Day One of the Prop 8 Gay Marriage Trial: Judgment Daze

PROP 8: Hi everyone! As I’m sure you know, the Prop 8 trial started yesterday. We’ll be bringing you summarized coverage every day for the duration of the trial and we’ll try to have that for you at the end of the day. Today we are late ’cause we’re just now getting our shit together. If anyone has pictures or cartoons they would like to send to us, please email green [at] autostraddle dot com.!

We would have a lot more content about it if we could’ve watched it on YouTube! Unfortunately, the Supreme Court stepped in and squashed that plan, lest those who wish to uphold discrimination ever be discriminated against. DON’T YOU LOVE AMERICA SOMETIMES?! WE LOVE IT ALL THE TIME!

As the LA Times points out about the court’s decision on broadcasting the trial:

This is the second time in recent months in which the high court has intervened on behalf of the defenders of “traditional marriage” and granted an emergency appeal. In October, the justices blocked officials in the state of Washington from releasing the names of 138,000 people who signed ballot petitions seeking to overturn a state law giving equal benefits to gay and lesbian couples. Under Washington law, the names were considered public record.

I’m not a lawyer yet, so I don’t know things like precedent in this case. But I do know my gut feeling, and that is WTF ARE YOU SERIOUS. I understand that the justice system works in weird/slow/frustrating ways sometimes, but I’m really tired of hearing about biggots’ right to privacy while I can’t get married or fear coming out at work. Just sayin’.

But, to play devil’s advocate, here’s a column from the Washington Post about why the California judge shouldn’t have allowed broadcasting in the first place:

Walker performed legal pirouettes worthy of “Dancing with the Stars” to ensure cameras in his courtroom for the same-sex marriage trial. Keep in mind that a federal trial has never before been televised

Because you can’t watch the trial online, the next best thing is a liveblog. Rick Jackson at Prop 8 Trial Tracker did a great one yesterday. It’s riveting stuff. There’s no big picture yet, but Jackson gives a good blow-by-blow of what is being said. He’ll be blogging today’s proceedings, as well, so check it out for up-to-date info on the trial’s progress. The trial begins at 8:30 am PST.

DAY ONE – January 11th:

ANTI-GAY:’s lead counsel, Charles Cooper, gave his opening arguments defending “traditional marriage.” His arguments included:

+ Traditional marriage is pro-child & “promotes naturally procreative sexual activity in a stable and enduring relationship” to nurture children.
+ Gays & lesbians were not the target of discriminatory intent in the Yes on 8 campaign,
+ “Millions of Americans” believe in equal rights for GLBT but draw the line at marriage (THAT’S AN OXYMORON LIKE JUMBO SHRIMP) (also “millions of Americans” believe that Two and a Half Men is a good show, so let’s leave these people out of it).

PRO-EQUALITY: Andrew Sullivan has a transcript & summary of Ted Olson‘s opening statement at The Atlantic. Some key quotes:

“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.”

“As the witnesses in this case will elaborate, marriage is central to life in America.  It promotes mental, physical and emotional health and the economic strength and stability of those who enter into a marital union.  It is the building block of family, neighborhood and community.”

“Proposition 8 ended the dream of marriage, the most important relation in life, for the plaintiffs and hundreds of thousands of Californians.”

Ted Olson summarized his goals as follows:

During this trial, Plaintiffs and leading experts in the fields of history, psychology, economics and political science will prove three fundamental points:

First – Marriage is vitally important in American society.

Second – By denying gay men and lesbians the right to marry, Proposition 8 works a grievous harm on the plaintiffs and other gay men and lesbians throughout California, and adds yet another chapter to the long history of discrimination they have suffered.

Third – Proposition 8 perpetrates this irreparable, immeasurable, discriminatory harm for no good reason.


