Prop 8 Trial – Day 1: First Impressions

Posted on January 12th, 2010 by Katherine Franke

Perry PlaintiffsThe case challenging the constitutionality of Proposition 8 went to trial yesterday in federal court in San Francisco.  The judge, Vaughn Walker, had ordered that the trial be broadcast on YouTube, but moments before the trial began the Supreme Court barred the YouTube broadcast.  The Court’s temporary ban expires tomorrow when they will issue a final order, so we’ll see whether they subsequently allow a larger audience to watch the trial remotely.  This would be a first for a federal court trial in the U.S. Until then, those who cannot attend the trial can follow it with several live bloggers who are in the courtroom.  Here, here and here.

Why is it important that the trial be broadcast?  The trial testimony is, in important respects, orchestrated as a primer on the history of marriage, on the psycho/social aspects of the family, and of the meaning of homophobia – as lived by real people.  Winning the case is certainly the plaintiffs’ primary objective, but they are also trying to change the conversation about marriage – to shed light on why same sex couples want to get married (as Sandy Stier testified yesterday, “so we can hold our heads high with our families”), and why the inability to marry is an affront to their dignity and equality.  Devotees like myself will read the blogs following the trial, but video coverage would reach a larger audience and would give the testimony much broader impact.

Having said that, my first impressions about day 1 of the trial:

I was both astonished and impressed that Judge Walker, on his own, challenged the plaintiffs with the notion that maybe the best solution to the problem here would be to get the State out of the marriage business altogether.  He started off the day by interrupting Ted Olson’s opening statement with the question: 

Walker: “Does that right (to marry) presume that the state has a DUTY to issue marriage licenses?

Walker: Are the plaintiffs not registered domestic partners?

Olson: We will present them and they will tell you.

Walker: What disability do they operate under b/c they can’t marry? Are these differences of a legal nature? Is this a product of state action or of society?

Olson: Domestic partnerships are lesser and not the same as marriage.

Walker: Are domestic partnerships limited to same-sex couples? So where is the discrimination? What if CA got out of the marriage business and simply offered everyone domestic partnerships?

Olson: Yes, that might mean people can enter into marriages without state sanction and then get D/Ped by the state. But the people of California will not get out of the biz of marriage.

(This comes from FireDogLake’s Live Blogging)

This was SUCH a smart question – and the testimony that followed from the four plaintiffs revealed over and over how on point this question was.  It echoed the questioning of California Supreme Court Chief Justice Ronald George in the arguments on the state marriage case.  It’s interesting that straight judges keep pressing this point while the advocates of marriage equality want to avoid it at all cost.

Olson apparently wasn’t prepared for this creative, and in many respects radical, suggestion from the judge and had to have a note passed to him by one of his team informing him that the current domestic partnership law (which grants all of the rights of married people to DP’d people in the state of California) is not available to heterosexual couples under the age of 62.  So the state would have to change the law to make it a viable solution to the marriage exclusion problem.

The Judge came back to the issue when Sandy Stier, one of the plaintiffs, was testifying.  Unlike the other plaintiffs, Stier had been married (to a man) for 12 years prior to coming out and falling in love with Kristin Perry.  So she was able to testify to the difference between “legal marriage” and “domestic partnership”.  Judge Walker had sat quietly during the testimony of the other three plaintiffs, yet when Stier took the stand he asked her “if the state were to get out of the business of using the term marriage, but created another name for it for all people, domestic union or whatever, would not that put you on the same plane as all others?”

Sandy says I believe so. Yes. If we had the same access, I’d feel equal.

Judge: Even though the term marriage is not used?

Sandy: Yes, because if it’s not a legal status sanctioned by the state or government, I’d not have to worry about access to it because no one else would either.”

