Same-sex marriages can resume Wednesday, Walker rules

Chief Judge Vaughn Walker ruled Thursday that, beginning Wednesday at 5pm, California’s ban on same-sex marriage would no longer be in effect.

In an 11-page order, Walker wrote that Proposition 8 proponents had failed to convince him that the ban  should continue while they pursue an appeal to prove its constitutionality.

“An injunction against enforcement of Proposition 8 is in the public’s interest,” Walker wrote.  He noted that trial evidence had shown that preventing the marriage of same-sex couples violated their Constitutional rights — while allowing them to marry hurt no one.

Walker ordered that Proposition 8 remain in force for only one more week.  This extension is intended to provide the Ninth Circuit Court of Appeals with an opportunity to review his order before the ban is dissolved.

Please click the link below to read the order in its entirety.



Walker rules Proposition 8 unconstitutional

Vaughn WalkerChief Judge Vaughn Walker ruled Wednesday that Proposition 8 violates the federal Constitution.

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” he wrote.  “Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.  Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

Walker closed his 136-page opinion by stating that the plaintiffs had demonstrated “by overwhelming evidence” that Proposition 8 violates their due process and equal protection rights.  He added that it would continue to do so until state officials stopped enforcing the same-sex marriage ban, and thus, he permanently enjoined their application of it.

However, Walker also temporarily stayed this order.  He will choose whether to execute it after the parties present oral arguments on the merits of allowing Proposition 8 to remain in force throughout the defendants’ appeal.  A date for this hearing has not yet been set.

Outside the courthouse on Wednesday, about 50 gay marriage supporters carrying signs and flying rainbow flags cheered the ruling.

Please see the link below for the full decision.

Walker Decision


Decision expected Wednesday, 1pm – 3pm PDT

Chief Judge Vaughn Walker has announced that, between 1pm and 3pm PDT on Wednesday, he will issue his written order containing findings of fact and conclusions of law in Perry v. SchwarzeneggerProp 8 on Trial will post the decision.  It will also be available free of charge at


Closing argument transcripts, interrogatories, and photos

In anticipation of tomorrow’s district court ruling in Perry v. Schwarzenegger, Prop 8 on Trial is posting copies of the questions Chief Judge Vaughn Walker posed to the parties in June and the answers they gave.  We are also providing a transcript of the trial’s closing arguments and photos taken after that long day.

Click below to access these multi-media elements.

Read the rest of this entry »


Same-sex marriage as the civil right of now

Plaintiff attorney Theodore Olson closed Perry v. Schwarzenegger on Wednesday by invoking the sacred pantheon of America’s civil rights rulings and by placing Perry, in terms more direct than ever, squarely atop that altar. Olson gave Chief Judge Vaughn Walker every reason to view Perry as a case whose facts are uniquely positioned to favor same-sex marriage and, as such, as the vessel now carrying forth perhaps the most important civil rights issue in a generation.

Olson’s closing presented a more powerful and coherent argument than the plaintiffs had mustered during January’s detailed testimony. He reduced their case to a few basic assertions: Olson said first, quite plainly, that it is “okay to be gay.” Second, that the Proposition 8 campaign was an attempt to undermine the ascent of this ideal. Third, that Proposition 8 unfairly forces gay people to sacrifice their Constitutional right to marry in order to exercise another Constitutional right – the right to engage in sexual conduct with another consenting adult. And finally, that American history and jurisprudence can no longer turn a blind eye to such unjustified prejudice.

Read the rest of this entry »


Closing Arguments: What Marriage Is

The definition of marriage was central to closing arguments in the Perry case Wednesday. The Supreme Court has repeatedly held that marriage is a fundamental right under the Due Process Clause. If heterosexual procreation is implicit in that fundamental right, Prop 8 likely survives the plaintiffs’ Due Process argument. But if marriage is two people’s mutual commitment to enter a legally sanctioned social unit, and if it involves individual freedom and autonomy in choosing a life partner without regard to gender, then the state and voters need a very good reason to deny marriage to gays and lesbians. Given that Prop 8’s proponents submitted minimal expert testimony, they will likely lose if the court finds that the fundamental right of marriage extends to gays and lesbians.

To the defenders of Prop 8, sexuality and “responsible procreation” are central to marriage. Marriage is a means of channeling straight peoples’ sex lives into a relationship that increases the likelihood that their children will be raised by biological parents. That is why it is constitutionally permissible to exclude gays and lesbians from marriage, said Charles Cooper, lead attorney for the proponents of Prop 8. Unlike straight couples, who can have children by accident, gay couples must affirmatively choose to have children. Because the children of gay parents are necessarily desired, Cooper said, they are not as likely as children of straight couples to become a drain on state resources. Thus it is entirely reasonable for the state to extend marriage only to straight couples, Cooper said.