Jezebel reports that, “much of yesterday’s testimony focused on the personal stories behind the fight for marriage equality. Kristin M. Perry, (who brought the case to court) talked about falling in love with her partner, Sandra B. Stier. Perry was asked what it means to be a lesbian, and if she could conceive of changing her sexual orientation”:

Ms. Perry, for instance, said that she had tried dating boys when she was growing up in rural Bakersfield, Calif., if only for a chance to “have a date for the prom,” but that she had always known she was a lesbian.

Asked by Mr. Olson if she could change her sexual feelings, Ms. Perry paused, then replied: “I’m 45 years old. I don’t think so.

P.S.: The LAist reports that at the end of the day, Protect Marriage — the organization responsible for Prop 8’s passing — sent an email to its supporters summarizing the day’s events:

Never did I think I would see the day where God’s institution of marriage – the most stabilizing, pro-family, child-benefiting institution in human history – would be on trial before a federal judge in the nation whose forefathers founded the country on the premise of “in God we trust.”

The LAist: “Too bad “In God We Trust” wasn’t used by our forefathers. Rather, it first appeared on coins in the 1860s and paper money in the 1950s.”

Video: And of course, there were plenty of people gathered outside the courthouse to express their views. Check out the cute lesbian couple a the 0:09 mark!

What to Watch for Day Two: U.S. history professor at Harvard Nancy Cott, who Olson and Boies hope will shoot holes through the idea of “traditional” marriage:

Also, Emily Choo is on top of this shit even though she’s from Canada and this trial won’t legally affect her! She’s provided you with a full list of articles about yesterday’s trial to check out:

News Unrelated to the Prop 8 Trial:
WEED: Two days after the Senate voted against marriage equality, the New Jersey legislature legalized marijuana. What’s up with states doing that? Maine legalized pot in the same election it repealed gay marriage. And it looks like California might have the opportunity to allow weed soon. (@advocate)

UTAH: A lesbian Utah legislator has decided to carry a child for a gay couple. She’s in part taking a stand against Utah’s discriminatory adoption laws. (@dallasvoice)

UGANDA: We’ve heard a lot of outrage over Uganda’s anti-gay bill from the international community. But now there’s some opposition within the country!

NEW YORK: George Onorato, one of the New York Democrats who voted against the gay marriage bill last month, won’t run for reelection. Says the New York Daily News: His recent “no” vote on gay marriage made him vulnerable to a primary challenge, worrying party leaders who urged him to step aside, insiders said.

Before you go! Autostraddle runs on the reader support of our AF+ Members. If this article meant something to you today — if it informed you or made you smile or feel seen, will you consider joining AF and supporting the people who make this queer media site possible?

Join AF+!


Sarah lives in Chicago with her partner and her big white Great Dane. She is a lawyer by day and a beer brewer/bread baker/knitter by night. She & her partner are currently learning how to grow their own food, and eventually they hope to move to a small farm outside the city. In 2009-2010, before jetting off to law school, Sarah was Autostraddle's Managing Editor.

Sarah has written 127 articles for us.


  1. olsen is making a really brilliant equal protection argument. anyone who knows the law knows he’s right. it’s just a matter of whether the judge (and justices in the future) care more about the law or their vague definition of “what’s right” or “moral” or other technicolor bullshit.

  2. trying to control the urges i get to punch people in the face due to idiots “defending marriage”.

    boo at those whores for metaphorically punching ME in the face, and the legal system for letting them parade around doing it.

  3. Legalizing weed is our super secret Plan B. ‘Cause the real reason why people vote against us is they are too uptight. Just relax, man…

  4. Loooooong time lurker here. Hi. I’m coming out of my internet hidey-hole ’cause I gots questions.

    So in the UK we have civil partnerships and we’re all super happy about it. Equal rights RULE.
    But nobody talks about gay marriage. Hell, I’m not sure anyone even wants gay marriage. Marriage is a religious institution right? The vast majority of the LGBT community in the UK wants nothing to do with any religious institution. Give us equal rights and we’re happy–the less god involved the better.