(from Prop 8 Trial Tracker Live Blogging)

This was an interesting moment in the trial, and surely not one that Bois and Olson relished given their effort to establish that marriage is a sacred and fundamental institution that all people would, no should, want to participate in.  That the only plaintiff who has been in a heterosexual marriage testified that she’d be ok with a non-marital civil status, so long as that’s what everyone else got, undermines the plaintiffs’ lead argument that “Marriage promotes economic, mental, physical strength. It is the building block of our society.”  See Olson’s commentary in Newsweek explaining why he got involved in the case:

Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one’s own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.

As I’ve blogged before, the argument being made in these cases that presupposes a teleology of intimate affiliation, culminating in marriage, and that sets up marriage as the domain of respectability and moral worth is quite troubling.  It signals a deeply conservative commitment to a particular form of human attachment, a traditional notion of family, and a particular form of legibility that both deserves and demands state recognition: look at us, we’re just like you, our relationships (not those other, less committed, more fluid, confusing and queer ones) cannot and will not pose a threat to the institution of marriage and the building blocks of society.

There are all sorts of reasons to be concerned about this argument – I won’t rehearse them here.  But let’s hope the trial shifts to the equality argument soon.  I like that one a lot more.  Day two begins shortly…


  1. WOW!This is a cool information.But I can’t subscribe.Is there any problem with subscription?

  2. Thanks a lot, I have been recently interested in information on this topic for a long time and your own is the foremost We?ve found until now.

  3. Hiya, I am really glad I have found this info. Today bloggers publish only about gossips and internet and this is really frustrating. A good web site with interesting content, that’s what I need. Thanks for keeping this web-site, I’ll be visiting it. Do you do newsletters? Cant find it.

  4. Wholesale Yankee Candles…

  5. There are certainly numerous details like that to take into consideration. That could be a great level to carry up. I offer the thoughts above as general inspiration however clearly there are questions just like the one you deliver up the place the most important factor can be working in honest good faith. I don?t know if greatest practices have emerged around things like that, however I’m certain that your job is clearly identified as a fair game. Each girls and boys feel the impact of just a second’s pleasure, for the rest of their lives.

  6. more and more affordable. This also means…

  7. Reall nice blog…

  8. These days of austerity in addition to relative anxiety about having debt, most people balk against the idea of using a credit card in order to make acquisition of merchandise or maybe pay for any gift giving occasion, preferring, instead only to rely on a tried and trusted method of making payment – raw cash. However, if you possess cash on hand to make the purchase completely, then, paradoxically, that’s the best time to be able to use the cards for several factors.Business News

  9. far east organization service apartment…

  10. nice one

  11. I agree

  12. Hi there! Someone in my Myspace group shared this site with us so I came to give it a look. I’m definitely loving the information. I’m bookmarking and will be tweeting this to my followers! Outstanding blog and wonderful style and design.

  13. Thanks for making the honest attempt to speak about this. I believe very robust approximately it and want to read more. If it’s OK, as you gain more in depth wisdom, would you thoughts adding extra articles similar to this one with additional information? It might be extremely useful and useful for me and my friends.

  14. I simply must tell you that you have written an excellent and unique article that I really enjoyed reading. I’m fascinated by how well you laid out your material and presented your views. Thank you.

  15. Interesting website, i read it but i still have a few questions. shoot me an email and we will talk more becasue i may have an interesting idea for you.

  16. I simply wanted to thank you a lot more for your amazing website you have developed here. It can be full of useful tips for those who are actually interested in this specific subject, primarily this very post. Your all so sweet in addition to thoughtful of others and reading the blog posts is a great delight in my opinion. And thats a generous present! Dan and I usually have enjoyment making use of your recommendations in what we need to do in the near future. Our checklist is a distance long and tips will certainly be put to excellent use.

  17. Finding the Right Immigration Solicitor… […]below you’ll find the link to some sites that we think you should visit[…]…

  18. Howdy! I could have sworn I’ve been to this website
    before but after checking through some of the post I realized it’s new to me.
    Anyways, I’m definitely delighted I found it and I’ll be book-marking and checking
    back frequently!