Cooper and his legal team offered no evidence that excluding gays and lesbians from marriage advances responsible procreation. No evidence is necessary, Cooper said, because no one knows the impact gay marriage would have on heterosexual marriage. It’s enough that there’s a risk, and “it couldn’t be more rational for the people of California to say, we aren’t going to run that risk,” Cooper said.

Read the rest of this entry »


Closing arguments & dispatches today

Berkeley Law students Amanda Beck and Sarah Ruby are back to report on today’s closing arguments in Perry v. Schwarzenegger, the federal challenge to California’s ban on same-sex marriage.

Former Solicitor General Theodore Olson is scheduled to begin the plaintiffs’ closing argument at 10am. Attorney Charles Cooper will follow to defend Proposition 8 at 1pm. Both sides expect to weather vigorous questioning under Chief Judge Vaughn Walker.

A more detailed schedule follows. Please check back later today for dispatches from the courtroom.

10:00 – 11:30am PDT:  Plaintiffs’ Argument

11:30 – 11:45am PDT:  City and County of San Francisco Argument

11:45 – 12:00pm PDT:  Governor, Attorney General, and County Defendants’ Argument

1:00 – 3:15pm PDT:  Proponents’ Argument

3:15 – 3:45pm PDT:  Plaintiffs’ Rebuttal


Plaintiffs used withdrawn defense witnesses to make their case

At a press conference following the tenth day of the Prop 8 trial, plaintiffs’ attorney David Boies smiled cheerfully into the lights atop television cameras. Boies had spent the afternoon cross-examining Kenneth Miller, an assistant professor at Claremont McKenna College and one of two witnesses called by the defense. Miller “did a great job for us,” Boies said. “[The defendants are] walking away from their experts. I suspect they’ll be walking away from this guy.”

The defense did not walk away from Miller, who continued testifying the next day. Another defense witness, David Blankenhorn of the Institute for American Values, also took the stand. But it remains unclear why the defense called only two witnesses. Prop 8 proponents initially blamed their shrinking witness list on the fact that the trial would be broadcast on YouTube. However, the defense did not change course after the Supreme Court halted outside broadcast of the trial. Other witnesses refused to testify, the defense said. Not so, according to plaintiffs, who suggested, instead, that defendants simply dropped experts that would undermine their position.

The plaintiffs ended up using two of the withdrawn witnesses, Paul Nathanson and Katherine Young of McGill University, to make their case for same-sex marriage. On the seventh day of the trial, plaintiffs’ attorneys played clips from Nathanson’s and Young’s videotaped depositions, which Boies conducted before the trial began. Nathanson and Young are religious studies professors and co-authors of books about misandry, a form of prejudice and discrimination against men.

Read the rest of this entry »


Blankenhorn testifies about marriage, scholarship, and soul-searching

David BlankenhornThe defense this week called the long-awaited David Blankenhorn, an expert who attorneys had promised would help articulate why traditional marriage should be protected as such.  Blankenhorn’s name was highlighted in the defense opening, and as one of only two defense witnesses, he seemed to shoulder many of the party’s evidentiary hopes.

However, by the time Blankenhorn finished at least seven hours of testimony on Wednesday, it was not clear that he had aided the defense cause.  Not only had he conceded several plaintiff points, including that same-sex marriage would potentially reduce the divorce rate.  He had also given the impression that his testimony was largely the fruit of deep soul-searching, not the articulation of scientific conclusions.

Watching Blankenhorn was fascinating, if only because he seemed to embody the personal struggle that many Americans are navigating with regard to same-sex marriage.  Blankenhorn seemed to have weathered reconciling his own mind, heart, and statements on the matter.  But in a peculiar stance for an expert witness, he offered the sincerity of his journey as proof of the persuasiveness of his conclusions.

For more on this unusual episode, read on.

Read the rest of this entry »


Attorneys give remarks and clues about arguments to come

Speaking to reporters after the close of testimony yesterday, plaintiff and defense attorneys summarized their takes on Perry v. Schwarzenegger thus far.  Their remarks might also give clues about how legal arguments will proceed in the coming months.  Here are some of their comments:

Plaintiff attorney David Boies:

“The American public has gotten a sense of what the facts are, and what we have done is lift the veil.  We have exposed the paucity of the arguments on the other side.  We’ve exposed publicly the fact that there simply is no basis for preventing gays and lesbians from getting married.  It doesn’t help anyone.  They’ve had an entire trial to come forward with a single witness who would testify that there was any harm, who would show any harm, and they could not do that.”

“The witnesses that they brought admitted that what was at work here [in passing Proposition 8] was a religious divide based on prejudice and stereotype and that there was no justification – none, zero – for depriving gays and lesbians from the right to marry.”

Read the rest of this entry »