    So Americans, what I wanna know is – if you all got equal rights protected by law, but without the word ‘marriage’, would you be totes over the moon? would you keep pushing to get the same wording as heteros? do you reckon there’s a connotation that a civil partnership is somehow less than a marriage?

    • if you all got equal rights protected by law, but without the word ‘marriage’, would you be totes over the moon?</em?

      That’s a pretty big IF on this side of the pond. From what we’ve seen states that offer domestic partnerships don’t always provide the same legal protections/rights as marriage in that state. And you can pretty much forget about federal protections.

      We just don’t seem to have that separation of Church and State thing down like you guys. John Locke (not the guy from Lost) was English after all.

    • ilon from UK: The very question of whether the government should be in the “marriage” business came up immediately in the Prop 8 trial, according to press reports. The lawyers should have said plainly, yes, government has no role in marriage, but they claimed instead that marriage was too important for government not to be involved for the benefit of the people. Unlike western Europe, the US has a very strong right wing conservative christianity, though less powerful than last decade. Look at NOM comments above. They now think this trial is about to abolish chrisian marriage and imprison priests. They are the stumbling block for the government getting out of the marriage business while maintaining a civil registry like the rest of the civilized world. It’s part of their plan for more religion in government, not less.

      Simple answer: gays would be fine with equality in law and in fact in any scheme – civil unions for all or marriage for all – but separate nomenclature leads to separate results.

      • Yeah it’s a huge IF, but I was thinking more theoretically. (how depressing to talk about equal rights hypothetically. )

        I feel like discussing gay marriage, voting on gay marriage etc fires up the religious right to start shouting about the bible and changing the definition of marriage.
        It’s like playing to the wrong crowd.

        When you bring it back to basics, surely few (or at least fewer) people disagree with equal protection under law?

        • Theoretically they can call it whatever they want as long as we get our rights.

          It seems like every time we steer the conversation away from the Church the Christian Right bring it back to being all about them. They love their “slippery slopes”. Give the gays civil unions and they’ll want marriage, give them marriage and they’ll want to adopt kids, then all the kids will be gay, then no one will be able to procreate because gay sperm and lesbian eggs are afraid of each other. It’s ridiculous, but how they think. Half of America is crazy and we’re just waiting on them to start taking their meds.

        • It seems — once the religion is stripped from it — that the question becomes are heterosexual relationships as valuable as (equal to/the same as) homosexual relationships?

          You really can’t win against religion, in my opinion. If the religious right wasn’t fighting for the “protection” of marriage, they would still vote it down simply because they do not believe in the equality of the relationships. Heterosexual relationships are not only preferred but mandated. Homosexuality is an abnormal perversion which should not be condoned.(Of course, if someone tried to use this defense in a court of law, it probably wouldn’t work out too well…I think). Equal protection is for people who are equal, not for people who are lesser or different.

          Really, the marriage debate is a fight for cultural (as much as civil) equality, it seems from where I’m standing. “Marriage” just seems like a thin mask for what’s really going on here, the confrontation of fundamentalist discrimination. So long as the law acknowledges that the two relationships are unequal, it’s culturally ok for people to deny their equal value.

          On a completely different note: I love this site. I think I’m addicted.

        • I don’t care if they call it marriage or whatever, I just want EXACTLY the same rights! My girlfriend lives in Europe, and though I would love to marry her and sponsor her for immigration I can’t because the federal government won’t let us get married. If she were a man, I could do that immediately! It doesn’t matter that my state offers domestic partnerships, it’s still not equal to marriage to the federal government, so I can’t have my girl every day, I can’t marry her, I have to spend thousands a year to see her every few months if I can get the time off. I can’t have my girl, just because she’s a girl. If there were civil unions with the EXACT same benefits of marriage including immigration rights, I’d be all for it.