  19. It’s a difficult choice among Domino Presley and Jane Marie, they both are sexy as hell!

  20. Woah! I’m really enjoying the template/theme of this website.
    It’s simple, yet effective. A lot of times
    it’s difficult to get that “perfect balance” between superb usability and appearance.
    I must say you’ve done a superb job with this. In addition, the blog loads very quick for me on Chrome.
    Superb Blog!

  21. Memory leak errors can start happening out of the blue and they
    can make using your computer next to impossible. Skype uses its own proprietary method of
    communication there have been some attempts to generate video gateways from video conference rooms to
    Skype clients but all have had limited success maybe things will change on this front with the Microsoft acquisition of Skype Resolver Grab Any
    IP Software Resolve although they may well tighten up further and only enable Skype to assist their own Lync offering.
    Besides fixing runtime error R6016, it will remove any registry errors, invalid shortcuts, duplicate files and repair no matter EXE or DLL files, like Psapi.

  22. If you’ve had a job for a long time, than you meet the minimum criteria that will get you the money that you need fast.

  23. Appreciate it intended for a different essential document. Wherever else can any individual get in which form of info in their normal comprehensive technique of composing? I’ve the presentation newly arriving 7 days, along with I will be on the lookout for these kinds of data.

Add a comment

Comments are subject to moderation and do not necessarily reflect the opinions of
Columbia Law School or Columbia University.



"Homeland" Security Abortion Rights Activism Adoption adultery Advocacy Affordable Care Act Alien Tort Claims Act Amicus Brief Asylum Bankruptcy BDS Bullying Census Politics Children Citizenship Civil Unions Clinic Columbia Law School Compulsory Marriage Condoms Contraception Contraception Mandate Cordoba House Criminal Law Cures for Homosexuality Defense of Marriage Act Disability Rights Discrimination Divorce Domestic Partnership Domestic Violence Domestic Workers Don't Ask Don't Tell Earth Day Economic Justice Education Egypt Elections Employment Discrimination ENDA Estate Planning Events Family Law Fellowships femininity Feminism Free Speech Gender and Technology Gender Identity Discrimination Gendering the Economy Gender Justice GSL Online Haiti Hate Crimes Health Care Hilary Clinton Hillary Clinton Hiring HIV HIV Discrimination Hobby Lobby Homelessness Homophobia Housing Human Rights Identity Politics Illegitimacy (sic) Immigration Reform In-ing Incest India International Law Intersectional Feminism Islamophobia Israel Jobs Justice Sotomayor King & Spalding Labor Trafficking Land Reform Law School Legal Profession Legal Scholarship Lesbian & Gay Parenting LGBT Parenting Marital Status Discrimination Marriage Marriage Equality Masculinity Medicaid Michelle Obama Migration Military National Security Obama Administration Obama Appointments Obergefell Outing OWS Palestine Parenting Pinkwashing Policing Politics of the Veil Polyamory Popular Culture Pornograpy Pregnancy Presidential Politics Prisons Privacy Products Liability Profanity Prop 8 Prosecutorial Discretion Publications Public Rights/Private Conscience Public Rights/Private Conscience Project Queer Theory Queer vs. Gay Rights Race and Racism Racial Stereotyping Rape Religion Religious Accommodation Religious Exemption Religious Exemptions Religious Freedom Restoration Act Religious Fundamentalism Reproductive Rights Reproductive Technology RFRA Romania Rwanda Sartorial Commentary Schools Sex Discrimination Sex Education Sex Stereotyping Sexting Sex Trafficking Sexual Assault Sexual Duplicity Sexual Harassment Sexual Health Sexuality and Gender Law Clinic Sexual Orientation Discrimination Sex Work Silencing of voices SMUG Sodomy Law Reform Solidarity Sports Supreme Court Surrogacy Technology Title IX Trafficking Transgender Uganda Uncategorized Violence Women and Poverty Women of Color Work Zimbabwe

Academic Calendar  |  Resources for Employers  |  Campus Map & Directory  |  Columbia University  |  Jobs at Columbia  |  Contact Us

© Copyright 2009, Columbia Law School. For questions or comments, please contact the webmaster.