OK, quick show of hands: During the Proposition 8 campaign, how many of you ridiculed those commercials that suggested THIS would happen if Prop 8 didn’t pass?
Well, I guess you were half right. It’s happening anyway.
Dr J was up in San Francisco earlier this week for the Prop 8 trial in the 9th Circuit Court of Appeals. In addition to the interviews we’ve already posted, she also spoke with Austin Nimocks and Jordan Lorence (both of these are available on our podcast page under Prop 8). There’s also a pre-trial interview with Todd Wilken of Issues, Etc; more are on the way.
by Maggie Gallagher
For Charles Cooper, chief litigator for Proposition 8, the ultimate vindication will come when five U.S. Supreme Court justices overturn U.S. District Court Judge Vaughn Walker’s decision. Judge Walker is the San Francisco judge who took it upon himself to rule that 7 million Californians had no right to vote for Prop 8 — gay marriage, he ruled, is required by the U.S. Constitution. Read more…
David Boies has had a big week in California. On Monday, he argued in support of same-sex marriage in the state’s pitched legal battle over Proposition 8. On Tuesday, a judge awarded his client Jamie McCourt a victory in her divorce war with her former husband over the ownership of the Los Angeles Dodgers.
But as those triumphant events unfolded out west, a sanctions motion was filed in Federal District Court in Manhattan against his firm, Boies Schiller & Flexner, accusing it of “egregious misconduct” and “gross negligence.”
The court filing was made in a year-old case involving accusations that trade secrets were stolen from University Sports Publications, a company based in Elmont, N.Y., that contracts with college and professional sports teams to sell advertising in their souvenir magazines and yearbooks.
The alleged corporate thief? Playmakers Media, a company that does what University Sports does, but does it exclusively for the New York Yankees, a longtime marquee client of Mr. Boies. The Yankees, a former client of University Sports, formed Playmakers in 2007. Read more…
Dr J was up in San Francisco earlier this week for the Prop 8 trial in the 9th Circuit Court of Appeals. While she was there, she interviewed Bill May, Bruce Hausknecht, and Ron Prentice (all of these are available on our podcast page under Prop 8). She was also interviewed by KTVU; that video is currently up on their website.
from Dr. Morse
I’ve noticed that the judges seem to like it when the lawyers start their answers by saying, “yes your honor,” even if he then goes on to say something completely different!
from Dr. Morse
Cooper is trying to distinguish Prop 8 from the Romer case, which struck down a CO initiative. IMHO, he is giving away too much in agreeing with Romer. But I guess he doesn’t need to fight that fight here.
Cooper is now referring to the 8 appellate state and federal courts that have addressed these cases, which have upheld the traditional marriage, and rejected the 14th amendment arguments. He is specifically mentioning Baker v Nelson.
These guys are making a big deal out of the fact that Prop 8 took away the right to marry, as the CA Supreme Court had enacted same sex marriage. Therefore, I guess, we are supposed to believe that the people have no power to amend the state Constitution. Chuck is making exactly the right point. Prop 8 is a Constitutional amendment, which the people still have the right to make.
Reinhardt is making the point that the right to amend the Constitution is limited. He/they keep bringing up the example of “could the people vote to have segregated schools?” Cooper responds by saying that the federal constitution prohibits that policy. Therefore, the fact that the CA Supreme Court enacted ssm prior to Prop 8, is not relevant. The people of CA have the right to amend their Constitution.
Reinhardt isn’t buying it. Surprise.
from Dr. Morse
Judge Smith asks: what is the rational basis for having a ballot initiative for the word “marriage” when the state of CA already allows homosexual couples to become parents.
Cooper answers: the word is the institution. Removing gender from marriage changes the institution of the marriage.
from Dr. Morse
I chatted with John Eastman during the break. His take on the proceedings so far is that he thinks Reinhardt wants to write the opinion on this case. Therefore, he will give standing to the proponents so he can write the opinion.
from Dr. Morse
Cooper’s closing line:
If we don’t have standing, I urge you, Judge Reinhardt, to ask the CA Supreme Court to determine whether any CA state law gives anyone standing to defend prop 8. Do that, rather than dismiss the whole case out of hand.
from Dr. Morse
10:50 AM: Judge Smith (I think): haven’t the AG and the governor nullified the effect of the efforts of the voters and Proponents of Prop 8, by not bringing the appeal? Reinhardt is chiming in against Boies as well. “AG failing to defend the initiative is not consistent with the purpose of the initiative system. The governor is not explicitly allowed to veto the initiative, but he and the Attorney General are doing so indirectly by failing to defend it. Read more…
from Dr. Morse
10:30 am david boies
Now the judges are giving him a hard time. (Maybe I don’t know what a hard time looks like in Federal Court.)