    • Another important consideration is that there is a plethora of legislation using the term “marriage,” backed up by the implicit notion that that means marriage between a man and a woman, which is an important consideration in legal issues because of the canon of interpretation of legislative intent. Granting same-sex couples the same rights would have to be accompanied by an overall legislative language overhaul. One could say that Congress can just put a “Civil unions will now be synonymous with marriage…” clause in whatever they enact, but there’s a counter-argument that this is too general and cannot aptly apply to all current legislation.

      And of course, there are federal vs. state issues, which is where the “marriage is best left up to states” argument comes from. Of course, how such people reconcile things like Social Security benefits with this statist approach is beyond me, but, then, constitutional law is really not my strong suit.

      I agree with you on whether we’re using the right word. I spoke with one of the directors of a prominent LGBT organization about that concern, and I posited that it was terms like that that caused religious individuals, even those who aren’t necessarily homophobic, to oppose same-sex marriage because they fear that this will force their church/temple/mosque to perform such marriages. But again, that’s the result of a cultural and legal conflation of the word “marriage” with “marriage between a man and a woman” instead of “grant of government benefits.”

  5. Thanks for helping me keep up-to-date on the trial.

    Having to print out a liveblog to read on the train ride home makes me feel like I’ve gone back in time- but I’m willing to do what it takes to keep up.

    Definitely looking forward to the Maddow interview of Boies and Olson TONGIHT!

  6. I feel like they’re gonna win, I just feel it. Also, props to Alex because the terminator graphic IS awesome sauce.

  7. Hoping for the best for you all. I’ll be watching/cheering for my friends in California.

    BTW ~ I read the entire artikal lik it waz Ahhhhnold talking. Thanks. lol

  8. “+ Traditional marriage is pro-child & “promotes naturally procreative sexual activity in a stable and enduring relationship” to nurture children.”
    So I suppose we should start taking children from single mothers.

    “+ “Millions of Americans” believe in equal rights for GLBT but draw the line at marriage”
    What the fuck? What other right are there?! Essentially.

    None of these points are fucking valid. I say that time and time again but it amazes me every time I hear them.

    “Too bad “In God We Trust” wasn’t used by our forefathers. Rather, it first appeared on coins in the 1860s and paper money in the 1950s.”

  9. Check out Luke Otterstad, who appears about 56 seconds in. I know this guy. This is crazy and terrifying. Just when I thought I was done, life plays a weird joke on me and he shows up on Autostraddle.

    I don’t know how he made the video, but he always good at manipulating the press. Forgive me if I seem bitter, but I’ve spent almost three years now dealing with him and his fanatical cult friends in my community (Sacramento, CA). The worst of it was when he and his fanatic friends took over the student association at our college using this platform to pass a resolution that American River College supports Proposition Eight. We were the first community college to take an “official” stance.

    Not fun times. Well, actually that’s a lie. The part that occurred after all the harassment and arguments and fear where we came together as a campus, rose up against them, waved a lot of protest signs around, made speeches, and eventually managed to counteract voter apathy and an incredibly conservative student body enough to vote them out by a narrow victory was kind of fun.

    • Luke Otterstad adores his father Dick Otterstad. Dick Otterstad was convicted of spousal abuse against his wife. So much for the sanctity of marriage. Need I say more?

      • I have a sort of weird respect for Luke. He’s idealistic, intelligent, and fairly well spoken, but he’s also completely wrong about almost all of his ideas. You’re absolutely correct to blame it on his family. They’re crazed. I used to joke that I was gonna seduce Luke and teach him the error of his ways, but then I decided that he wasn’t really worth my gold star. C’est la vie.

  10. Homos only want the word “marriage” because they are trying to trick the masses into thinking they’re normal. They figure if homosexuality is attached to the word “marriage” it would help normalize homosexuality. They are deceiful freaks. They aren’t really after rights alone. They are after a damn word because they cant’ stand for heteros to have our own identity which is pathetic.

Comments are closed.