talk about the religious beliefs of many who supported Prop. 8. Hardly remarkable that religious people are involved. It’s part of our tradition from abolitionists to civil rights and it’s constitutionally protected.”

YES, THAT IS RIGHT. YOU ARE EXACTLY LIKE ABOLITIONISTS. I bet they’re all looking down on you from heaven right now very proudly. I’m sure James Baldwin is just ready to fucking high-five you for how fucking precisely you have replicated the spirit of the civil rights movement. Angela Davis has a fruit basket on its way to your house right fucking now. Oh my God, maybe he will be hit by a train when he leaves the courtroom.


What If It Never Ends

No just kidding that will not happen, we are not even leaving the courtroom, COOPER IS STILL TALKING. Stand by.

Apparently he is not done because there is some kind of weird legal loophole where the more I hate people, the longer they are allowed to talk. This feels like family dinner at Thanksgiving. Anyways. Cooper is going back to talking about whether sexual orientation is “immutable” — really so far his whole segment has just been a Lowlights Of The Original Prop 8 Trial, and this is no exception. We went through this whole fucking thing about how women are very “elastic,” which means that sometimes we, uh, identify differently throughout our lives, which means obvs that our identities aren’t even REAL and that we COULD marry that construction worker who yells at us on our way to work because we could be straight if we wanted to but we just don’t want to. Probably because we’re bitches, or sluts, or something. So there’s the recap of that. That’s what Cooper is talking about now, where he’s essentially trying to argue that sexual orientation shouldn’t be treated like other suspect classes because it like “can change” and therefore “is not real.” I have this really strong and immature urge to like “give Cooper a wedgie” or “trap him inside a locker” right now. Sorry. Over it.

As Judge Walker points out, though, “Some times of the year everyone is Irish.” Exactly, my friend. Exactly.

Now we’re at the part where Cooper is like “I’m not saying queers have never been discriminated against, but I’m saying that it’s 2010, and everything is fine now.” Clearly this is someone who was never called a whiny litle f*g in high school. Or maybe he was and that’s his problem. HEY-O. He goes on for like fucking ever about how gays aren’t as politically powerless as Team Totally Right witnesses made them out to be, and that means we should not let them get married, somehow. He’s wrong though, because as Judge Walker points out there are a lot of protected classes that aren’t literally powerless, and that doesn’t make them less protected. I’m just going to go there — we have a black President right now? Did you know that? And I don’t think anyone except Glenn Beck has proposed that black and African-American people should no longer be a protected class, so I’m going to go ahead and say this argument is over.


Actually It Was Peer-Reviewed By His Mother

Now we’re getting to my favorite part, the part where we talk about what shitty witnesses the other side has.

Judge Walker: Why should Mr. Blankenhorn’s testimony qualify as expert testimony. Does he meet the standards?
Cooper: I submit that he does. I don’t have anything to add to the submission we made earlier. Under the 9th circuit standard of the qualification of an expert, he is amply qualified. His professional life for 20 years have been devoted to the study of marriage…
J: Were they peer-reviewed?
Cooper: No.
Judge Walker: Am I correct that the only peer-reviewed article of Blankenhorn was not on the subject of marriage?
Cooper: Sir, as I stand here right now. I don’t know…don’t remember.

As I stand here right now, I’m going to buy Judge Walker a drink.

This next part gets a little hazy because we start talking about what marriage means “as an institution,” which is like reading Roland Barthes or some shit, like I don’t know what any of those words mean and I have a very expensive college degree. Mostly Cooper is talking about what will happen when we “change the definition” of marriage and how no one can predict it, which is dumb because no definitions of anything are actually going to change, I hate this man.

He also gets really snarky and says that since the plaintiffs can’t prove that the consequences of legalizing marriage will be positive, and all the defense has to do is prove that they could possibly reasonably maybe be negative, that they should just win the case. I don’t know enough about the law to know whether this is true, but I know it makes Cooper sound like a giant dick. And not the Vixskin kind either. I’m going to leave you with these last words of his, just so you can really savor the douchey flavor in your mouth:
Judge Walker: A disability has been put on marriage. Do you not have to show that there is need, that it’s enough to impose on some citizens a restriction from which others do not suffer? Is it enough to say “I don’t know?”
Cooper: Yes.

WELL THEN. This would really suck if we didn’t get to listen to Olson’s rebuttal but guess what WE DO. Hold on to your panties ladies and gentlemen, this shit is about to get real.

Are you ready for some fresh-to-death Ted Olson smackdown? I know I am. I am ready to rebutt the shit out of those assholes.