The issue seems to be: which local clerks and whether local clerks are bound by Judge Walker’s injunction. Judge: Is Ms. Vargas of imperial county in fact bound by the injunction? If she isn’t, then she can do what she wants without penalty. If she is bound by Walker’s injunction, then she is more likely to have standing to challenge the injunction.
from Dr. Morse
10:20 AM The judges have not allowed Rob Tyler to get a full sentence out of his mouth. He is trying to defend the standing of the clerk of Imperial County to intervene on behalf of Prop 8. All three judges are giving him a hard time.
Tyler is trying to say that Walker’s ruling will impinge on the clerk’s performance of her duties. These guys are hair-splitting beyond belief.
I would have thought the standing issues would be the easiest ones. Silly me!
from Dr. Morse
This is the first part of the day’s work, dealing with the jurisdictional issues. Chuck Cooper is at the podium. Do the proponents of Prop 8 have standing to appeal Judge Walker’s overturn? Cooper says the issue is controlled by Karcher v May. Question from the bench, about when did Karcher occur relative to the AZ case. Cooper is saying Karcher is more relevant than AZ for English. Read more…
from Dr. Morse
Here inside the courtroom, we are surrounded by classical architecture, oak, mahogany and marble. These are all the features that are designed to give us the feeling of permanence and majesty of the law. All very impressive. Not so great, however, if the law can be changed on the whim of a single judge.
from Dr. Morse
9:30 AM Dec 6, 2010: We all got in and are settled. Our little group is in the front of the courtroom, on the side for Proponents (meaning Proponents of Prop 8.) it is kind of like a wedding: bride’s family on one side, groom’s family on the other. Come to think of it, maybe that’s not the best comparison. Hummm.
Anyhow, I am sitting here with Andy Pugno, Jordan Lawrence and Jennifer Monk, attorneys for our side. Read more…
I expect that Chuck Cooper will defend the voters of California against the truly scurrilous attack made by Olsen and Boies and repeated by Judge Walker. The plaintiffs complained about the advertising used during the campaign. I was shocked the first time I heard this complaint. They couldn’t find anything explicitly “homophobic” in the campaign ads. So they drew inferences about the intent of the voters, from subliminal messages that they imagined the voters must have been really responding to. Here is what Cooper said in his motion to appeal about “inferring” voter intent. (pp 60-61)
The district court thus erred as a matter of law in drawing the “inference” that Proposition 8 was motivated solely by an irrational and bigoted “fear or unarticulated dislike of same-sex couples” or by the “belief that same-sex couples simply are not as good as opposite-sex couples.”
At any rate, the inference of anti-gay hostility drawn by the district court is manifestly false. It defames more than seven million California voters as homophobic, a cruelly ironic charge given that California has enacted some of the Nation’s most progressive and sweeping gay-rights protections, including creation of a parallel institution, domestic partnerships, affording same-sex couples all the benefits and obligations of marriage….
The district court’s “inference” regarding the subjective motivations of seven million Californians is based on a tendentious description of no more than a handful of the cacophony of messages, for and against Proposition 8, that were before the electorate during the hard fought and often heated initiative campaign.
See what I mean? He is sticking up for the voters. He had to so so, because the opponents of Prop 8 have impugned the motives of millions of California voters, and the millions of other Americans who agree with them in supporting the principle that marriage is the union of one man and one woman.
Chuck Cooper, lead attorney for the defense of Proposition 8, will surely make a big deal out of the sloppy reasoning of Judge Walker’s opinion. He will certainly point out that there are numerous cases at the state and federal level, which are precedents for the same sex marriage issue. These cases hold that there is no federal right to same sex marriage.
A good lawyerly practice is to list all the relevant precedents and distinguish them from your own case. In other words, Olsen and Boies should have explained why those cases are different from the Prop 8 case, so that those existing should be set aside to make way for the new finding that the US Constitution requires same sex marriage.
Olsen and Boies didn’t do that. Judge Walker didn’t do that. They didn’t even mention Baker v Nelson, Adams v Howerton and a host of state and district court rulings around the country.
As Cooper said in his motion to appeal, “Given that the district court did not cite a single case that had addressed these issues, one might thing the court was deciding issues of first impression on a blank slate. Nothing could be further from the truth…. The sheer weight of authority opposed to the district court’s decisions further confirms that the decision will likely be reversed on appeal.”
The Prop 8 legal defense team has taken a beating in public debate. But the MSM, in the person of Washington Post reporter Lisa Leff (finally) start asking the right questions. What was the point, if any, of all the expert testimony presented in the original Prop 8 case? Our side says it was basically pointless, from a legal point of view, and merely for public relations purposes. Reporter Leff found some commentators who see the point:
Eugene Volokh, a UCLA law school professor whose popular legal-affairs blog was inundated with comments from observers critical of the defense’s trial performance, said, “If the question is whether they should have introduced more witnesses at trial, I’m skeptical it would have done any good. It certainly wasn’t necessary, and I’m not sure it would have been at all helpful.”
And University of Pittsburgh law professor Arthur Hellman said that the mere number of witnesses called by each side is unlikely to be decisive in any event. “It is unlikely the court would consider itself bound and limited by what happened in the district court, that it could not go beyond the trial record,” he said.
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