The New York Times reports that the trail opened with some sharp words from Judge Vaugh Walker who repeatedly interrupted the opening statements of both Mr. Olson and the lead defense counsel, Charles J. Cooper, admonishing them to provide hard evidence — not just rhetoric.
Ted Levine aka FedCourtJunkie liveTwittered the following from the packed coutroom today and also talks about a little letter war between Ninth Circuit Chief Judge Alex Kozinski and the U.S. Judicial Conference in Washington, D.C. The folks back East asked Kozinski to “consider” conference policy against cameras in the court. Kozinski, who has a turbulent history with Conference oversight (Internet firewalls, anyone?), fired back a missive defending the Ninth Circuit’s power to broadcast.
Among other things, Walker asked how Proposition 8 could be discriminatory since California already allows domestic partnerships that carry the same rights and benefits of marriage.
“If California would simply get out of the marriage business and classify everyone as a domestic partnership, would that solve the problem?” the judge asked.
Former U.S. Solicitor General Theodore Olson, who represent two same-sex couples who filed the suit, answered that he did not think such a move would be politically feasible.
“I suspect the people of California would not want to abandon the relationship that the proponents of Proposition 8 spent a tremendous amount of resources describing as important to people, and so important it must be reserved for opposite-sex couples,” he said.
Olson quoted the U.S. Supreme Court’s own lofty description of matrimony to demonstrate what his clients were being denied.
“In the words of the highest court in the land, marriage is the most important relationship in life and of fundamental importance to all individuals,” Olson told a courtroom packed with witnesses, reporters and members of the public…..
Also, in his opening statement Theodore Olson went right after common right-wing arguments against marriage equality:
“And, as for protecting “traditional marriage,” our opponents “don’t know” how permitting gay and lesbian couples to marry would harm the marriages of opposite-sex couples. Needless to say, guesswork and speculation is not an adequate justification for discrimination. In fact, the evidence will demonstrate affirmatively that permitting loving, deeply committed, couples like the plaintiffs to marry has no impact whatsoever upon the marital relationships of others.
When voters in California were urged to enact Proposition 8, they were encouraged to believe that unless Proposition 8 were enacted, anti-gay religious institutions would be closed, gay activists would overwhelm the will of the heterosexual majority, and that children would be taught that it was “acceptable” for gay men and lesbians to marry. Parents were urged to “protect our children” from that presumably pernicious viewpoint.
At the end of the day, whatever the motives of its Proponents, Proposition 8 enacted an utterly irrational regime to govern entitlement to the fundamental right to marry, consisting now of at least four separate and distinct classes of citizens: (1) heterosexuals, including convicted criminals, substance abusers and sex offenders, who are permitted to marry; (2) 18,000 same-sex couples married between June and November of 2008, who are allowed to remain married but may not remarry if they divorce or are widowed; (3) thousands of same-sex couples who were married in certain other states prior to November of 2008, whose marriages are now valid and recognized in California; and, finally (4) all other same-sex couples in California who, like the Plaintiffs, are prohibited from marrying by Proposition 8.”
It was a busy and eventful dayand the rest are sure to be just as full