Here we go! Judge Walker asks Olson what happens if we win – he’s implying a comparison to Roe v. Wade, where the issue of abortion was technically legally decided but is clearly not a closed debate in the actual real world. Olson is like whatever, bro, that’s what people said about interracial marriage too, and look where we are now.

That’s all well and good and whatever, but then Olson really starts to get into it. To be honest, the h8ers had a pretty sloppily run trial, and Olson isn’t going to let them get away with it. “Mr. Cooper cites from books of people who would not come into court to be subjected to the judicial process.” Really, take ten minutes to go back through their testimony – all of their “experts” were either crazy, stupid, wrong, or all three. Like really, I haven’t been able to get away with stuff in Shakespeare 101 lecture that they tried to pull in court. I didn’t do that well in Shakespeare.

Also, ohmigod, I just can’t get over how in love I am with Ted Olson. Like really. Anyone else is going to have to wear a suit and tie and say things like “objection, your honor” to have a chance with me. “Mr. Cooper says first you have to accept my definition that marriage is between a man and a woman and marriage between man and man or woman and woman would change definition. Of course it did, because you defined it. How does it help to keep gays and lesbians out of the club?”

Also, omg, THIS:

“Now a word on pro-creation. What if the state changes its mind? There are governments that have ruled that too much pro-creation is bad. If CA so decides in 10 years, would the state have the right to cut off marriage? No. None of the cases to which Mr. Cooper referred, including Maynard, referred to divorce, mandatory leave for public school teachers, family occupancy of homes, prisoners, and the last case in Texas which ruled for homosexuals.”

It’s really reassuring to me to know that it’s not just that I personally disagree with these crazy people, but that they are actually objectively wrong on many levels. Like really, they are not very good at their jobs. If the government has a vested interest in procreation, it hasn’t done a very good job making that apparent; and if it’s really so slipshod about these things, why shouldn’t gay families benefit? Since actually, you know, straight people procreate kind of a lot? So much so that millions of kids are in foster care? And then we adopt them into loving homes? Just saying. Also Olson just referenced Dr. King’s letter from Birmingham jail. Oh my God I just peed myself.

Also, just saying, the word “procreation” was not in any of the Prop 8 campaign ads. Just saying.

Ok you guys I’m really tired and have been drinking wine out of a plastic cup? So I’m going to leave you with Olson’s words and not mine, because he is smarter and also was probably not intoxicated in this courtroom.

It’s about a fundamental right to marry, not to marry in June or some other time, but to marry whom you love. Can’t rely on post-hoc. We have to take a group of people who have bee victims of discrimination and we want to foreclose them from a basic right – marriage. Strict scrutiny, rational basis or something in between, you have to have a good reason to take those rights away. “I don’t know” doesn’t cut it when you take a basic right from a group.

Well, we know how we feel. We know that we have huge boners for Olson and Boies. And we know that that Cooper dude is real fucking dumb. But we still don’t know how Judge Walker will decide, because the way that The Law works means that even though we are Totally Fucking Right we could still lose. And also that even if we are ruled as being Totally Fucking Right, we could still lose because this ish is going to the Supreme Court. Aren’t you excited? I’m excited. But you know we’ll be here with you to hold your hand and help wipe the mascara off your face either way, right? Girl, you know we got you.

On that note we are OUT for the night, love you bitches Olson&Boies 4 LYFE!

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

Rachel has written 1142 articles for us.


  1. …whoa, never mind homophobia, there’s quite a bit of hate against blended families, polyamorous people, single parents, couples without kids, it-takes-a-village-to-raise-a-child type families! If “kids function better with a mother and a father” is the entirety of their argument, then should single parents be arrested? Should couples not be allowed to marry unless they promise to have children? What about infertile people, no marriage licenses for them? And all those abused, abandoned children, no love for them?

    • those are all very valid questions tiara. i think it is probably fair to say that cooper and the people he represents do in fact hate all the groups you mentioned. i’m just going to throw that out there.

  2. I was really thrilled about this recap – the bit about the tsunami made me laugh maniacally / deliriously from my couch – and then I saw that there is but one lone comment.

    Sup, Tiara? Excellent points, all.

    Walker’s obvious disdain for Cooper mirrors my own, and then some.

    This whole matter is fused to my very own heart and the fabric of my wonky little family, and I need good news. Fast, good news.

    Thanks for the awesome wrap-up!

    • I almost thought I had imagined the tsunami thing, thank you for confirming that that was a real thing and not something I had hallucinated

  3. wow a lot of words! but they were all riveting rachel!

    not surprised by this whole spouting a lot of words which don’t actually make sense together thing, maybe it’s just meant to convey the force of their convictions! bah.

  4. Brilliant recap, obviously I think our arguments are persuasive but I’m still paranoid that somehow Walker is going to find a way to rule in the H8ters favor.

    • I think Walker pretty much openly hates Cooper, but I guess he is “a real judge” who cares about “the law” so that may not guarantee us anything, you’re right. fingers crossed!

  5. “Do you remember a time when words meant things? I don’t” <- Exactly

    Chlorophyll is an extremely real menace, though; I hope you take that very seriously. It endangers the moral fibers of the love-blanket that society’s heteroexemplary marital units and/or their value-worshipping-and-law-abiding progeny require to (asexually) snuggle under…and the like.

  6. I wish I had read this article in reverse, ’cause leaving off with Cooper’s last statement literally made me puke as well. Otherwise, I’m totes excited to see the return of Judgement Daze via the Auto-awesome-straddle team. for reals. :D

    • don’t worry there is more to come and i think we are going to end on an up note for reals. if not i’ll buy you a drink or something. are you coming to the autostraddle party? come to the autostraddle party

  7. haha, thanks. I wish I could! I’m just outside of chicago and am doing the starving not-quite-an-artist thing, so no $ for a trip like that. I’ll totes be with you in spirit though:D

    • no you promised we would get married wasteunit. i remember from the previous recaps. i will not accept anything less.

      • Oh my goodness, you’re right. I’m very sorry. Married we shall be! How ’bout I bake a wedding cake to tide us over until it’s legal?

  8. rachel i am buying you so many drinks for these.

    also, “I’m not saying queers have never been discriminated against, but I’m saying that it’s 2010, and everything is fine now.” did he really say this?? everything is not fine! there are fake proms and people getting pushed off cliffs and ilene chaiken is still talking/wearing trashbags.

  9. I just want to say that I so, so want to read this recap, but I know I’m going to have nothing to do at work tomorrow, so I’m saving it for then. But this is so hard because Rachel, you are so good!

    Okay, ending useless comment here. I’ll be back tomorrow with something constructive, hopefully.

  10. Cooper must have been pregaming the closing arguments with Miss South Carolina’s pageant coach.

  11. Thanks you for your witty analysis Autostraddle/Rachel! Also, thankyou for listening to the nutbars (Cooper, so I don’t have to! As an Australian, I love these recaps for reporting something we would never get over here. Thanks!

  12. I skipped reading the lone article written by my national news outlet on the trial ’cause I knew I’d get a much funnier and wayyyy better informed one from Autostraddle. Wasn’t wrong.

    Also, “since the plaintiffs can’t prove that the consequences of legalizing marriage will be positive” – people are going to be able to freely marry the person they love, how is it even possible to argue that that is not going to be positive?

    Like, I get that he probs means for society/for the good of the species in the long run or something etc but I think considering all the postulating that’s going on here, the love and happiness that will result from the death of Prop8 is the only real, predictable outcome.

    Sure, because his a court and everything’s fair, they can argue that it *might* result in tsunamis? or something?…(wth was that?) but they really cannot argue that it won’t result in you know, the attainment of rights and freedoms (or at least the happiness/goodness/whatever that comes from getting that which you have been so long denied if they can’t admit that marriage actually is a right)for many, many people, which is a positive thing, no matter which side you’re arguing on.

    Basically, when Prop8 fails, people will be happy and have freedom, how is that not obviously positive? It doesn’t even need to be proven that there will be positives, it’s that obvious. Ergo, their argument is flawed, Cooper is crazy and I need a cookie.

    • “Cooper is crazy and I need a cookie.”


      also i actually did eat a ton of cookies while writing this, it’s the only way

  13. I think.. I think I need to go buy a couple sixpacks of beer right now.. And drown myself in it to relieve the pure stupidity of every single thing Cooper said.

  14. I’m trying to figure out how having a tube shoved up my twat and past my cervix to spray the inside of my uterus with baby juice counts as sexual activity with a third party…

  15. The AS recaps of Prop 8 are amongst the best things I’ve read on the internet. Or anywhere.

    Thank you for listening to the nuts so that we don’t have to. Great article Rachel!

  16. Rachel, please be careful with your heart. In the end a love affair with Ted Olson will only cause pain.

    Right now he seems like a really great guy. He’s brilliant, he’s persuasive and he’s on our side. But he’s also the guy that persuaded the Supreme Court to hand Bush the election in 2000. And just this year, he successfully argued that corporations should get to buy elections cause they’re just like people and therefore entitled to free speech protections.

    You’re probably be better off if you can avoid getting too attached. Eventually, he will disappoint.

    (Great recap).

    • Hey legal eagle Jessica — if Walker rules that Prop 8 is invalid, might there be a 2004 style wedding frenzy between that and the date of the appeal to the Ninth Circuit?

      • Oh…it depends.

        Generally trial orders are effective almost right away, so if the Court holds Prop 8 invalid, marriage for same-sex couples could resume more or less immediately. (I think there’s maybe a 10-day waiting period, but I could be wrong about that).

        However, even if we win, either Judge Walker or the Ninth Circuit Court of Appeals could stay the ruling, meaning that the opinion wouldn’t have an immediate effect. In that case, same-sex couples would still be unable to marry, and the frenzy would have to wait at least until the Ninth Circuit has a chance to review the case.

  17. I don’t know what to add to what others have already said, this recap is amazing, thanks, thanks.

    Is there a chance this process will bring us to federal gay marriage? I mean, if it goes to the supreme court and we win, how will they justify that a federal body has ruled over something the validity of which is restricted only to some states? I don’t know the US law, nor the English language for that matter.

    • I don’t know US law or English either but as far as I can tell, if the Supreme Court rules that Prop 8 is fundamentally discriminatory it does not bode well for the federal Defense Against Marriage Amendment, which is why everyone (including me) is shitting themselves over this.

    • It really depends on the precise language of the Supreme Court opinion; we could win in a big way or a little way.

      If five Supreme Court justices say that any law that prohibits gay and lesbian couples from having equal access to marriage is unconstitutional, then current laws limiting marriage would have to fall across the country (including DOMA).

      If, instead, five Supreme Court Justices sign onto an opinion that strikes down Proposition 8 based on the particular fact pattern in California (where all people had access to marriage and then the right was removed from a particular group that has historically faced discrimination), we still win. But the implications are not as broad, and it wouldn’t necessarily invalidate laws in other states that restrict marriage to opposite-sex couples.

      As a side note, we could also lose in a big way or a little way. But I’d prefer not to think about that.

  18. Funny I came here today looking for stuff about the trial, and you found me on Huff Po!

    We all in Sacramento?

  19. Hey Tankiegirlie, I discovered AutoS yesterday and had to pass the site along over at Huff Po. I got totally wrapped in the trial – and thanks to Rachel & Jessica I learned tons, laughed and stayed mostly sane. Stopped back today to see if R had touched base with a clairvoyant or something so we all can know what happens next!! jt (dallas, tx)

  20. okay so i read this late but my number one feeling is judge walker is amazing because i don’t understand how he managed to sit through all of cooper’s bullshit and not, like, throw a building at him.

  21. Rachel? Um. Hi. You know that I’m honored to have you writing for us, yeah? That I am SO VERY THANKFUL you write these recaps so I can understand the hate, yes? You know this. And you’ve made my head explode. Really really good job here you fancy lady.

    Also, for the record, I really literally laughed out loud by myself reading this:
    “…and Cooper goes on a rant worthy of that one woman who wanders through the Public Gardens screaming sometimes.” amazing. just. Amazing.

    • Alex it is an honor and a privilege to write things that go below your graphics of the Terminator. I really really mean that.

      Also I love it when something I wrote was not a feature AND THEN SUDDENLY IS

  22. I’ve said it before and I will say it again: Rachel, I love it best of all when you write things. My brain feels full of knowledge and information like a wet sponge.

    Let’s hug.

  23. ‘“without the marital relationship, society would come to an end”’ What in the worllld Mr. Cooper?? Thank you for plowing through his unintelligible closing argument Rachel, great recap!

    • yeah I think he was like smoking that stuff that makes you think the world is going to end? anyways, you’re welcome bolgabomka!

  24. Pingback: Mombian » Blog Archive » Weekly Political Roundup: Prop 8 Closing Arguments Edition

  25. I’m super late reading this but you know how when you read something awesome/witty/brilliant you want to quote it? There are so many things in this recap I want to quote.

  26. So agreed. some of my favorites are:

    – I like to imagine they are wearing complementary Spandex suits and capes.
    – “hey, what’s up, TO. What you doing this weekend?”
    “Oh you know ending inequality for all, kissing babies.”
    – Also your Mom called…
    – “4. I Rule That Cooper is Just Fucking Crazy.” I think a few of us actually questioned if there was a Tsunami that we had somehow not realized was occuring bc we’re paying so much attention to Prop 8 news. (No? Just me then.)

    • it should be noted that many of those funny things are actually Riese, added in during edits. she is a lot funnier than i am, she just has less time to write recaps.

  27. Pingback: Weekly Political Roundup: Prop 8 Closing Arguments Edition - Mombian

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